The 5 Biggest Immigration-Related Acts and Cases in US History

It’s November already, can you believe it? In addition to colder temperatures and the end of daylight savings times (hello, darkness!), it’s also time for the most “American” of holidays—Thanksgiving. While the history of Thanksgiving is much more complicated than what is commonly taught in schools, it’s nevertheless an opportune time to reflect on our presence in this country as immigrants, refugees, and, yes, colonizers, and also reflect on how we have historically treated other immigrants and refugees. To that end, we are looking back at five major acts and cases in US history that have shaped and influenced US immigration law and policy.

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DOMA and Same-Sex Marriages Q&A

Last week my colleague Matt Bray described the history of the Defense of Marriage Act (DOMA) and background to the Windsor decision overturning DOMA. As a followup to that post and also inspired by the helpful Q&A on the US Citizenship & Immigration Services (USCIS) website, this post aims to provide some practical answers to commonly asked immigration-related questions in the aftermath of the decision.

Given the previous record of treatment by the US government and USCIS, some same-sex couples are understandably cautious about moving forward. That said, the US government has made it clear that same-sex married couples can (and should) expect equal treatment under the law. Practically, though, what does that mean?

My partner and I have entered into a civil union. Is that the same as a marriage for immigration purposes?
No. Only legal marriages are considered for immigration purposes. For the marriage to be legal, the marriage must have taken place in a jurisdiction (i.e., a US state or foreign country) where same-sex marriage is legal.

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NY Daily News: "Same-sex couples in NYC celebrate green cards after long battle"

After spending two decades as an undocumented immigrant, Venezuelan-born playwright Pablo Garcia (who overstayed his immigration status to be with his US-citizen husband Santiago Ortiz) has received his Green Card. The NY Daily News reports:

For most of their long relationship, Ortiz, 57, a retired school psychologist, was unable to sponsor Garcia — and being unable to leave the U.S. and return meant Garcia missed both of his parents’ funerals.

Their situation changed in June, when the Supreme Court struck down a federal law against gay marriage. Months later, some of the first same-sex New York City couples — including Garcia and Ortiz — have now been granted immigration benefits like permanent residency.

The article includes two other same-sex couples where one of the spouses has received a Green Card as a result of the DOMA repeal.

USCIS has a helpful Q&A regarding how the DOMA repeal applies to immigration cases. While the release states USCIS will work internally to identify and re-open cases (including the I-130 Petitions for Alien Relative, I-485 Adjustment of Status Applicants, and I-765 Employment Authorization Applications) denied solely based on DOMA section 3, it includes instructions for contacting USCIS to "alert" them of such cases. Importantly, the release notes: "For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition."

USCIS also states regarding same-sex married couples who reside in a state where such a marriage is not recognized: "As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes...The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid."