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“A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” – Chief Judge Dennis Jacobs, United States Second Circuit Court of Appeals, Windsor v. U.S.
Many are heralding the Supreme Court decision striking down DOMA, Windsor v. U.S., as a watershed moment for same-sex couples seeking immigration benefits. Because the Windsor decision is so fresh, and because the decision may have striking implications for the gay immigrant community, MIA provides this tutorial of the Windsor decision to illuminate the background, meaning, and effect on same-sex immigration.
You may be asking the following questions:
What is DOMA?
What is same sex marriage law?
What is the law on gay marriage?
What are gay marriage rights?
What are arguments for gay marriage?
How does DOMA affect gay immigration?
This article is designed to provide a tutorial of the DOMA decision for same-sex couples hoping for federal immigration benefits.
What is DOMA?
In 1996, as some states began to consider same-sex marriage, Congress enacted the Defense of Marriage Act (“DOMA”).
The entire DOMA is less than 350 words, and reads in pertinent part:
An Act to define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) In General. The United States Code is amended by adding the following:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
SEC. 3. DEFINITION OF MARRIAGE.
(a) In General. The United States Code is amended by adding at the following: `
Definition of “marriage” and “spouse”: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Approved September 21, 1996.
As you can see, DOMA contains to operative sections. Section 2 allows states to refuse to recognize same-sex marriages that occurred in other states. For example, where Canada, New York, Massachusetts, or Vermont may recognize same-sex marriage, North Dakota may not. If a same-sex couple gets married in Vermont, North Dakota does not have to recognize that marriage in North Dakota, under Section 2 of DOMA. Section 2 remains intact today.
Section 3 amends the Dictionary Act to provide a federal definition of “marriage” and “spouse.” This section 3 does not prohibit the states from making laws that recognize same-sex marriages or providing state benefits to same-sex couples. However, Section 3 does prohibit same-sex couples to collect federal benefits provided to couples. This is the part of DOMA that is no longer in effect.
Why does DOMA matter?
DOMA matters both in principle and in practicality. In principle, DOMA plays a role in the debate as to whether we, as a society, should recognize the legitimacy and propriety of homosexuality in general, and whether we, as a society, should treat gay individuals and couples as equals.
In practicality, DOMA either provides or removes federal government benefits to same-sex couples. Keep in mind the difference between state government benefits and federal government benefits.
For example, Florida provides these state benefits: Florida Food Assistance Program (food stamps), Florida KidCare (low-cost health insurance for kids), Florida Low-income Home Energy Assistance (home heating and cooling), Florida Medicaid, Florida unemployment pay, Florida home weatherization, etc. Florida, as a state, also provides a homestead protection to spouses, restraining a homeowner from selling or devising a house without the approval of his or her spouse, and providing property tax breaks. Under DOMA, Florida could make law to extend these benefits to spouses in same-sex couples, particularly the homestead exceptions.
Federal benefits are different, and include social security (surviving spouses receive federal social security and support), tax breaks (there are nearly 200 federal tax provisions that account for marital status, including for estate and retirement money), family and medical leave (guarantees leave from work to care for spouses), government employee benefits for spouses, COBRA health care coverage for former employees, and immigration (almost 75% of all green cards or immigrant visas issued are granted to family members of permanent residents). Under DOMA, the federal government could not extend any of these benefits to spouses in same-sex couples.
Before DOMA: Baker v. Nelson
The major case to come before the Supreme Court on the issue of gay marriage was Baker v. Nelson, back in 1972. In Baker, somebody challenged the legality of a Minnesota state law that denied a marriage license to a same-sex couple. The denied couple brought a lawsuit (an action) against the state of Minnesota, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” The Supreme Court ruled that the use of the traditional (man and woman) definition of marriage by a state, in a state law, for that state’s own regulation of marriage status did not violate the United States Constitution. The distinctions between the Minnesota law in Baker and the federal law in DOMA are that (1) the government making the law is different (Minnesota state congress vs. U.S. federal congress); (2) the law works in different ways (Minnesota law precluded Minnesota government from issuing a same-sex marriage license, DOMA redefines the meaning of “spouse” and “marriage” for over 1,000 different federal laws on various issues, including all federal benefits); (3) the law effects a different number of people (Minnesota law effected only people living in Minnesota vs. DOMA effected the entire country); and (4) the laws were enacted at different times (Minnesota enacted before 1970 vs. DOMA enacted in 1996).
