Same Sex Immigration Benefits

Same Sex Marriage Visa and Immigration Benefits After DOMA

Yesterday, the U.S. Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional.  Put differently, the Court stated that the Federal government must treat all legally married couples equally (including, legally married same-sex couples).

What Does This Mean For Immigration Benefit Purposes?

With this ruling, the USCIS, and all other immigration agencies, will soon begin accepting, approving, and providing immigration benefits for same-sex couples.  However, the firm cautions that it may take a little bit of time for the immigration agency to work out the logistics of the process.

What Can Same-Sex Couple’s Do Now To Obtain Immigration Benefits?

Now that DOMA is invalidated, all married couples will be treated equally before the immigration agency.  Therefore, same-sex married couples should prepare to file marriage visa applications now, while waiting for official announcement from USCIS.  To prepare, couples should:

The immigration agency has always been paranoid about whether a marriage is a good-faith marriage – and the firm believes that the immigration agency may be extra vigilant in same-sex marriages.  Therefore, the firm suggests speaking to an immigration lawyer to ensure that a couple is adequately prepared to file.  Please contact the Firm if you would like to speak to an Upstate New York attorney about the immigration benefits available to Same-Sex Married Couples.


Family-Based Immigration To United States

Most immigrants to the United States come through the family-based immigration process.  However, simply having a relative who is a U.S. citizen is not enough to qualify for immigration.  Immigration eligibility is determined based upon a number of factors, including a person’s age, family relationship and marital status, among other factors.

The following are the most common family relationships by which a person can obtain permanent residency (aka green card) in the United States.   If you are related to a US citizen and seek a green card, please contact an Albany visa lawyer for assistance.

Spouse of a U.S. Citizen

A qualifying spouse of a U.S. citizen can immediately apply for an immigrant visa to the United States upon marriage.  If the marriage visa applicant is in the United States, the couple will need to submit a petition to the USCIS, and then both will need to attend a marriage visa interview before the applicant will be able to become a green card holder.   If the marriage visa applicant is outside of the United States, the couple will need to submit a petition to USCIS, wait for its approval, and then the marriage visa applicant will need to attend an interview at the US Consulate near to where the marriage visa applicant lives.  After the consular interview, the applicant will be able to enter the United States as a permanent resident (if approved).

If the marriage is less than two years old when the green card is granted, the couple will need to submit another petition two years after the initial petition.  The couple will also be required to both attend a Removal of Conditions interview.

Fiance(e) of a U.S. Citizen

The K-1 Fiance(e) visa allows a foreign national fiance(e) of a U.S. citizen to enter the United States for the sole purpose of marrying the U.S. citizen within 90 days of entry.  The K-1 fiance(e) visa is for foreign nationals located outside of the United States, and requires a couple to submit a petition to the USCIS, wait for its approval, and then have the foreign national applicant attend an interview at the U.S. Consulate closest to the foreign national’s residence.

Once in the United States, the couple will be required to marry within 90 days.  Additionally, once married, the foreign national will need to submit an application to the immigration agency to “adjust status” and become a green card holder.

Minor Child of a U.S. Citizen

A minor child of a U.S. citizen is also eligible to obtain immediate permanent residency in the United States.   To qualify, a minor child must be under the age of 21, and unmarried.  In addition, it is often possible that as soon as a minor child of a U.S. citizen becomes a lawful permanent residency, US citizenship is automatically granted to the child.

Parent of a U.S. Citizen

A parent of a U.S. citizen is eligible for permanent residency through their U.S. citizen child.    Their eligibility is for an immediately available visa, and there is no waiting period for a visa number to become available for a parent of a U.S. citizen child.  The biggest restriction to a parent’s eligibility, is that the U.S. citizen child must be 21 years old to apply for either parent.

Other Family Categories

In addition to the above categories, a person may be eligible for permanent residency in the United States if he or she is:

However, for any of these categories of relatives, the immigration process often requires an extensive wait for the visa to become available.    The wait is often years.


Although many of the more closely held family relationships create the ability to obtain permanent residency in the United States (if a relative is a US citizen).  However, many other family relationships simply do not create any immigration benefits or eligibility.

If you are family member of a U.S. citizen, and seek to become a permanent resident in the United States, please contact an Albany immigration attorney for assistance.  Without following proper procedure – the process can become daunting.

NYSBA Finds “Acute Shortage” of Quality Immigration Representation in Upstate New York

NYSBA Finds “Acute Shortage” of Quality Immigration Representation in Upstate New York

Recently, the New York State Bar Association (NYSBA) issued a 49 page report discussing what it sees as a crisis within immigration proceedings in New York State, and in Upstate New York in particular.

