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So much for the White House determination that the Defense of Marriage Act is unconstitutional. The San Francisco Chronicle reports on a case with particularly compelling facts. The couple has been together for 19 years (legally married for the last six years) and the foreign national is the primary caregiver for his AIDS-afflicted partner. The White House's typical "our hands are tied" is simply infuriating especially since there are so many options available to DHS to avoid exactly what is being pursued (including last month's ICE memo). Really shameful!
The discretionary and arbitrary nature of a finding of Good Moral Character in naturalization proceedings has been shown once again. Vernon Lawson, a decorated Vietnam veteran and Jamaican immigrant who spent 14 years in prison following the stabbing and killing of his wife, was granted US Citizenship in mid July following Federal Judge Denny Chin's decision that "No man is beyond redemption."
Lawson spent 13 months on tour in Vietnam with the U.S. Marines. During that time he served as an antitank assault man. Upon his return to the United States, Lawson was honorably discharged and received numerous honors and awards for his time spent fighting the Vietcong. Unfortunately, like many veterans, he became a victim of Post Traumatic Stress Disorder. Although he married in 1981, he and his wife eventually separated. After a failed attempt at reconciliation, Lawson stabbed his wife multiple times in the stomach. The night before, he engaged in heavy drinking and smoking marijuana laced with PCP.
Judge Chin attributed Lawson's behavior upon returning to the United States to his PTSD and the little help he received in trying to treat it. Lawson's first degree manslaughter conviction did not stop him from turning his life around. While in prison, he went on to receive treatment for his PTSD, in addition to receiving his college degree. Upon being paroled from prison, Lawson worked as a substance abuse counselor in the Bronx and was an active volunteer in his community.
His turn around in prison did not stop ICE officials from seeking removal proceedings in 2004. Judge Chin was highly critical of ICE in his decision and noted that the government's efforts were "mean-spirited."
This isn't the first time that courts have struggled to determine the Good Moral Character requirement for veterans seeking naturalization. The Good Moral Character requirement for those seeking naturalization is reduced to one year for certain veterans. Although immigration authorities are to make the decision of Good Moral Character primarily based on the veterans behavior during that one year period, criminal conduct prior to the one year period can be considered. For Vernon Lawson, his manslaughter conviction was considered but because of his reformation of behavior, he was able to demonstrate Good Moral Character.
The Good Moral Character requirements for naturalization for veterans remains overly complex. Recently in Moore v. James, the United States Eastern District Court of Virginia upheld USCIS's denial of naturalization for a Gulf War Veteran who was twice convicted of Possession with Marijuana with Intent to Distribute. Using a separate provision of code that veterans regularly use to seek naturalization, the Court noted that the provision in question "does not state that wartime veterans are excused from demonstrating good moral character."
Given the confusion that already exists on whether or not an individual seeking naturalization possesses Good Moral Character, clearer standards must be developed for veterans. Because a veteran convicted of manslaughter in New York was found to possess Good Moral Character while another convicted of possession with intent to distribute marijuana in Virginia did not shows how arbitrary an adverse finding of Good Moral Character can be. After these lawful permanent residents have served bravely for the Armed Forces, the least that our government can do is clearly elaborate what they must do to gain the priceless gift of American citizenship.
For more information on Good Moral Character, please see my article Good Moral Character - A Practitioner's Outline available from Immigration Briefings on August 15, 2011.
The San Francisco Chronicle has reported that the Obama administration is enforcing the Defense of Marriage Act by denying immigration benefits to a same sex couple married seven years ago in Massachusetts.
Bradford Wells is the U.S. citizen spouse, and his husband, Anthony John Makk, is a citizen of Australia. Mr. Wells filed a Form I-130 Immigration Petition for Alien Relative, which was denied by the administration on July 26. Mr. Wells has AIDS, and relies on his husband as his primary caregiver.
The Chronicle has further reported that Mr. Makk has been ordered removed from the United States, and is required to depart by August 25. I am not sure that this information is accurate, however, because it is unclear whether immigration court proceedings had already been instituted prior to the denial of the I-130. If I am able to get more information to clarify this point I will post an update.
So what does this tell us? It has become abundantly clear that this President and his administration are in fact adhering to the mandate of the Defense of Marriage Act, despite the fact that they have said otherwise.
More "Change" you can believe in.
Click here to read the full report.
Julia Preston reports in the NY Times on the reunion of a family in Chicago that is the culmination of 22 years of struggling with the immigration system. Janina Wasilewski came to America when Poland was still a communist country. She sought political asylum and the case dragged on for several years. She was finally denied as a result of the change in government in her country. She had married Tony Wasilewski in the mean time and sought a different strategy for a green card. But the changes in the law in 1996 tripped her up and she became subject to a ten year reentry bar. Her deportation fight ended in 2007 and she was forced to leave with the couple's six year old American-born son Brian. Despite husband Tony becoming a US citizen and despite the separation of son Brian from his father and his country, two waiver requests were denied. Tony suffered a heart attack, ulcer attacks, bouts of depression and alcoholism as a result of the separation and only after documenting how difficult his life had become (and getting help from an excellent lawyer - Royal Berg - as well as the help of Congressman Luis Gutierrez's office) did a waiver finally get approved.
The Times describes why Mr. Wasilewski chose to stay and fight:
But it was Mr. Wasilewski, with his unyielding determination to provide his wife and child with a life in the United States, who ultimately won her return. In 2007, even after the country had expelled his wife, in one of the bleakest periods of his solitary wait, he decided to become an American citizen.
"It was very hard to choose between my family and the United States," Mr. Wasilewski said by telephone from his home in Schiller Park, Ill. After traveling back to Poland to visit his wife and son, he said, "I choose America."
He also wanted to erase the stain of deportation on his family. "I did it for three reasons for my wife," he said, using a grand phrase that has been his mantra: "Honor, dignity and justice."
Congratulations to the Wasilewski family and we hope that life will be much happier going forward. It is just a terrible shame that you were put through this ordeal.
The temporary suspension of prevailing wages by DOL for PERM cases should not present a serious problem for most Employers, unless the proposed PERM filing is time sensitive to preserve the alien's right to extend H-1B visa privileges.
The regulation requires that the prevailing wage be obtained BEFORE the PERM recruitment begins or prior to filing the results of PERM recruitment.
Although it is not now possible to obtain a prevailing wage determination until after October 1, 2011, Employers may go forward with PERM appilcations in the following manner:
Calculate the prevailing wage using any on-line wage source like the Foreign Labor Certification Wage Wizard. Use the May 9, 2005, version of the FAQ's on prevailing wage and carefully calculate the prevailing wage.
Prepare a 30-day job order based on the prevailing wage that you calculated and file with the SWA.
Prepare a 10-day Notice of Filing and Post on the Employer's bulletin board with the same wage.
Advertise the position two Sundays without including the wage.
If the job is professional, advertise three additional forms of recruitment, but without including the wage amount.
On October 1, if the wage you calculated is incorrect, use the new wage to revise and refile the 30-day job order and the 10-day Notice of Filing. Otherwise, you are good to go!
Remember that the Employer must offer the prevailing wage or the actual wage, whichever is higher.
In many cases the actual wage will be higher than the prevailing wage, but the Employer can calculate the prevailing wage taking into consider the conditions described in the May 9, 2005, FAQ on Prevailng wage Guidance. When in doubt, the Employer may use the next higher wage level to be on the safe side.