Before DOMA: Baehr v. Lewin (Baehr v. Miike)
Baehr was a lawsuit filed in 1990 in which three same-sex couples argued that Hawaii’s law prohibiting same-sex marriage violated the Hawaii state constitution. The couples applying to Hawaii’s Department of Health for a marriage license met all of Hawaii’s requirements to marry except that they were same-sex couples. Hawaii’s Attorney General advised the Hawaii Department of Health that only different-sex couples had a fundamental right to marry, and so the Hawaii Department of Health denied a marriage license to these same-sex couples. When the same-sex couples’ lawsuit reached the Hawaii Supreme Court, that court decided that denying a marriage license to same-sex couples was discrimination that required a strictly-scrutinized justification, meaning the Hawaii government had to prove that the discrimination furthered “compelling state interests and was narrowly drawn to avoid unnecessary abridgements of constitutional rights.”
The Baehr case had an enormous impact. Primarily, it scared many in the U.S. federal congress. While drafting DOMA, the U.S. federal congress said that DOMA was “a response to a very particular development in the State of Hawaii. The state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”
Why did the U.S. Congress enact DOMA in 1996?
One obvious justification is fear, as can be seen in the U.S. federal congress comments on the Baehr case, above. The U.S. Congress also provided several justifications for enacting DOMA to permanently define “marriage” and “spouse” to exclude same-sex couples on a federal, countrywide level. Those justifications were: (1) defending and nurturing the traditional institution of marriage; (2) promoting heterosexuality; (3) encouraging responsible procreation and childrearing; (4) preserving scarce government resources; and (5) defending traditional notions of morality.
Keep in mind that a New York federal court fully analyzed “every conceivable basis which might support [DOMA],” and found that these justifications were absolutely irrational. See Windsor v. U.S., 833 F.Supp. 2d 394, 403–06 (S.D. N.Y., June 6, 2012).
Who challenged the legality and constitutionality of DOMA?
Edie Windsor, an 84-year-old woman residing in the state of New York, challenged the constitutionality of DOMA. Her personal conflict with the provisions of the DOMA law came out of her relationship with another woman, Thea Spyer, who she met in 1963 in New York City. Windsor and Spyer began a committed relationship. They registered as domestic partners in New York in 1993, and married in Canada in 2007. Because of DOMA’s definition of “marriage” and “spouse,” Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law.
Why did Edie Windsor challenge DOMA?
When Windsor’s partner, Thea Spyer, died in 2009, Spyer left all of her possessions and money (her estate) to Windsor.
Often, recipients of an estate must pay federal taxes on the money that they inherit. However, if a couple is married and one spouse dies, the surviving spouse doesn’t have to pay taxes on the estate until he or she also dies. This is called the marital tax deduction under federal law. Of course, because Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law, Windsor could not claim this marital deduction under federal law.
Because Windsor was not eligible for a marital tax deduction under DOMA, she had to pay $363,053 in taxes to the U.S. government.
How did Edie Windsor challenge DOMA? – the 5th Amendment
Edie Windsor sued the United States of America for a refund of the taxes she paid. In order to get a refund, she argued that she was improperly denied recognition as “spouse” of Thea Spyer. In order to prove that she was improperly denied recognition, Windsor argued that DOMA was an invalid law. To prove that DOMA was invalid, Windsor said that it contradicted the 5th Amendment of the U.S. Constitution, which states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Courts have interpreted the statement that “No person shall . . . be deprived of . . . property, without due process of law” to mean that all people should get equal protection under the laws. Thus, Windsor argued, the 5th Amendment requires that she and Spyer be given equal protection as all other married couples in the U.S. If DOMA did not recognize their marriage simply because they were both women, then DOMA did not give them the equal protection afforded to same-sex couples, as required by the 5th Amendment.
