Tips for the LGBT Community on Immigration Matters post-2016 Elections



Tips for the LGBT Community on Immigration Matters post-2016 Elections

Prepared from information provided by the LGBT Committee of the MN/Dakotas chapter of the American Immigration Lawyers Association.

Marriage equality is the law of the land. The Supreme Court is unlikely to reconsider the Windsor and Ogbergefell decisions that grant the right to marry to same-sex couples. At least not right away, although this may change in the future.  The following tips provide suggestions that may help you prepare for future changes in the law.

Please note:  These tips are not intended as legal advice.  They provide general information, but do not substitute for legal advice from an experienced immigration lawyer who is familiar with the facts of your case. To be sure that you are eligible to file an immigration application, we strongly recommend that you schedule an appointment for a consultation with an experienced immigration lawyer before you file.

  1. Consider legal marriage as something that is distinct from wedding planning. This means, if you are planning to marry, you may want to consider getting legally married as soon as possible in a civil marriage ceremony. You may chose to hold religious ceremonies, or other celebrations later.  If marriage equality goes away, it will most likely begin with denying the right to those who are not yet married.
  1. If you are not married, or if marriage protections are taken away from same-sex couples, consider the following non-marriage protections:
  •  Power of attorney for finances
  •  Power of attorney for health care
  •  Designation of beneficiaries on insurance, 401(k) and other policies
  •  Update your will to ensure your spouse has a legal claim to your assets
  1. If you are a same-sex couple with children, consider co-parent adoptions to ensure joint parental rights.
  1. If you are a married bi-national same sex couple, consider what your immigration options are in the country of the non-US citizen or non-US permanent resident spouse.
  1. Most petitions and applications for immigration benefits are decided under the law in place at the time of filing.  You may want to consider filing any of the following as soon as you possibly can. Make sure that you are eligible before you apply:
  • I-130 petitions based on marriage to a US citizen or Green Card holder.
  • Applications to extend your status, especially if your status is based on your
  • Marriage (including, but not limited to, F-2, J-2, H-4, L-2, etc.)
  • Adjustment of status (Green Card) applications based on your marriage
  1. If you have a Green Card and you are married to a US citizen, consider filing for naturalization as soon as you are eligible. You must be a green card holder for at least three years if you are married to the US citizen who sponsored you for your Green Card. Make sure that you are eligible for naturalization before you apply.
  1. If you filed for immigration benefits under DACA, this program is likely to end. DACA benefits do not provide protection other than a temporary stay of removal and temporary permission to work in the US.
  1. Be aware of “notarios” and other non-lawyer immigration service providers. Many are well-intentioned, but others are not. If you apply for something that you are not eligible for, or you file an application that contains inaccurate, or false information, your application may be denied.  Even worse, you may not be able to file immigration applications in the future.

Please contact us at  or 315-333-2424, if you would like to schedule an appointment for an immigration consultation with an attorney in our office. You may also contact us at


Supreme Court Decision: Deferred Action for Parents



News Flash: The US Supreme Court announced a decision today  on the deferred action for parents (DAPA) program.  The court reached a deadlock on this issue.  The court will leave in place the lower court decision that blocks the deferred action program for undocumented (sometimes called illegal) parents of US citizen and permanent resident children. For more information on the court decision see  DAPA Court Decision.

The earlier, two-year Deferred Action program for undocumented children who entered the US before their 16th birthday and who have lived in the US since June 15, 2007, is still available for those who qualify.  For more information on this program see Two-Year Deferred Action.

Three Groups Most Likely to be Deported(New Immigration Policy)


Three Group Most likely to be Deported: A change in immigration policy announced by the Department of Homeland Security (DHS) will affect 11 million people who are in the US without documents (sometimes called illegal immigrants). DHS will focus on deporting the following three groups of undocumented immigrants.

1. Convicted Criminals

2. Terrorist Suspects

3. Those who have recently crossed the US border (Since January 2014)

For more information on this change in enforcement policy see Who will be deported? 


While not being deported does not lead to getting a green card, or any other immigration benefit, it may provide some peace of mind for those who do not fall within the above groups.

There is one one group who may file an immigration application. Those who qualify for Two-year DACA, may file for temporary relief from deportation and permission to work in the US. For information on who may apply for DACA now see Two-Year DACA

How can I tell if I am working with a real lawyer?

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 How can I tell if I am working with a real immigration lawyer? Do not end up like the victims of immigration scams in this sad story of someone who pretended to be an immigration lawyer and scammed immigrants out of thousands of dollars,  see immigration scam.  Howard Seidler promised a green card and a social security number, but took the money and never filed anything. This is all too common where people are desperate for immigration papers and vulnerable to immigration scams. When you pay someone to file an immigration application make sure you are working with a real lawyer.

How can you tell if the person you are working with is a real lawyer?

1. Lawyers are required to register with the bar association in each state where they practice. You can check the attorney registration on-line to see if your lawyer is registered.  In New York State you can search attorney registration to see if the name is listed.

