Welcome to this Virtual Brown-Bag

U.S. v. Windsor: Implications for International Students and Scholars and their Host

Institutions

We will begin soon

Hosted by NAFSA: Association of International Educators (www.nafsa.org)

NAFSA Regulatory Info

www.nafsa.org/reginfo

DOMA Resource Page

Presenters

What is DOMA?• The Defense of Marriage Act was signed by President Clinton in 1996.

• Section 3 of the Act defined “marriage” for purposes of any federal benefit as being between “one man and one woman”.

• Section 2, still in effect, allows states to refuse to recognize same sex marriages performed in other states.

• DOMA prohibited the granting of over 1,000 federal benefits to same sex spouses.

• President Clinton came to regret signing DOMA, and actively campaigned for its repeal.

• Despite DOMA, some federal agencies did what they could to accommodate same-sex relationships. For example, DOS accorded spousal benefits to same sex partners residing with DOS employees abroad, and granted B 2 visas to same-sex partners of nonimmigrants. CBP and USCIS also permitted same sex partners to accompany nonimmigrants in the US, as well as accompanying US citizens on temporary assignment in the US, in B 2 status.

Windsor: What Happened in the Supreme Court?

• An 84 year old woman, Edie Windsor, married to her partner in Canada in 2007 (together since 1963), and a resident of New York, sued when the IRS sent her a tax bill of over $300K and refused a refund. She would not have had to pay the tax were she considered “married” under federal law.

• The Court, in a 5-4 decision written by Justice Kennedy, decided that Section 3 violated the due process and equal protection rights of same-sex couples.

• Read it here: http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

Is There Any Question that Windsor Affects Immigration Benefits?

• On July 17, Former Attorney General Alberto Gonzales, relying on a 1982 Circuit Court case, opined in the New York Times that since the pre-DOMA Immigration and Nationality Act always interpreted “marriage” to be between a man and woman, that perhaps Windsor would not accord immigration benefits after all.

• This position has been thoroughly discredited by the BIA and the Executive Branch. See following slides and this article: – Bad Timing, Alberto: BIA Confirms Immigration Benefits for Same-Sex

Spouses after U.S. v. Windsor

What Then Happened at the BIA?• In Matter of Zeleniak, 26 I&N 158 (BIA 7/17/13), the Board of Immigration

Appeals reversed the denial of a family petition on behalf of a same sex spouse, allowing that person to finalize permanent residence. The Board recognized that the law of the jurisdiction where the marriage was celebrated determined its validity, not where the parties resided.

• In other words, if the parties are married in a state or country which recognizes same sex marriage, it does not matter with regard to federal immigration benefits, that they now reside in a state that forbids such relationships.

• The BIA is the highest administrative authority that interprets immigration law. Its decisions may only be overturned by the Attorney General or the federal courts. Its final decisions bind USCIS, ICE, and CBP.

What Is Happening at the Agencies?• USCIS has moved aggressively to approve permanent residence applications on behalf of

same sex spouses, and reopen old cases denied since 2011. We imagine that stepchildren in such relationships will be treated likewise.

• USCIS issued FAQ’s on July 2 and 26, including nonimmigrants as well as eligible for benefits. http://www.nafsa.org/Find_Resources/Supporting_International_Students_And_Scholars/ISS_Issues/Issues/U_S__v__Windsor,_DOMA,_and_Immigration_Benefits/

• DOS has announced that it, together with DOJ, is formulating policy on the issuance of immigrant and nonimmigrant visas for same sex spouses and stepchildren, as well as amending other policies. http://travel.state.gov/travel/travel_6019.html. It has also removed references to prohibition of federal recognition of same sex marriage from its website.

• EVP has advised privately not to issue DS 2019’s for same sex dependents until there is a policy announcement.

• SEVP has simply advised NAFSA that DHS and DOS are working on policies which should be announced soon.

• Issuing these forms prior to guidance could result in USCIS delays and/or 221(g) refusals at US consulates (recently reported L-2 221(g) refusal in New Zealand for same-sex spouse).