Said in the reverse order, Windsor argued:
Married couples normally get tax deductions > DOMA prohibits some married couples from getting tax deductions (i.e. discrimination) > prohibiting only some couples from tax deductions is unequal discrimination > the 5th Amendment requires equality > thus, DOMA is unenforceable under the 5th Amendment > DOMA cannot prohibit federal law from recognizing my marriage > I should have gotten a marital deduction > the U.S. government must pay back my $363,053 in taxes.
What did Windsor have to prove to win?
Windsor had to prove that the discrimination in DOMA was not substantially related to an important government objective. In other words, she had to show that the U.S. government did not have some important goal that it was trying to further that required discrimination against same-sex couples.
Why did the U.S. government say that discrimination of same-sex couples was necessary?
As discussed above, the U.S. governments argued that it was necessary to discriminate against same-sex couples for the following five reasons:
(1) to defend and nurture the traditional institution of marriage; (2) to promote heterosexuality; (3) to encourage responsible procreation and childrearing; (4) to preserve scarce government resources; and (5) to defend traditional notions of morality.
What did the U.S. Supreme Court say about Windsor’s arguments?
The Court pointed out that:
(1) a government cannot punish the private, consensual sexual intimacy between two adult persons, as that is simply not the role of the U.S. government;
(2) the federal government rarely involved itself in legal issues regarding family, as family law is traditionally determined by the local governments;
(3) the discriminatory provisions of DOMA placed a stigma upon all people who had entered into same-sex marriages made lawful by the local governments;
(4) DOMA’s discrimination appeared to be a bare desire to harm a politically unpopular group.
In conclusion, the U.S. Supreme Court stated: “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Thus, DOMA is unconstitutional and unenforceable.
In essence, Windsor won, and the U.S. government had to repay Windsor the $363,053 in taxes.
What does this mean for immigration?
Because DOMA is unenforceable, each state gets to determine whether it recognizes same-sex marriages. If a state recognizes the same-sex marriage, then the federal government must recognize that marriage as a valid marriage, and those spouses as entitled to federal benefits for married couples—including immigration benefits.
This means that if an American woman marries a woman from Mexico, the Mexican woman is eligible for a spouse’s derivative work visa or sponsorship for a marriage-based green card. A U.S. citizen can now marry his or her same-sex partner and apply for naturalization proceedings. A U.S. citizen may even marry his or her same-sex partner and petition for naturalization, even if they don’t live in a state that recognizes gay marriage.
The takeaway is that homosexuality as a particular social group providing for international and national protection is taking hold. The idea has taken root, and the seas are changing. It will now be more interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward.
Until next time. Stay tuned.
Recently, MIA was contacted regarding adjusting status from a NATO nonimmigrant visa to permanent residency. Here are a few first steps that you can, and should, do on your own, before moving forward.
Check Your Visa Expiration
Step 1 for any NATO visaholder is to confirm that your visa will not expire before your adjustment can be approved. Look at the duration on your Arrival-Departure Record, Form I-94. Check the date in the lower right-hand corner of your Form I-94, Arrival-Departure Record, to determine the date your authorized stay expires. If your visa reads “D/S” (meaning, duration of stay is the same as tour of duty), note the length of your (or the officer’s) tour in the U.S., and its expected termination date. Failure to depart the U.S. will cause you to be out-of-status. When individuals retire, leave military (or civilian) service, or leave the employ of a Headquarters or Agency, they are no longer considered to be in the same (visa) status. If you possess a NATO class visa, you are required to leave the U.S. or apply for a change/adjustment of visa status within 30 days of your or your sponsor’s last day of duty. Staying beyond the period of time authorized by the Customs and Border Patrol and being in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S.
Extend Your Stay
If your visa is expiring shortly, you may wish to extend your stay in the United States filing a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539 Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. We recommend that you apply to extend your stay at least 45 days before your authorized stay expires.
Qualifications to Extend or Adjust
As you may know, you may apply to extend your stay if: (a) you were lawfully admitted into the United States with a nonimmigrant visa, (b) your nonimmigrant visa status remains valid, (c) you have not committed any crimes that make you ineligible for a visa, (d) you have not violated the conditions of your admission, (e) your passport is valid and will remain valid for the duration of your stay.
