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DHS Begins Implementing Decision on DOMA
On Wednesday, June 26, Secretary of Homeland Security Janet Napolitano announced that DHS would immediately begin to implement the Supreme Court decision invalidating section 3 of the Defense of Marriage Act. In a statement, Napolitano said that the provision had “denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” and pledged going forward that “all married couples will be treated equally and fairly in the administration of our immigration laws.” For more information, see http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act (“Implementation of the Supreme Court Ruling on the Defense of Marriage Act”).
According to media accounts, a same-sex couple in Florida received word on Friday, June 28, that the Department had approved their immigrant visa petition (Form I-130). Another couple received an almost-last-minute reprieve when the decision came down. See the New York Times story For Gay Immigrants, Marriage Ruling Brings Relief and a Path to a Green Card, at http://www.lexisnexis.com /legalnewsroom/immigration/b/outsidenews/archive/2013/07/01/unpub-bia-on-in-absentia-order-matter-of-malvais-hernandez.aspx. A third story about the effects of the decision on potential immigrants, from CNN, can be found at /legalnewsroom/immigration/b/outsidenews/archive/2013/06/28/doma-ruling-opens-doors-for-immigration-for-same-sex-spouses.aspx. The DOMA ruling itself, in United States v. Windsor, is available at 2013 U.S. LEXIS 4921 (June 26, 2013).
At the annual conference of the American Immigration Lawyers Association, outgoing USCIS Director Alejandro Mayorkas told attendees that the agency has maintained a list of all immigrant visa petitions filed since early 2011 by same-sex couples.
BITS AND PIECES
Senate Passes Immigration Reform
On June 27, the Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, by a vote of 68-32. The bill passed with the support of fifty-four Democratic or Independent senators and fourteen Republican senators. See commentary on the bill’s passage by BIB Editorial Board member Stephen Yale-Loehr on the LexisNexis Legal Newsroom™ for Immigration, at http://www.lexisnexis.com/ legalnewsroom/immigration/b/outsidenews/archive/2013/07/01/lexisnexis-expert-steve-yale-loehr-on-the-fence-and-the-house.aspx.
House of Representatives Committee Approves Visa Bill
Also on June 27, the House Judiciary Committee passed the Skills Visa Act sponsored by Rep. Darrell Issa (R-Calif.). Among other things, the bill would increase the annual H-1B cap to 155,000; create 55,000 immigrant visas for foreign graduates with advanced STEM degrees; eliminate the per county quota on employment-based visas; and eliminate the diversity visa program and the family-based fourth-preference category for siblings of U.S. citizens. The bill, H.R. 2131, passed 20-14.
U.S. Supreme Court Activity
On June 20, the Supreme Court issued a decision in Descamps v. United States, No. 11-9540, limiting the circumstances in which criminal and immigration judges may resort to the modified categorical approach. The Court’s decision, which overrules United States v. Aguila-Montes de Oca, 655 F. 3d 915 (2011) (en banc), held that the modified categorical approach does not apply to statutes that contain a single, indivisible set of elements. The Supreme Court also granted certiorari in a Child Status Protection Act case, Mayorkas v. De Osorio, 2013 U.S. LEXIS 4878 (June 24, 2013). The Ninth Circuit decision is summarized, with cross-references to other coverage of the issue, at 18 Bender’s Immigr. Bull. 15 (Jan. 1, 2013).
Justice Department Settlements in I-9 Cases
The Justice Department and Macy’s Retail Holdings have agreed to settle claims that Macy’s discriminated against noncitizen employees between April 2010 and June 2013 during the I-9 re-verification process. The DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices had received complaints on its hotline. Macy’s agreed to pay civil penalties of $175,000 and to establish a compensation fund of $100,000 for employees harmed by Macy’s conduct. Among other things, Macy’s will be monitored by DOJ and have reporting obligations for two years.
The DOJ also agreed to a settlement with Vincent Porcaro Inc. as to discrimination against noncitizens in the I-9 process. VPI agreed, among other things, to pay more than $43,000 in civil penalties, set up a $30,000 fund for individuals harmed, and be monitored for two years.
Corrected Settlement Notice in Asylum Clock Case
U.S. Citizenship and Immigration Services issued a corrected settlement notice in B.H. v. USCIS, No. 11-2108 (W.D. Wash.) (formerly known as A.B.T. v. USCIS), a nationwide class action challenging the implementation of the “clock” used to determine asylum applicants’ eligibility for employment authorization documents. The corrected notice states that the date of the fairness hearing is September 20, 2013, not September 30, 2013. The text of the notice is reprinted at Appendix A.
Labor Certification Registry Is Live
DOLETA’s Office of Foreign Labor Certification reports that its Labor Certification Registry went live July 1. Go to http://icert.doleta.gov/index.cfm?event=ehLCJRExternal.dspLCRLanding.
[This is an excerpt from the July 15, 2013, issue of Bender's Immigration Bulletin.]
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