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U.S. Supreme Court Rules DOMA Unconstitutional, Bi-national Same-Sex Couples Can Now Receive Immigration Benefits

The decision on June 26, 2013, issued by the United States Supreme Court in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act is unconstitutional, will benefit same-sex married couples in which one spouse is not either a U.S. Citizen or Lawful Permanent Resident. The Defensive of Marriage Act (DOMA) is a federal law that limits the recognition of marriage to only opposite-sex couples.  Now that Section 3 of DOMA has been ruled unconstitutional by the U.S. Supreme Court, the federal government cannot exclude same-sex couples from federal laws and programs, which include immigration laws.

As of June 26, 2013, following United States v. Windsor, U.S. federal immigration law allows a United States Citizen or Permanent Resident to legally sponsor his or her non-citizen spouse for Permanent Resident Status on the basis of marriage. Permanent Residence allows non-citizens to live and work in the United States indefinitely. Thus, the foreign national in a same-sex marriage can now obtain a “Green Card” as long as his or her marriage was legal where it took place. In the U.S., same-sex marriage is legal in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia.

The U.S. Department of Homeland Security (DHS) released a statement immediately following the Supreme Court’s decision. In this statement, Janet Napolitano, Secretary of DHS, applauds the Court for ruling DOMA unconstitutional, calling DOMA “discriminatory” towards same-sex couples; “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

As this development is brand new, we anticipate questions yet to be answered. However, under current law, we are able to assist any bi-national same-sex married couple in pursuing and obtaining Lawful Permanent Residence for the foreign national spouse. We will be happy to take such cases and look forward to representing same-sex married couples in the future. In fact, U.S. Citizenship and Immigration Services (USCIS) has already granted Permanent Residence in a bi-national same-sex marriage case.

Please call our office to schedule a meeting with one of our attorneys who will be able to explain in more detail what your options may be and how our law office can assist you in the process.

For more information on the Supreme Court’s ruling in United States v. Windsor, read the Court’s opinion released June 26th, 2013:

Read the full statement by the Secretary of the Department of Homeland Security Janet Napolitano, released June 26th, 2013:

Note: Foreign nationals seeking lawful status in the U.S. are subject to all immigration laws, and even with a lawfully recognized marriage, may be inadmissible or otherwise unable to obtain Permanent Residence in the U.S. on other grounds, such as certain criminal convictions or immigration violations. This is true of anyone seeking immigration benefits from the U.S. Government.

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Immigration reform to boost the economy and to create more jobs

I attach a link to an article I wrote for the Detroit Free Press published on Sunday February 3rd, 2013. It discusses the interaction between immigration reform, the economy and the creation of jobs. It is based on a short research paper I worked on last summer and presented within a group study of macroeconomic issues. It was based on research at reputable national universities showing that more immigration boosts the economy, increases jobs for local workers and actually adds to their income. While at first glance this argument might sound counterintuitive, it actually makes a lot of sense. Basically, scarcity of population never creates jobs: one does not look for work in uninhabited areas. On the contrary, the addition of new hard working population creates its own demand for products and services, and thus creates more jobs than it occupies. To read the article, please follow the link at

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N. Peter Antone article about Arizona Law in the Legal News Papers

The Detroit Legal News published on December 22nd, 2011 on its first page an article titled “Asked and Answered by N. Peter Antone” which dealt with the affect of the US Supreme Court entertaining the appeal of the State of Arizona against attempts by the Obama Administration to curtail application of its newly enacted immigration law. The article is copied and published here in its entirety.  

The U.S. Supreme Court announced on Monday, Dec. 12, that it will rule in its 2012 session on Arizona’s tough new immigration law. The law requires police to check the immigration status of anyone they detain who they suspect is in the U.S. illegally and requires immigrants to carry their papers at all times. The law is a hot button issue in what promises to be an especially contentious election year. Prominent immigration attorney N. Peter Antone of Antone, Casagrande & Adwers, P.C. shares his thoughts on the subject.


Thorpe: What, if any, impact might a Supreme Court ruling on the Arizona law have on current Michigan immigration law?

Antone: In Michigan, there was a pending bill similar in scope to Arizona but not as comprehensive. That bill might have died out. Most likely, the Legislature is waiting for any Arizona decision to come out before revisiting the proposed legislation, or before introducing a new bill.

Despite the activity in the Legislature, Gov. Snyder has explicitly said Michigan should not and will not have an Arizona type law and in that case, he might resist any restrictive tendency by the Michigan legislature, even if the Arizona law is approved.

Thorpe: There are also laws being challenged in South Carolina and Utah. If the Arizona law is upheld, do you foresee a patchwork quilt of immigration laws in the U.S.? How will that complicate the job of attorneys?

Antone: The patchwork quilt is already formed, albeit in its early stages. Many states have passed some kind of state immigration law in the past two years. So, regardless of the decisions on these recent cases, the trend is already set and in motion. The extent to which the state laws will go and perhaps the number of states that implement laws will very likely be impacted by the decisions on Alabama, South Carolina, Arizona, etc., but it is already clear that states are increasingly interested in having a hand in immigration enforcement.

