Earlier this year, the Supreme Court struck down section 3 of the Defense of Marriage Act of 1996 (DOMA) in US v. Windsor (113 S.Ct. 2675 (2013)). Without missing a beat, immigration courts began granting visas to same-sex marriage couples. Even the Secretary of Homeland Security, Janet Napolitano, issued a statement directing US Citizenship and Immigration Services (USCIS) to begin reviewing same-sex spousal immigration visa petitions. (http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act). While the decision in Windsor was a human rights success, it may not be the end of the story for same-sex marriage visas.

In Adams v. Howerton, a Ninth Circuit immigration case from 1982, the court upheld a then Board of Immigration Appeals (BIA) decision to deny an immediate-relative (by spouse) visa to Sulivan, a non-citizen, who was married to his US citizen partner, Adams. The visa petition was originally denied by the Immigration and Naturalization Service (INS), which noted that US immigration laws do not recognize same-sex marriages. After the BIA affirmed the INS decision, the couple appealed to the court.

In upholding the INS and BIA decision, the court, in Adams, held that federal law determines the meaning of “spouse” for the purposes of immigration law. The court went on to hold that Congress did not intend to include same-sex couples within the federal definition of “spouse.” The most significant part of the court’s holding is that equal protection did not apply because Congress has plenary power over immigration–making the review only one of rational basis instead of stead of strict or even intermediate scrutiny.

Perhaps even more important about the decision in Adams is that it was fourteen years before DOMA even existed. This means that allowing or denying an immediate relative visa for a same-sex married partner does not necessarily turn on whether DOMA is the law or not.

The current trend has been positive, and human rights appears to be winning out. However, until the law has been explicitly changed to account for homosexuality and same-sex marriages, the decision to allow or disallow immediate-relative visa petitions for couples will remain at the whim of individuals who can make discretionary decisions.

The quota and presence system in U.S. immigration law sets limits on how many immigrants can legally enter the United States. For family-sponsored immigrants, the number to keep in mind is 480,000. While the number is actually trickier than that (the actual formula is 480,000 minus the number of per year immediate relative visas issued plus 140,000 minus the number of per year employment based visas issued with a minimum of 226,000 available), for our purposes today, we will simply stick with the starting number of 480,000. That is it. That is the number listed in the law as to how many family-sponsored immigrants are allowed each year. The number is largely inflexible. However, that number is also not without exceptions.

For family-sponsored immigration today, the devil is in the details. Or in this case, how words are defined. Specifically, the term “immediate relative” is critically important to family-sponsored immigration. The current law exempts immediate relatives from the quota and preference system. The theory is, we do not want to separate families. It is generally not seen as a good or healthy thing to do. Even though immediate relatives are exempt from the quota, it is important to note that immediate relatives do use up quota numbers that would otherwise allow non-immediate relatives to immigrate. (8 USCA § 1151(c)).

What exactly does immediate relative mean? Does it mean all of your children? Your grandparents? Your aunts and uncles? Your brothers and sisters? The Immigration and Nationality Act (INA) gives us a definition for immediate relatives: “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” (8 USCA § 1151(b)(2)(A)(i)). One might be tempted to feel content with this definition, since it seems to essentially allow all children, spouses, and parents. However, it is also important to note that the US Citizenship and Immigration Services (USCIS) further defines “child” as an unmarried son or daughter under the age of 21. (http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=51ea3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=51ea3e4d77d73210VgnVCM100000082ca60aRCRD). Thus, if a child is either married or at least 21 years of age, that child no longer qualifies as an immediate relative even if that child is still a dependent of his or her parents regardless of the reason.

Immediate relatives can be a complicated area of immigration law to navigate and despite the fact that the laws were designed under the pretext of family unity, the actual application of these laws often falls short of unity.

Come back tomorrow where the focus will be on same-sex marriage in immigration law, and how US v. Windsor will or will not affect same-sex marriage in immigration in the long term.

