The running joke among immigration attorneys is that sweeping changes to immigration law only occur during the annual American Immigration Lawyers Association (AILA) conference. Last year the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) process while the year before, Immigration and Customs Enforcement (ICE) released a memo allowing its officers to use discretion when prosecuting non-citizens.
This year was no exception. I was attending the annual AILA conference in San Francisco last week when two historical events occurred: On Wednesday, the Supreme Court struck down a portion of the Defense of Marriage Act (DOMA), opening the door for same-sex married couples to obtain immigration benefits under the law. Then, on Thursday, the Senate voted overwhelmingly (68-32) to pass an immigration reform bill that would give legal status to certain individuals and strengthen our immigration laws as a whole.
The Death of DOMA
DOMA, which defined marriage as a "legal union between one man and one woman," was signed into law by President Bill Clinton in 1996. This federal law made same-sex married couples ineligible for the federal benefits provided to other married couples, even if the state they were living in recognized gay marriage. This meant that until last Wednesday, many same-sex married couples were denied, among others, Social Security, tax, healthcare, and immigration benefits.
The Supreme Court ruled 5-4 in U.S. v. Windsor that defining marriage in this manner is unconstitutional. Justice Anthony Kennedy, writing for the majority, described the law as a violation of basic due process and equal protection principles.
So what is the result of this decision? If a same-sex couple is legally married, that couple can now receive federal benefits that opposite-sex married couples receive, including the ability to petition for their spouse to receive a green card.
During the AILA conference, speakers from the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) informed the crowd of attorneys that their agencies would be working quickly to adapt their processes to the change in the law. USCIS Director Alejandro Mayorkas announced that his agency had been tracking denied same-sex petitions for the past two years for individuals whose marriage did not meet the federal definition of marriage. Cheers and thunders of applause were heard as conference attendees reacted to the news.
Last Friday, the dream started to become a reality when a gay man living in Florida received notice that his green card would be approved based on his marriage to a male U.S. citizen. Though USCIS and DOS processes haven't been officially announced, it appears that applications that were previously denied will be automatically reopened for processing. Same-sex couples who have waited to file their green card applications can begin the process today in the same manner as other married couples.
Senate Votes Yes on Immigration Reform
In a historic vote last Thursday, 68 Senators voted Yes on a bill that would create a path to legalization for millions of undocumented residents in the U.S. To signify the importance of this vote, Vice President Joe Biden presided as head of the Senate while Senators voted one by one from their desks by calling out "aye" or "no."
The passage of this immigration reform bill is big news for immigration advocates, as we are now one step closer to achieving much-needed reform in our complex system of immigration laws. However, the road ahead is still long and arduous. Before the bill becomes a law, it must be voted on and agreed upon by the House of Representatives. Speaker of the House John Boehner has indicated that he will not move a vote forward in the House until a majority of House Republicans are in agreement with the contents. This may lead to a much more conservative bill being developed in the House.
It is difficult to say whether immigration reform will be passed by both chambers of Congress this year. However, with Mitt Romney only gaining 27 percent of the Hispanic vote in the November 2012 presidential election, many Republicans have changed their viewpoint from preceding years and are ready to pass some form of immigration reform. President Obama is urging the House to take action before the August recess.