2. For immigration lawyers you can also check the website for the American Immigration Lawyers Association to see if your lawyer is a member of AILA.  The American Immigration Lawyers Association is a valuable resource for immigration lawyers and for the public. Lawyers, who are members, receive  daily updates on new developments in immigration. Members of the public can access the public AILA website for information on immigration,  and for information on immigration lawyers who are members of AILA.

As the old saying goes, if something is too good to be true, it probably isn’t. When you file an immigration application you need to be sure that you are eligible to apply and that the information on the application is true.  If you are not eligible, or the information on the forms is not true, you could be deported, or even worse, prosecuted for filing a false form and then deported.

 How can I protect myself from immigration scams?

1. Ask for a copy of everything that you sign

2. Check to see that your immigration lawyer is registered with a state bar association.

3. Check to see if your immigration lawyer is a member of AILA.

4. Be careful if anyone filing applications for you guarantees that your application will be approved.  Lawyers are not allowed to make these kinds of promises.

5. If you are undocumented (sometimes called illegal) be even more careful.  In most cases immigrants who are  in the US without immigration papers, or  who have entered without papers (or with false papers) cannot stay in the US to apply for immigration status.

6. One exception to #5 above, is for people who entered the US before June 15, 2007 without papers and were under the age of 16 when they entered.  In that case, Two-Year Deferred Action for Childhood Arrivals (DACA) might be a possibility. For  more information on this see DACA Now.

7. Don’t listen to anyone who says they can file an application now for undocumented parents of US citizen or permanent resident children.  There is a new program for undocumented parents, but it is on hold while it is being challenged in court.  There is also an expanded form of DACA (Three-Year DACA) that may become available for those who have lived in the US without documents since June 1, 2010. This program is also being challenged in the courts and is not yet available.

Remember, it is you who will pay the price if you are working with a scam artist.  You may lose more than your money if the scammer files papers for you that include false information. If you cannot afford to pay for a consultation with a lawyer there are some programs that may be able to help you for free.  In the New York City area you can contact, LawHelpNY .  In the Syracuse, NY area you may be eligible for a free immigration consultation, contact the Volunteer Lawyers Project of Onondaga County to make an appointment. Be careful out there!




How to Avoid Immigration Scams

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It is very important to be careful of immigration scams.  We expect that in the next few months a new kind of immigration application may become available to those who are undocumented and meet the requirements for a new  expanded kind Deferred Action.  Click here for tips on how to prepare for this new program. There is nothing you can file now for this new program.  Be careful of following the advice of anyone who tells you that you can apply now. You may not only waste your money, you may end up committing fraud, and or getting deported.

For more information on how to recognize an immigration scam go to Immigration Scams.

Some people may be able to apply for Deferred Action under the Program under the old program.  For information on the  old program go to  Who Can Apply for DACA (Deferred Action) Now.




Who Can Apply for DACA (Deferred Action) Now (Feb. 2015)?

child immigrants

Requirements for DACA

Although the expanded DACA Program has been delayed, there is currently a program in place for those who meet the following requirements:

1. Under Age 31 on June 15, 2012

2. Arrived in US before 16th Birthday

3. Continuously Resided in US from June 15, 2007 to present

4. Entered  US Without Inspection (sometimes called illegal entry) before June 15, 2012

5. Currently in school, have graduated from high school, or have GED, or honorably discharged from military

6. Age 15, or older, at time of application


Complicating Factors that require careful evaluation before filing a DACA Application

1. No documents, or few documents, showing presence in US

2. Criminal Charges

3. Previous immigration application

4. Absences from US since June 15, 2007 ( or 5 years before filing)

Seek advice from an experienced immigration lawyer if any of the above complicating factors applies to you. 


Benefits of an Approved DACA Application

1. Protection from deportation for 3 years

2. Able to apply for permission to work in the US

3. Able to apply for a Social Security Number


Risks in Applying for DACA

1. If you apply, and you are not eligible, you could be deported.

2. Some kinds of denials, may make you permanently unable to file immigration applications in the future. For example, some kinds of criminal convictions may be a permanent bar to entering the US.

Deferred Action for Children (DACA) – February 18th



USCIS will begin accepting deferred action  immigration applications for children (DACA) who arrived in the US before their 16th birthday using the new, expanded requirements on February 18, 2015. This program provides temporary relief from deportation.  It allows those whose applications are granted to apply for permission to work legally in the US.


Requirements for Expanded Deferred Action for Childhood Arrivals

1.  Arrived in US before 16th birthday

2. Continuously lived in US from June 1, 2010 to present

3. Physically present in US on June 15, 2012

4. Entered US without inspection (sometimes called illegally) before June 15, 2012, or any lawful immigration status ended on or before June 15, 2012.

5. Applicant must be age 15 or older

6. Education Requirements: Currrently in School, or graduated from high school, or GED, or honorably discharged from military

7. No convictions for felony, significant misdemeanor, three or more misdemeanors, and not a threat to national security or public safety

For information on how to avoid scams see Avoid Scams.