This is Part 2 in a series focusing on immigration law

Immigration law is a vastly complex system. It uses quotas and preferences to determine who can immigrate to the U.S., but those quotas and preferences also have a limit to the maximum number of visas allowed at 675,000 per year; this is the combined amount for family and employment-based immigration. (8 U.S.C.A. § 1151 (2009) (480,000 for family-sponsored, 140,000 for employment-based, and 55,000 for diversity)). There is a separate number, however, that is set on a yearly basis strictly for refugees. (8 U.S.C.A. § 1157(a) (2009) (The number of allowed refugees is to be set each year by the President, but can be readjusted based upon unforeseen emergency situations.)).

As noted above, the quota system is divided into three general areas: family-sponsored immigrants, employment-based immigrants, and diversity immigrants. Each of these three general areas uses a formula to determine exactly how many immigrants in each of the three categories may receive visas in a particular year. For example, for family based immigrants, who are not immediate family members is 480,000 minus the number  of per year immediate relative visas already issued
plus 140,000 minus the number of per year employment based visas issued with a minimum of 226,000 available. To make that more visually comprehensible, it looks like this:

(480K – PYIRs) + (140K – PYEBs) =  # of visas (> 226K)

Thus, there will always be at least 226,000 family based immigrant visas available each year. It also means that there is a maximum number of visas available each year (see the equation above).

But what does this mean in terms of immigration? It means that the system becomes severely backlogged. This is particularly true for family-based immigration. The U.S. actually releases, each month, a visa bulletin that lists data on wait times, cutoff dates, etc. based on a number of data points (family relation and country of origin). (http://www.travel.state.gov/visa/bulletin/bulletin_1360.html).

So, to run an example from the most current bulletin, if you were the unmarried son or daughter of a U.S. citizen, but you were a Mexican citizen, you would have had to file for citizenship before September 22, 1993. (http://travel.state.gov/visa/bulletin/bulletin_6062.html). You read that correctly. The system is so backlogged, especially for Mexicans (who have U.S. citizen family members), that as of the October 2013 visa bulletin, unmarried Mexican sons and daughters (of U.S. citizens, not Mexican citizens) who filed their visa petitions over twenty years ago are just now being processed to receive visas.

To be sure, there are people from other countries who are receiving their visas significantly more quickly (For example, unmarried Chinese sons and daughters who filed before October 1, 2006–a mere seven years ago–are now being processed).

Family-Sponsored
All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 01OCT06 01OCT06 01OCT06 22SEP93 01JUN01
F2A 08SEP13 08SEP13 08SEP13 01SEP13 08SEP13
F2B 01MAR06 01MAR06 01MAR06 08MAR94 08FEB03
F3 22JAN03 22JAN03 22JAN03 22MAY93 01JAN93
F4 08AUG01 08AUG01 08AUG01 15OCT96 22MAR90

Employment-based backlogs exist as well, although not as strikingly as family-based. Using the same visa bulletin as above, skilled workers, professionals, and other workers (with a maximum of 10,000 being “other workers”) who filed for an employment-based visa from Mexico by July 1, 2010 are now being processed, but the same type of workers from India who filed before September 22, 2003 are now being processed.

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st
C
C
C
C
C
2nd
C
15SEP08 15JUN08
C
C
3rd 01JUL10 01JUL10 22SEP03 01JUL10 15DEC06
Other Workers 01JUL10 22SEP04 22SEP03 01JUL10 15DEC06
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th
Targeted
Employment Areas/
Regional Centers and Pilot Programs
C
C
C
C
C

“C” means “current.” i.e. that visas are currently available to qualified applicants in that category

This is our current quota and preference system in American immigration law.

This is Part 1 in a series focusing on Immigration Law.

Immigration has been a hot item in the United States for some time. Immigration has been particularly relevant since the 2012 Presidential election. During the election, immigration became a central dividing issue between President Obama and Mitt Romney. In particular, Obama pushed for both reform and the passage of the DREAM Act, while Romney supported a self-deportation platform. (http://www.washingtonpost.com/blogs/post-politics/wp/2012/10/16/romney-and-obama-clash-on-immigration/).

Shortly after election, House Speaker John Boehner spoke out for the need to reform immigration law in America. (http://www.washingtontimes.com/news/2012/nov/8/boehner-says-house-will-act-immigration-bill/). The election made it clear that immigration reform was going to be necessary going forward. 71% of Hispanic voters chose Obama over Romney. (http://www.csmonitor.com/USA/DC-Decoder/Decoder-Wire/2013/0506/Immigration-reform-3-reasons-it-s-got-its-best-chance-yet). Moreover, polls were showing (and are continuing to show) that immigration reform is popular among a majority of citizens. (http://thehill.com/blogs/pundits-blog/immigration/299061-the-time-has-come-for-immigration-reform).

