Immigration Bill Passes Senate; Same-Sex Couples Get Green Cards

The 2013 American Immigration Lawyers Association (AILA) annual conference just wrapped up last weekend. I attended eighteen fascinating sessions dealing with business immigration, family immigration and removal defense. The conference coincided with the Senate's vote on a comprehensive immigration reform measure, which passed by a vote of 68 to 32. It was almost surreal to watch the vote occur on a large screen television in the presence of 2,000 other immigration lawyers.

The Senate bill moves next to the Republican-controlled House of Representatives, where speaker John Boehner has vowed to take up a vote on an immigration bill -- not the historic bipartisan immigration bill that was just passed in the Senate, mind you -- only with the support of a majority of House Republicans. The House has already drafted, but not yet introduced, separate bills which emphasize more visas for businesses and entrepreneurs, with increased border security and enforcement, but which contain no legalization provision for illegal residents.

My take on the situation in Congress is that comprehensive immigration reform will either get done in 2013 or not at all. If it does get done, then the final version of the bill will probably have a lot of good things in it for business but will look a lot less friendly to the 11 million undocumented who yearn for an earned path to citizenship than the current Senate bill. If it does not get done, then guess which political party's nominee for president will not win the election in 2016.

History was also made last week when the United States Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Same-sex married couples are now eligible to apply for immigration benefits previously denied to them on account of their sexual orientation. The United States Citizenship & Immigration Services (USCIS) is falling in line behind the Supreme Court's decision and has pledged to recognize the validity of same-sex marriage between a U.S. citizen or lawful permanent resident and a non-U.S. citizen. The Supreme Court's ruling means that same-sex bi-national couples will no longer face the automatic choice of staying together, but leaving the U.S., and splitting up.

While I am encouraged by the agency's response to the end of DOMA, I would caution same-sex married couples who are considering filing to expect heightened scrutiny of their petitions, particularly as to the bona fides of their marriage, as many adjudicating officers in USCIS may well disagree with the Supreme Court's ruling and exhibit unfavorable bias in their adjudications. In these early days of post-DOMA, submitting well-documented, attorney-prepared immigrant visa petitions to USCIS and being fully prepared for difficult questioning at the time of the adjustment of status interview will be more important than ever.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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