The common term for a change to permanent status is “adjustment of status” (“change of status” is from one nonimmigrant category to another). Because the above qualifications apply to an adjustment of status to permanent resident, please let me know if you do not meet any of these qualifications.
Check the Form I-566 Instructions
Going forward, look at the instructions from a Form I-566, which would be part of an adjustment of status application. Look at page 3, section 4, relating to adjustment of status. Also see page 5, section 3. You will also need to fill out a Form I-485, Form I-94, Form I-508, and evidentiary documents.
Look at the Other Adjustment Forms
The Form I-485 is the adjustment of status application. I attach the I-485 instructions. As you can see, there are limited grounds upon which a person may apply for permanent residency. Please look through the “Who May Apply” section on page 1 of the instructions. Do you meet any of these bases? The basic bases are through family, a job, or as a refugee/asylee.
Consider the Seriousness of Adjustment
The I-508 is a waiver of rights. The form primarily advises you that you must waive certain diplomatic rights, privileges and immunities and pay U.S. income taxes on the salaries paid to you by your foreign governments. If you have looked over this information, are serous about adjusting your status, and believe that you have sufficient grounds to do so, then you may apply for an adjustment of status.
We always recommend thinking about an adjustment seriously, and discussing it with family and friends. If you are still serious about adjusting, find an immigration attorney to help you complete your applications correctly.
Best of luck!
Miami International Attorneys
What is the RFE and how should I react to the RFE?
During you visa application, a USCIS adjudication officer will review or visa application. If the adjudication officer feels that something is insufficient in the visa application, the officer may issue an RFE letter. This usually spells delays, but such delays can be overcome.
Common circumstances for issuance of an RFE letter are: unclear descriptions in your application, missing documents in your application, and out-of-date documents or information in your application. The officer may also wish for you to provide an affidavit swearing to the bona fide nature of a relationship at the foundation of your application, or simply evidence of eligibility, vaccination, or birth country.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
During the presidential debate last night, former governor and Republican candidate Mitt Romney battled with President Barack Obama on Obama’s current immigration policy and any plans Mr. Romney may have for the future.
President Obama was particularly harsh on Romney regarding Romney’s professed position on
immigration. Romney had originally taken a very hardline against immigration, criticizing President Obama’s reprieves for immigrant families. During the debate last night, Romney attempted to soften his line. Yet, Romney still promised reform of current immigration laws, if Romney is elected. In fact, Romney promised swift action against immigration: “I’ll get it done. First year,” Romney said.
Romney also supported a theory of self-deportation, which involves immigration laws so harsh that aliens will voluntarily leave rather than face the punishment. Romney stated that “self-deportation says let people make their own choice. What I was saying is, we’re not going to round up 12 million people, undocumented illegals, and take them out of the nation. Instead, let people make their own choice.” Perhaps it was an unfortunate use of the word “round up,” but Romney stood his ground.
President Obama, taking the opposite side of immigration reform, stated that he supports citizenship for undocumented immigrants. Romney admitted that he does not support a pathway to citizenship for undocumented immigrants.
President Obama, a supporter of the DREAM Act, which promotes a pathway to citizenship for children brought into the U.S. at a young age, pointed out that Romney would veto the DREAM Act.
Romney also supported an Arizona law that required employers to use electronic federal verification to verify all of their workers. Kris Kobach, Romney’s key immigration adviser, is actually one of the authors of Arizona’s recent tough immigration laws.
How each candidate will pan out with immigrant and former alien voters will be seen soon enough.
Miami International Attorneys, P.L.
P.O. Box 191057
Miami Beach, FL 33119
A Brief View of Scalia’s Dissent on SB 1070 in Arizona v. U.S.
Today, listening to the recent National Public Radio discussion of Justice Scalia’s scathing dissent in Arizona v. U.S., one had to become curious at what stance Scalia took in the case. SCOTUSBlog writer Tom Goldstein described the dissent as apoplectic—overcome with anger. Justice Scalia’s language reminds us that the U.S. continues to broil in the Arizona heat of the immigration issue.