Perhaps the biggest concern to immigration reform today, however, is the recent government shutdown. Even though the shutdown has ended, the fact that it occurred for 16 days evidences a disconnect in Congress and an inability to accomplish significant legislative acts. More so than the mere act of the shutdown, the end result of the shutdown appears to have soured members of Congress on both sides. Democrats have noted that immigration should be the next issue to tackle, but some Republicans have noted how the recent turmoil complicates the issue. Representative Trey Gowdy, a House Republican on the immigration committee, recently responded to the Democratic call to pass immigration reform by saying, “good luck.” Gowdy notes that members in the House may feel as if, because the House did not achieve its goals through the shutdown, may feel as if they were treated as insignificant. (http://www.usatoday.com/story/news/politics/2013/10/17/government-shutdown-shift-immigration-reform/3000575/).

With all of the bickering and infighting that currently exists, it seems as if a miracle is needed to pass something like immigration reform. With that said, it is also evident that Republicans took the biggest hit through the shutdown. Passing something such as comprehensive immigration reform may be just the sort of thing that could help to repair their image.

A bipartisan, comprehensive immigration reform bill was passed by the Senate earlier this year, but the House has yet to take it up.

With time running short on when the government shutdown in Congress threatens to more significantly impact the United States, the U.S. Senate has unveiled a deal that would keep the government funded at least until January 15 and raise the debt ceiling until at least February 7. (http://www.cbsnews.com/8301-250_162-57607769/senate-announces-deal-to-end-government-shutdown-lift-debt-ceiling/). Of course, the Senate reaching such a deal should not really be too much of a surprise to anyone. The Senate was not the branch of Congress that decided to shutdown the government in the first place.

So what does the Senate’s deal mean for Congress, the government shutdown, the debt limit, or U.S. citizens? Not much. At least, not much yet. The deal must still be voted on. Perhaps the most promising evidence that the deal will go through is that House Speak John Boehner is encouraging House Republicans to vote for the deal. (http://politicalticker.blogs.cnn.com/2013/10/16/senate-reaches-deal-to-end-shutdown-avoid-default/?hpt=hp_t1).

Boehner, in what appeared to be an attempt to spin the shutdown in a more positive light, commented that “we fought the good fight, we just didn’t win.” (http://politicalticker.blogs.cnn.com/2013/10/16/senate-reaches-deal-to-end-shutdown-avoid-default/?hpt=hp_t1). This comment seems to imply that Boehner still believes that the government shutdown was still the right move.

Despite Boehner’s implication, his comment seems to lack economic sense. According to a study by IHS Global Insight, the shutdown has cost the U.S. $1.7 billion per week through a lack of economic output. The report also notes that each week of $1.7 billion in economic losses reduces the second quarter’s growth rate by 0.18 percentage point. (http://www.ihs.com/products/Global-Insight/industry-economic-report.aspx?ID=1065929352).

The IHS report is only looking at the economic losses due to the shutdown; other associated losses are not added into that report–such as loans, health risks (such as flu monitoring), head start programs, cancelled blood drives, immigration court hearings (including asylum hearings for persons in fear for their lives), among others.

Assuming that this deal will actually be reached, furloughed employees should expect to return to work on the next business day.

With the government shutdown now in its eleventh day, it is difficult not to wonder what the long term repercussions might be. While it appears as if the effect on government workers won’t be as bad as initially thought–now that a deal has been worked to ensure that government employees will be paid backpay for the time that they are not working–the effect on others that rely on government services will continue even after the shutdown ends.

One very important area that could suffer longer-term effects from this shutdown is agriculture. Farming can’t be paused simply because politicians on Capitol Hill decide on a shutdown. Crops continue to grow, and farmers rely on reports from the Department of Agriculture for data on national and global demand. According to CBS News, the latest of these reports (the World Agricultural Supply and Demand Estimates report, WASDE) was due today, but that report has been postponed during the shutdown. (http://www.cbsnews.com/8301-18563_162-57606987/government-shutdown-means-trouble-for-farmers-at-harvest-time/).

