Last month, the US Supreme Court decided that the Defense of Marriage Act (DOMA) is unconstitutional. Essentially, DOMA was a federal law that defines a legal marriage as that between a man and a woman. By striking it down as being unconstitutional, this meant that laws in various states allowing same sex marriages are now considered legal.
This major US Supreme Court decision has far-reaching ramifications. For all practical and theoretical purposes, same sex spouses will now be treated legally as similar to opposite sex spouses. They will have the same legal benefits and liabilities as opposite sex spouses. For example: Real or personal property, acquired during marriage, generally becomes community property (unless the source of the acquisition funds is identified and recognized as separate property belonging to only one of the spouses). The debt of one party generally also becomes community debt with some exceptions.
Issues re social security benefits, pension rights, insurance coverage, widow or widower benefits, estate inheritance, etc. – are all affected.
Shortly after the US Supreme Court decision, US Homeland Security Secretary Janet Napolitano issued a directive that henceforth, same sex spouses will have the same benefits under the US immigration laws as opposite sex spouses. For example: Immigrant visas can now be filed by US citizens for their same sex spouses; Those entering the US on nonimmigrant working visas or investors’ visas can also now include their same sex spouses as their dependents.
But these same sex spousal benefits are conditional on the marriage being legal in the country or state where it took place. Currently, there are 15 countries including the US where same sex marriage is considered legal: Belgium, Netherlands, South Africa, Norway, Uruguay, Argentina, Spain, Canada, France, New Zealand, Iceland, Portugal, Sweden, Brazil.
For countries where same sex marriage is not legal like the Philippines and others, many ask me if there are other alternatives to bring their same sex boyfriends or girlfriends to the US.
One way of course is to go to any of the mentioned countries above and get married there. But this involves securing visas, hotel and travel expenses, lengthy travel times, language problems, making marriage arrangements and other hassles.
In my column article three weeks ago, I suggested utilizing fiancée (or fiancé) visa petitions, which I conjectured, could be a viable option. I theorized that even if the couple is not yet married, they will be getting married in the US in a state (like California) where same sex marriage is now legal. I figured that Secretary Napolitano, a reasonable person and other equally reasonable people involved in determining immigration policy – would not object to fiancée visa petitions in same sex relationships – as it is in keeping with the spirit of the law. I figured correctly.
Six days ago, Napolitano issued another official directive to the US Immigration and Citizenship Services (USCIS) – stating that henceforth, I-129 Fiancée Visa petitions by US citizens in same sex relationships will be honored and processed by her agency. This is a tremendous benefit for those coming from countries like the Philippines where same sex marriage is not considered legal. They can now come to the US on fiancée visas and get married here.
Currently, the processing time for fiancée visa petitions is from five to eight months. When the fiancée arrives in the US, the couple needs to get married within 90 days after which the fiancée may apply for adjustment of status to secure her immigrant visa.
As in so many other immigration law matters, certain complex issues and details are involved.
The services of competent and honest immigration lawyers can be very valuable. But please, be careful of crooks and scammers. I consistently warn immigrant communities and individuals about: 1) Non-licensed individuals practicing law or doing illegal things. 2) Licensed lawyers who file frivolous asylum claims which may temporarily provide employment authorization to applicants but which are eventually denied administratively subjecting applicants to removal proceedings in court. 3) Licensed lawyers who advertise heavily and charge clients enormous fees.
Many of these lawyers who advertise heavily are not even officially certified by the State Bar as Specialists or Experts in Immigration Law – but charge even as much as 15 times more than Certified Expert-Specialists. Who do you think pays for their costly advertisements?
Call the State Bar to verify whether a lawyer is a certified Immigration Law Specialist or Expert.
For the California State Bar telephones: Northern California 415-538-2000 , Southern California 213-765-1000 State Bars regulate lawyers.
To be fair, even those lawyers not certified as Expert-Specialists in Immigration Law by the State
Bar in a state is not prohibited from practicing Immigration Law. But being officially certified as an expert guarantees the client that the lawyer knows his stuff. To be a certified Expert Specialist, the lawyer must pass a difficult set of exams and must have had extensive experience in practically all the different kinds of immigration law cases.
It’s a good idea to consult with two or three lawyers before deciding on which one to retain. This is money well spent. A competent honest lawyer can really help and can save the client a lot of headaches and money.
From 1990 to 2008, a Filipino-American woman who styled herself as a “Bonded Immigration Law Consultant” – operated offices in different parts of the US purportedly providing legal services to mostly Filipino immigrants. She had offices in San Jose, La Jollla, Beverly Hills and New York City.
In 2008, federal authorities raided her offices and seized her files. According to the charges filed against her, she victimized numerous unsuspecting undocumented immigrants charging them more than $7000 each – giving them the false promise that they would eventually get their immigrant visas if they have an approved Alien Labor Certification from the Department of Labor and an employment based petition filed for them. The reality is that in general, an undocumented or overstaying alien cannot adjust his or her status on the basis of an employment-based petition.
Most of the woman’s victims were either Filipino owners of care or nursing homes who paid for her fees or undocumented immigrant employees of these facilities who gave her monthly payments from their limited incomes. After more than three years of investigation, a federal grand jury indicted her in May 2010. She is charged with numerous counts of immigration, mail and tax fraud. Federal authorities allege that she earned millions that she did not properly declare in her income tax returns. Her case is ongoing.
Unsuspecting hardworking innocent undocumented immigrants with limited resources eager to legalize their papers – often fall victims to greedy no-compassion scammers who cause them so much pain and suffering. So – be careful.
Note: The California State Bar honors Atty. Ted Laguatan as one of less than 29 US lawyers officially certified continuously for almost 25 years now as Expert-Specialists in Immigration Law. He also does human rights, accident injury and wrongful death cases. For communications (San Francisco area): 455 Hickey Blvd. Ste. 516, Daly City Ca 94015. Tel 650-991-1154 Fax 650-991-1186 email: laguatanlaw@gmail.com