News Update - March 12, 2011Obama Administration Stance on Not Supporting Defense of Marriage Act May Have Immigration Consequences; Latest Count on Illegals in U.S.; U.S.I.C.E. Auditing Many Companies; Change of Address Notices for Aliens to be Sent to New Location.The Obama Administration decided on February 23, 2011, to no longer defend the Defense of Marriage Act (DOMA), the 1996 law barring federal recognition of same-sex marriages, because the Administration believes that it is unconstitutional. The issue in the case was whether gay couples in the eight states that already legally recognize same-sex marriages may be discriminated against by the federal government. The specific facts involved the treatment to a survivor vis-a-vis the amount of tax which would have to be paid to inherit. The survivor in a recognized marriage would pay nothing while a survivor in a non- recognized marital relationship would pay much tax. The survivor was seeking the return of estate taxes paid because the government did not recognize her marriage when her wife died two years ago. However, this new position by the Administration also raises the more fundamental question of whether same-sex couples should have the right to marry, and the possibility of challenging immigration laws to make it easier to petition for married partners in the future. The latest count shows that there are approximately 11.2 million illegals in the United States. According to the Pew Hispanic Center in a report on February 1, 2011, there was no evidence that illegal immigrants were leaving the U.S. in large numbers. U.S. ICE (Immigration and Customs Enforcement) is presently conducting I-9 audits on as many as 1000 companies. This along with increased use of E-Verify is putting employers on edge. (E-Verify is an internet based system operated by DHS in partnership with the Social Security Administration which allows participating employers to electronically verify the employment eligibility of newly hired employees and is administered by U.S.C.I.S. At present, about 11% of 7.7 million employers nationwide use the E-Verify program). The audits are U.S. ICE's largest operation since 2009. In I-9 audits, employers are given three days' notice that they will be audited, at which time they must produce the I-9 employment eligibility verification forms which they were required to complete for each worker within three days of hiring.
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2011 Alan Lee, Esq.
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