What does this mean for farmers across America? It means farmers are uncertain about the market and production/demand numbers. It also means that farmers cannot rely on crop insurance as that is guaranteed by a part of the government that is presently affected by the shutdown. It also means that farms cannot receive loans to pay impending bills. It is possible that these issues could have lingering effects through our commodities markets, and possibly at grocery stores. The latter is especially true if Congress does not sign a new farm bill by January 1. (http://abclocal.go.com/wls/story?section=news/consumer&id=9274535).

The truth is, many of the long term effects from the shutdown are still unknown. Business is presently being hurt and will continue to be even after the government is fully functioning simply due to the buildup of demands and needs that are not being met over time. Farmers face similar issues; while farmers might be able to store many of their commodities, such as grain, perishable goods like milk pose a larger problem. The more concerning issue, however, is around the corner. Whatever the longterm effects of the government shutdown, that will likely pale in comparison to the government not raising the debt ceiling.

For better or worse, the primary concern in Washington right now seems to be the need to create a temporary fix to the problem. While it may be completely necessary that some sort of quick fix be implemented, that does not change the fact that real, long term solutions need to be made. The United States has been without a real budget for five years. The longer all of this continues, the less credible we appear in the world economic market.

Small Business is at the heart of the American Dream. Yes, sure, people think of the image of the white picket fence when the words American Dream come to mind. But it’s more than simply about getting married and owning a house. It’s about starting something from nothing. Rising up and being successful. Americans are entrepreneurs. It’s in our blood.

Because small business is (or at least really should be) important to us as individuals, it means we shouldn’t take this government shutdown lightly. We’re now in the 10th day of the shutdown, and the government does not yet seem close to a resolve.

Sure, the list of non-essential personnel is shrinking–as it should the longer this goes on, but it still exists, and it’s hurting our economy and our businesses.

Earlier today, I read that the shutdown is preventing breweries from unveiling new beers. Why is that? It is because the Alcohol and Tobacco Tax and Trade Bureau (TTB, though I wonder where the A or other T went) must approve of any and all ingredients–particularly non-standard ingredients in beer. Recipes must be submitted, and reviewed before that beer can be sold. (http://www.usatoday.com/story/news/nation/2013/10/09/shutdown-closes-the-tap-on-new-beers/2955673/). So, thinking of starting up a new craft brewery? You might want to think again. At least while this shutdown is in effect. Also, once it eventually ends, the TTB will have to deal with the ever growing backlog of recipes first. Now, this will not affect your ability to buy or sell craft beers that were already approved, but it will stop the buying and selling of any new brews–which is common among craft breweries.

So, you might be thinking, this could be an issue on for breweries, but how does that affect other small businesses? Maybe the TTB does not hurt a lot of other businesses, but what about the Small Business Administration (SBA). The SBA is yet another governmental organization that is currently not open. The SBA assists small businesses in all areas: starting up, managing, grants and loans, and knowledge. Without the SBA, many small businesses are being, and will continue to be, hurt.

The New York Times reported today on just such a company that is presently being harmed by the shutdown. TL Technologies, a manufacturing company, was prepared to grow and expand. They were expected to receive a $1.5 million loan, which would have been supported by the SBA, for the purpose of expansion. But the government shutdown prevented that from happening. Eventually, TL Technologies managed to receive temporary funds, but the delay and confusion has negatively impacted the business. SBA itself is still shutdown. (http://www.nytimes.com/2013/10/10/business/smallbusiness/shutdowns-effects-begin-to-ripple-through-small-businesses.html?_r=0).

Yahoo news reports that other business are not receiving funds owed to them on government contracts because of the shutdown. Other companies who have bid for projects have no idea of their status due to the shutdown. And, once again, even after the shutdown has ended, it will take time to get things moving again. Companies are not likely to start receiving money owed to them right away due to the build up over the course of the shutdown. (http://news.yahoo.com/government-shutdown-takes-toll-small-184958588.html).

The big takeaway from all of this is that the shutdown is bad for business. It is particularly bad for small business, which relies more so on government agencies, contracts, and aid. The longer this shutdown lasts, the deeper and more damaging the impact will be.