USCIS and State Department Issue Guidance on Immigration Benefits for Same-Sex Couples

Recently, both U.S. Citizenship and Immigration Services (USCIS) and the Department of State issued FAQs in response to the Supreme Court's June 26, 2013 decision in United States v. Windsor, which struck down key provisions of the Defense of Marriage Act (DOMA) as unconstitutional. DOMA had prohibited the federal government from conferring immigration and other federal benefits enjoyed by heterosexual married couples on same-sex married couples. Following the Supreme Court's decision in Windsor, USCIS estimates that approximately 30,000 same-sex bi-national couples may now be eligible to apply for various immigration benefits.

The USCIS FAQ notes that U.S. citizens or lawful permanent residents in a same-sex marriage may now sponsor their spouses for family-based permanent residence status. The FAQ cautions, however, that only those marriages that took place in a state or foreign country in which same-sex marriage is permitted will be recognized, since USCIS looks to the law of where the marriage took place when determining whether the marriage is valid for immigration purposes. In addition, the State Department FAQ notes that same-sex spouses and their children are now equally eligible for nonimmigrant derivative visas, including H-4, L-2, O-3, E-2, J-2 and TD (TN derivative) status.

Comprehensive Immigration Reform Passes Senate, but Stalls in House

In late June, the full Senate passed a comprehensive immigration bill, S. 744. Key provisions include a lengthy pathway to lawful permanent residence for undocumented immigrants; increased enforcement and border control measures; the implementation of a mandatory e-Verify employment verification system for all employers; and an increase in the annual H-1B cap, while also imposing brand new H-1B recruitment requirements. On the House side, the situation is very different. Key members of the House of Representatives, including House Speaker John Boehner, have signaled that they have no intention of taking up the Senate's immigration bill. We expect that the House will instead take a piecemeal approach to immigration reform, with increased enforcement (both interior enforcement and border security) on the agenda before all other immigration topics.

Customs and Border Protection Expands Global Entry Program

Last month, Customs and Border Protection (CBP) announced it would expand eligibility for participation in Global Entry, a program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States, to citizens of South Korea and Germany who are enrolled in those countries' own trusted traveler programs. In addition, CBP announced that citizens of the United Kingdom who frequently travel to the U.S., as well as certain Qatari nationals, will also be eligible for enrollment in the program. Those Qatari and UK citizens potentially eligible for participation will be individually notified and invited to apply. (CBP has noted that it expects to expand Global Entry enrollment eligibility to all German, Qatari, and UK citizens, once certain program infrastructure expansions have been completed.) 

Though intended for frequent international travelers, there is no minimum number of trips necessary to qualify for the Global Entry program. Travelers must submit an online application to Customs and Border Protection (CBP) and pay a $100 fee. CBP screens the application and contacts the applicant to schedule an in-person interview, which normally takes place at a Global Entry-participating airport. Once approved, travelers may enter the United States by using automated kiosks located at select airports. Global Entry kiosks are now available in most major U.S. airports, including JFK, Newark, Washington (Dulles), Los Angeles/LAX and San Francisco/SFO, as well as major airports in Canada (including Toronto (Pearson), Montreal and Calgary) and several airports in Ireland. Information about the Global Entry Program and how to apply is available at http://www.globalentry.gov/about.html.

Department of Justice Cautions Contractors Against Requesting I-9 Documentation 

Last month, the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued an advisory letter warning that an employer who hires a sub- contracted employee, and who asks that employee to re-prove his or her employment eligibility, may be in violation of the Immigration Law's anti-discrimination provision. As with all employers, sub-contract employers and staffing agencies are responsible for completing I-9s to document the U.S. work authorization of each of its employees. According to the OSC, if the general contractor subsequently asks the contract employee or consultant to demonstrate his or her work authorization a second time, problems may arise. For example, the contract employee may no longer have access to the work authorization documents he or she originally presented for a variety of reasons. If the contract employee is then subsequently barred from employment at the client site, the employer may potentially allege that the client site employer engaged in an unlawful discriminatory I-9 practice in seeking to improperly re-verify his or her employment authorization. 

This Opinion serves as a helpful reminder that employers need not, and should not, complete Form I-9s for any sub-contracted consultants stationed at their worksite. It is solely the consulting or staffing agency's responsibility to verify and document the work authorization of these workers. 

Labor Certification Registry Now Available Online 

On July 1, the U.S. Department of Labor (DOL) announced the implementation of the Labor Certification Registry (LCR). The LCR provides the public with searchable access to redacted copies of all certified H-1B, H-1B1, and E-3 Labor Condition Applications (LCAs) as well as all certified permanent labor certification applications (PERMs) dating back to April 15, 2009. The site also provides public access to the DOL's quarterly and annual LCA and PERM case statistics. The registry can be accessed online at http://icert.doleta.gov.