Run a Google search of the Supreme Court’s decision on Arizona’s immigration law, and you get an idea of the division that stretches up to the headlines: “Supreme Court mostly rejects Arizona immigration law”, “Supreme Court strikes down key parts of Arizona immigration law”, “Supreme Court upholds key part of Arizona immigration law”, “Supreme Court Splits on Arizona Immigration Law.” Taking into full consideration that media sells controversy, not agreement, and that the media exponentially drives the public into a division that exponentially drives the media, the list of contradictory headlines should still remind readers that we cannot seem to agree on this issue.
The immigration controversy goes to the core of our nation—a nation that is run by hardly a single native American. As an American of allegedly German-Austrian-Irish-Italian descent, it is hard for me to not sympathize with the plight of anybody on the outside looking in, or on the inside looking over his or her shoulder. But we can only gain by reviewing Scalia’s dissent to understand his perspective, as it is likely shared by many in the U.S.
Arizona v. United States (2011):
Quoting the Court, an Arizona statute known as S.B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The law makes it a misdemeanor to fail to comply with alien-registration requirements and to seek or engage in work without authorization. The law also authorizes police officers to arrest a person without a warrant when the officer has probable cause to believe that that person has committed any public offense that makes the person removable from the U.S. Even where making a stop, officers must make efforts to verify a person’s immigration status. Although the Court struck down most of these provisions, it held that the mandatory or permissive nature of the status checks is essentially okay.
Justice Scalia begins his opinion by stating that the U.S. is an indivisible “Union of sovereign States,” and that the ruling striking down Arizona’s immigration law deprives Arizona of its sovereign right to exclude from its territory those that “have no right to be there.”
Scalia points out that fact which we often forget after nearly 250 years as a united country: the USA was once just a series of independent colonies or nations. These colonies were settled by people of extremely diverse backgrounds, religions, nationalities, and races. It may be easier to consider the U.S. similar to a union of nations, like the European Union. Just as Germany would not let England determine its rules on border crossing, so too, according to Scalia, Arizona should not let Washington D.C. determine its immigration policy. In fact, Scalia refers to these international scheme: “[i]t is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country.” Of course, Scalia also quotes James Madison in saying that “the Constitution’s provisions were designed to enable the States to prevent ‘the intrusion of obnoxious aliens through other States.’”
Nevertheless, Scalia drives home his “most important point … that Arizona is entitled to have its own immigration policy.” Scalia does not find it compelling that his line of thought raises concerns about unnecessary harassment of some aliens, or that officials might determine that some should not be removed; no, “[i]t holds no fear for [Scalia].” What Scalia does fear is that “’federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.”
With statements such as these, it’s no wonder that Tom Goldstein regarded Scalia’s opinion as overcome with anger. We wonder whether Justice Kennedy’s critics considered the majority as complaisant.
Miami International Attorneys, P.L.
P.O. Box 191057
Miami Beach, FL 33119
Have you wondered where the visas get their names?
It’s a rather trifling matter, but the alphabetization of the nonimmigrant visa classes can create anonymity and an impersonal tone to the entire visa application process right from the beginning. Knowing where the visa names come from, and the foundation of their meaning, can make them seem less unfamiliar and less intimidating. Less intimidation means more comfort and confidence, which in turns makes your immigration experience more enjoyable and successful (we hope).
The root of the visa names is based on their placement in the INA Code (that’s INA for Immigration and Nationality Act, the major piece of U.S. law governing immigration in the U.S. – for more on the INA, see this article).
Welcome to Immigration 101
As with many pieces of legal code, the INA begins with a section 101, where all the major words used in the code are defined. Not surprisingly, this section is called “Definitions“. Going from A to Z, Section 101(1) starts with “administrator”, and by 101(38), you’re at “United States”. Unfortunately, thereafter the alphabet is lost to later add-ons, such as the ever-extensive “aggravated felony” and the ironically forgotten “stowaway”.
Actuating Anonymity by Alliteration and Alphabetization of Areas
At Section 101(15), one comes to the meaning of “immigrant”, which is defined by what it is not, rather than that which it is. Pursuant to Section 101(15), the term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens: Ambassador, temporary Business or pleasure, Continuous transit, Deckhands and crewman, trEaty traders and investors, Foreign students, Government diplomat, Highly skilled workers, International exchange program people, Karat-laden fiancées, Long-term employees of foreign companies, Mixed studies vocational and nonacademic students, Non-separated families, extraOrdinarily able people, Photogs and athletes, Qultural exchange visitors, Religious visitors, Snitches, Trafficking victims, abUse victims, and permanent Visa families. Now obviously, some of the above alphabetization requires a stretch of the imagination. But the notion is there. A through V is the list of different ways you can be a temporary visitor of the U.S. under Section 101(15)’s definition of (non)immigration.