While this will certainly impact the work of attorneys, it will significantly impact the lives of even lawful immigrants. Each state will handle its immigration-related laws and policies differently, but the result will almost inevitably be that determinations of what is “legal presence” and who is here “lawfully” will increasingly be made by civil servants completely unfamiliar with what is largely recognized as one of the most complex legal frameworks in the U.S. For example, in Michigan, the Secretary of State now has very broad discretion to determine who is eligible for a driver’s license. The guidance previously provided by law was removed by the superseding bill signed into law in September. What was already an infuriating process of obtaining a driver’s license, even for those here lawfully, will now very likely be made even more inconsistent with Secretary of State office clerks having less guidance and more discretion in determining who is here lawfully and eligible for a license. Surely this will be an unwelcome development for the clerks as well, who are now expected to resolve what are often complicated questions, even for immigration lawyers.

For immigration lawyers, employment-based visas may become more complicated in terms of what restrictions states place on employers and their ability to hire non-residents of the state or non-citizens. Michigan has at least 12 bills pending in the House that will require employers to sign written contracts limiting who they can hire. If each state has such restrictive laws, it will become increasingly complicated and difficult to practice federal law in several states, which is currently the status quo.

Additionally, for any immigrant who is arrested or who has any type of criminal record, the states are increasingly eager to require police to enforce immigration law by inquiring about immigration status and requiring them to turn any non-citizens over to ICE. This will make it increasingly difficult for many lawfully present immigrants to live their lives as police will again be left to determine what is lawful presence and who is here lawfully. Some people who are lawfully present cannot easily prove it with a single piece of paper. I anticipate lots of time and money spent on analyzing status and undoing the damage of wrongful arrests.

Thorpe: Are there any initiatives in the Michigan Legislature or being proposed by advocacy groups in the state that are similar to the Arizona law? If that law is upheld, do you anticipate an “opening of the floodgates” in Lansing as lawmakers try to craft similar laws?

Antone: The Michigan House and Senate have had numerous bills introduced even just in 2011 seeking to restrict the ability of employers to hire non-residents of Michigan, including foreigners who may not have residence in Michigan, and requires employers seek public contracts to execute statements that they will not knowingly hire any employees not authorized under federal law to be employed in the U.S. Another bill requires any public employer in Michigan to use E-verify.

The Michigan Legislature, left to its own, seems to be very eager to make Michigan quite restrictionist with respect to immigration, and very likely, it will model either a single comprehensive law, or multiple smaller laws, after the Arizona law so that it falls within the parameters of the Supreme Court decision. Already there are several bills pending that seek to ultimately eliminate the possibility of anyone unable to prove lawful presence from receiving benefits, employment, or driver’s license, and increasingly the Legislature is placing the power to determine this legal presence and eligibility in the hands of Michigan agencies and the Secretary of State.

The House also has a pending resolution that would notify Congress of it’s position that the 14th Amendment does not confer citizenship as a birthright.

A Michigan bill pending in the house actually would require police to arrest any non-citizen for what the police believe may be a deportable offense, and creates a private right of action to Michigan residents to sue the authorities if they believe these laws are not being carried out as fully as possible.

Thorpe: How does the demographic make-up of Michigan’s immigrants differ from those in Arizona? Does that affect our state’s approach to immigration law?

Antone: Michigan might be more diverse in the makeup of its immigrant populations. Hopefully, that will place pressure on the legislature not to enact sweeping immigration laws that would undermine civil liberties of Michigan residents, whether legal or undocumented.

Thorpe: Do Michigan immigration attorneys as a group seek any reforms in Michigan’s current laws?

Antone: While I cannot speak for other Michigan immigration attorneys, I do believe that the majority are in favor of reasonable and responsible measures to improve our immigration system. That might involve policies that will avoid needless separation and destruction of families, will create a workable guest work program, will encourage more professionals, entrepreneurs and investors to stay here and to create jobs and will retain our country’s value as a great nation of immigrant. Further, most of us view a workable guest work program as an effective way to reduce the incentive for job seekers to cross the border illegally, which will enhance our ability to secure the border from serious criminals and terrorist, and with less cost.

Thorpe: What other issues do you see on the horizon for Michigan immigration attorneys?

Antone: Frankly, the more complicated immigration law becomes, the more work might be available for immigration attorneys. But, society as a whole is losing big time for numerous reasons:

Our current immigration law is very unforgiving. For example, there are several million U.S. citizen kids who have a parent who is undocumented. If we deport all those parents, we would have spent a fortune of taxpayers’ money to create a generation of kids who have been raised without proper parental guidance, who are more likely to be on welfare, and who are more likely to have educational and psychological problems, costing our society dearly in the future.

The current wave of state laws purportedly against the undocumented will create an opportunity for those who recent immigrants to abuse the law against those who look different. Our country’s image will change into a non-hospitable one. This will open the door for violations of civil liberties, even for legal immigrant. This will also affect the impression which others have of us, causing negative impact on tourism, foreign investments, trade, and ultimately negatively affecting the US economically and otherwise.

The issue of the undocumented is ultimately an issue of market needing labor with certain skills, with willingness to do tough jobs, and responding to seasonal needs. We need a workable guest work program that will alleviate the incentive for the undocumented entering our borders illegally and which will allow us then to more easily protect the border from those who seriously want us harm: drug dealers, terrorists and the like.

Finally, the current hysteria against the perceived harm from the undocumented and the willingness of some politicians to demagogue this issue is creating an atmosphere where it is difficult for policy makers to discuss or resolve immigration issues intelligently.

Published: Thu, Dec 22, 2011

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