What Is Happening At The Agencies?

• Despite the “go slow” approach of the relevant agencies, there is no regulatory authority to deny a benefit, such as a dependent I-20, to a person now legally considered a “spouse” or “child” under federal law.

• Indeed, in FAQ’s published July 26, USCIS seemed to encourage individuals to push ahead in requests for benefits (which would include the previously mentioned I-20):

– Q4. Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?

A4. No. You may apply right away for benefits for which you believe you are eligible.

Where to Marry?

• Currently 13 states, the District of Columbia, and five Native American tribes permit same sex marriage. None have requirements that either party reside there, though of course the tribes have membership requirements.

• There are also 17 countries or foreign jurisdictions that permit same sex marriage. However, some have restrictive residence or citizenship requirements.

• See the list at http://immigrationequality.org/issues/couples-and-families/where-can-we-marry/

What About Other Relationships?

• Civil Partnerships?

• “Stable partners” (Brazil)?

• We do not know at this point whether USCIS and DOS will consider these relationships to be full marriage.

• Best advice: Refer persons to immigration attorney for advice on where/when to marry. There may be complicated legal or immigration issues.

What if It is Impossible to Marry?

• Other partner is in a jurisdiction which forbids same sex marriage (i.e., Russia, Saudi Arabia) and can’t get a visa to a place that permits it.

• If one of the partners is a USC, then a fiancé visa may work, but may present personal security issues for the foreign national.

• If the situation is explained carefully to the consulate issuing the visa to go to the same sex jurisdiction, they may be sympathetic.

• What about US NIV issuance in the marriage country? Typically DOS prefers applications in the “home” country. New DOS policy?

Effects on Your School: Factors to Consider

• Is the benefit being accorded federal, state or local?

– If federal, then likely will apply to same-sex married persons.

– If state or local, will depend on:

• State law/constitutional provisions regarding same-sex marriage/relationships

• State and/or local antidiscrimination provisions

• Possibly, some federal antidiscrimination provisions

• If not a federal immigration benefit, best to ask General Counsel for opinion.

Effects on Immigration Issues at Your School?

• You will likely be required to issue I 20’s and DS 2019’s for same sex spouses and stepchildren, if you choose to admit the principal foreign national.

• If you are a private institution and your code of conduct forbids this type of relationship, you may or may not be able to refuse to admit the principal, depending on your state’s or city’s antidiscrimination laws, and possibly, federal antidiscrimination laws.

• Otherwise, if you admit the principal, it is very likely that your F certification or J program authorization will require you to issue same-sex dependent documents in such cases.

• You may also be required to offer housing to such couples, if you normally provide housing for married students, again, depending on your state’s or city’s perspective on such relationships and/or nondiscrimination laws.

Effects on Immigration Issues at Your School?

• EB cases: You will need to advise employees in same sex relationships that they should marry in an appropriate jurisdiction before adjustment of status is filed; otherwise the spouse will generally not be able to immigrate for months or years. Probably best to refer them to an immigration attorney for this advice, since foreign marriage jurisdictions can have complications, and there may be complicated travel/visa issues.

• Persons who got PR through your school or another employer may now be able to obtain PR for “following to join” spouses and stepchildren, who are either here or abroad, where the legal relationship existed at the time the person obtained PR.

• Spousal abuse cases (VAWA, U): should now be more straightforward with USCIS.

What About Other Federal Programs or Programs Receiving Federal Funds?

• Social Security

– Issued a press release encouraging those who think they may be eligible for benefits to “apply right away” in order to “preserve the filing date” and indicating that the agency will “move swiftly to process claims once we have finalized instructions for our personnel.” http://www.ssa.gov/pressoffice/pr/doma-pr.html

• Tax

• All federally funded education related programs forbid discrimination based on sex under Title IX of the Civil Rights Act. http://www.justice.gov/crt/about/cor/coord/titleix.php. Could this now be interpreted to require recognizing same sex marriage, since to only recognize opposite sex could be interpreted as sex discrimination?