Business or pleasure,
Deckhands and crewman,
trEaty traders and investors,
Highly skilled workers,
International exchange program people,
Long-term employees of foreign companies,
Mixed studies vocational and nonacademic students,
extraOrdinarily able people,
Photogs and athletes,
Qultural exchange visitors,
abUse victims, and
permanent Visa families.
Most of these apply to few people, and a few of these apply to almost everybody. We hope that our breakdown helps break down the wall of anonymity behind the nonimmigrant visa titles. Considering the alliteration employed, we have to imagine that even the drafters of the legislation hoped to bring a bit of personality to the code.
Potential TPS Petitioners Take Precaution! Before you let your status lapse, consider the options, the financial stresses, and the immigration risks.
We have recently been fielding questions regarding TPS filings and the effect of a TPS application on an alien’s current immigration status. Predominantly, these questions have involved individuals with nonimmigrant visas determining whether to renew their nonimmigrant status or risk lapse during an application for TPS.
Those seeking TPS should first note that a decision either granting or denying your TPS status may take 3 months or more. Thus, if your status is set to expire within the next 6 months, it may be worthwhile to renew rather than risk it.
Please also note that the USCIS states that where an alien has periods of time without lawful immigration status before or after being granted TPS, those periods of out-of-status or unlawful presence may adversely affect the alien’s ability to adjust to permanent status or attain other immigration benefits, depending on the circumstances of each specific case. Although the alien may petition for a waiver of inadmissibility (where based on unlawful presence), this is no safe bet. Moreover, there does not appear to be an express provision tolling the expiration of your current nonimmigrant status during your TPS application. What on-point equitable tolling there does appear to be, it seems to be dependent on a successful TPS application, a determination of prima facie eligibility, or government error.
If you still feel determined to risk living out-of-status, you may wish to research your options under INA Section 245i and 245k, cancellation of removal, or asylum. You may have other options if you are an immediate relative of a U.S. Citizen. If you get into a bind (e.g. removal proceedings), you may also wish to research rules on equitable tolling of removal. But these efforts may be difficult routes to pursue.
Although having to renew your nonimmigrant status may be costly financially, consider the benefits: you may still file for other immigration benefits during TPS, including non-immigrant petitions, adjustment of status, asylum, or otherwise. TPS is considered lawful nonimmigrant status during its pendency, and thus does not affect other applications.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
Not a bad move by the DHS. As the international community cracks down on the currently seated Syrian government, the ripple effects of nonmilitary sanctions have hit the pocketbooks of the Syrian people. Many of those affected include the families of F-1 nonimmigrant students now living and studying in the U.S. With funds cut short from home, many of these Syrian students are having difficulty paying their rent and eating, much less paying for textbooks. The DHS has taken some action to relieve the financial crunch.
Recently, the Dept. of Homeland Security Secretary announced that the DHS has suspended some of the regulatory requirements for Syrian F-1 nonimmigrant students. In particular, the announcement appears to be the result of severe economic hardship experienced by Syrians as a result of the civil unrest in their country.
The slackening of requirements is aimed at helping Syrian F-1 nonimmigrant students to pursue employment authorization, work increased hours while in school in the U.S., and reduce course load while maintaining F-1 status.
For example, Syrian F-1 nonimmigrant students may be qualified as taking a full course of study despite only satisfying a minimum course load requirement, provided that such students are working instead.
To review the legal foundation of the DHS decision, you should check out 8 CFR 214.2(f)(6)(i)(F) or visit the ICE website.
If you are a Syrian F-1 student and want to apply for the above program, please make sure that you are presently enrolled in a SEVP certified school; that your F-1 status is current; and put together some paperwork that may indicate the economic hardship you are facing due to the civil unrest back home.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.