• Financial Aid

What About Other Issues?

• Cultural issues: Conservative international students on your campus who may be housed with same sex couples or who may encounter them on campus.

• Study abroad: Cultural, legal issues if same sex couple studies in jurisdiction which forbids or criminalizes such relationships, or simply where there is an atmosphere of intolerance (eg, Jamaica).

What About Other Issues?

• Security and safety concerns for same sex couples where one spouse is American in hostile territory overseas: Sen. Menendez has written a letter to Secretary Kerry asking DOS to ensure these couples’ safety. http://www.menendez.senate.gov/newsroom/press/sen-menendez-asks-sec-kerry-to-ensure-safety-of-lgbt-mixed-status-and-immigrant-families

• Regarding DOS’ issuance of IV’s and NIV’s in such countries to same sex dependents: will they use the same approach as for asylee dependents, issuing “disguised” visas?

What About Other Issues?

• Cultural, religious issues among your staff:

– Refusal to sign I 20’s, DS 2019’s

– Refusal to deal with same sex couples in other ways

– Different treatment of same sex couples; insensitivity

• Training and sensitivity to religious/cultural issues will be required.

• Possible that Religious Freedom Restoration Act of 1993 could come into play if staff member has religious objections to performing these functions—ask your General Counsel.

What If My State Forbids Same Sex Marriage?

• This may make no difference with respect to most federal benefits if the person was legally married in a jurisdiction recognizing same sex relationships, though all the fine print is not yet written, e.g., Social Security.

• You need not accord state benefits to such persons unless required to do so by federal law.

Georgia – Political Context• GA does not permit same sex marriage.

• 1996 statute, followed by a GA Constitutional Amendment 1 – 2004, makes it unconstitutional for the state to “recognize or perform same sex marriages or civil unions”.

– Struck down in 2006, but decision was overturned by the Supreme Court of GA.

• Of five democratic congressional reps, only two GA reps signed the Congressional brief. The other three did not sign – but did support the repeal of the military’s “Don’t Ask Don’t Tell” policy…

• State Attorney General (SAG) position: AG Sam Olens emphasized that the decision accords states the right to determine what is a legal marriage. The definition of marriage in GA is unchanged.

Georgia – Public Sentiment

• GSU Professor Tanya Washington, with two other colleagues, filed an amicus brief in March, in support of Windsor

• Groups such as “Georgia Equality” are working to advocate for changes at the state level.

• Possible constitutional challenge in GA?

• Probably not before some other states: Hawaii, Nevada and Michigan…

• Public sentiment: Greg Lewis at AJC writes:– Attitudes are changing rapidly….In 2004, 76 percent voted for a constitutional ban on gay

marriage, but…support for the practice is rising nearly 2 percentage points a year. Slightly more than 40 percent of Georgians currently favor same-sex marriage, with greater support among blacks and Latinos than whites. The state is now where the country was in 2004; if present trends continue, a majority of Georgians will favor same-sex marriage before 2020.

– http://blogs.ajc.com/atlanta-forward/2013/07/04/same-sex-marriage-in-georgia/

University of Georgia

• UGA is one of dozens of state schools within the University System of GA.

• Our practices and policies are largely determined by our Board of Regents, answerable to the Legislature.

• Current guidance from the system office is that the Windsor case does not affect any policies or practices at any USG school.

• The question regarding visa sponsorships including same sex married spouses and dependents has been forwarded to the SAG office.

• Waiting for guidance.

Current Policy / Practices at UGA

• We are awaiting final guidance from the SAG office regarding issuance of dependent I-20’s and DS 2019’s.

• If we receive a request for a dependent sponsorship for a same sex married partner or dependent, we will consult with our Legal Affairs office.

• It is not clear whether we have grounds for refusal, especially once DOS and CIS formulate clear policies.

What About the U of Washington?

• Washington is a same sex marriage state by legislation of February 2012, affirmed by popular referendum in November 2012, and in effect since December 6.

• We are waiting for guidance from state officials and federal agencies on immigration and other issues affecting higher education.

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