The report highlights that current immigration law can be quite draconian and that the inability of individuals to obtain proper legal counsel can have severe consequences.

Also of concern, the report noted that the shortage of immigration lawyers have made immigrants more susceptible to being victimized by unlicensed, nonattorney immigration “specialists” who defraud unsuspecting immigrants of vasts amounts of money before disappearing without doing any work (or doing shoddy work).

If you are in Upstate New York, and are need of immigration assistance, please contact an immigration attorney capable of handling your case in a professional, efficient, and personal manner.

Dreamer Deferred Action Overview

Dreamer Deferred Action Overview

As many know, last summer President Obama grew tired of the inaction on the Dream Act and decided to provide Dreamer deferred action (DACA) to qualifying individuals who had entered the United States before the age of 16 and did not currently have lawful immigration status.  The following is meant to give a detailed, but nonexhaustive overview of the program. To learn more, please contact a Capital Region immigration lawyer.

Dreamer Deferred Action gives qualifying individuals two years of legal status, during which time they are eligible for work authorization within the United States.  Deferred action does not lead to permanent residency within the United States, or U.S. Citizenship.

Basic Eligibility Requirements:

The basic criteria for DACA eligibility is:

  • Be under the age of 31 on June 15, 2012,
  • Entered the United States before the age of 16,
  • Have continuously resided in the United States since at least June 15, 2007,
  • Have no lawful immigration status on June 15, 2012,
  • Be present in the United States on June 15, 2012,
  • Have graduated from high school (or obtained a GED), and
  • Not been convicted of certain criminal actions.

In addition, there are a few other questions that should be examined before an applicant applies for DACA relief.  A competent immigration lawyer can review these eligibility requirements with you.

DACA Frequently Asked Questions:

If granted, will an Applicant be Able to Work?

Yes.  Once the DACA application is approved with work authorization, the DACA recipient is eligible to work for the duration of the work authorization document.

How Long Will Dreamer Deferred Action Status Last?

DACA is initially granted for two years.  After those two years, it should be possible to reapply for another two years.  However, Presidential Candidate Mitt Romney has indicated that he will end the DACA program if he is elected President – So stay tuned – there are no promises.

Are all Criminal Convictions a Bar to DACA Eligibility?

No.  Not all.  However, many criminal convictions are.  Therefore, it is necessary to speak to an immigration lawyer to determine your eligibility before you apply.

What if An Applicant Left the Country For a Short Time?

Leaving the country prior to the announcement does not automatically eliminate one from being eligible for DACA.  However, eligibility will be judged on a case-by-case basis and an immigration lawyer would be best able to determine an individual’s situation.

Application Forms and Process:

The DACA process is mostly paper-based and requires a mailed submission to the U.S. Citizenship and Immigration Services Agency ( the U.S. Immigration Agency).  The submission includes at least two immigration forms, documentary evidence of eligibility, and a government filing fee of $465.

Once the application is submitted, the government will provide a receipt notice and schedule a biometrics interview.  At the biometrics interview, the applicant will be required to provide their fingerprints and have their photo taken.

Free Legal Assistance:

Numerous organizations and entities are providing free legal assistance to Dreamer Deferred Action hopefuls,  New York State is also attempting to help qualified applicants.

Although Gafner Law Firm can not endorse the assistance that any of these organizations can or will provide, these organizations will hopefully provide some clarity to those applicants unable to pay for an attorney.

New York Capital Region Dreamer Deferred Action Lawyer Assistance

If you wish to discuss your situation on an individual basis, please contact a New York Capital Region DACA lawyer.   A qualified immigration lawyer can analysis your eligiblity, discuss the application process, and provide a necessary document list.

Gafner Law Firm can provide such direction during an immigration consultation on the Dreamer Deferred Action process.   If you subsequently decide to retain the firm to guide you through the DACA process, the cost of the immigration consultation will be deducted from the DACA process legal fees.

Custom & Border Protection Checkpoints in Albany?

Customs & Border Protection Checkpoints in Albany?

Most residents of Albany and the Capital region would not consider the area to be on the border with Canada.  To them, a border town might be Plattsburgh or Buffalo.

Nevertheless, the U.S. Customs & Border Protection (CBP) considers a significant chunk of the capital region to be a border region.  As such, the CBP routinely sets up immigration checkpoints throughout the area.  These checkpoints are meant to deter the entrance of unauthorized foreign nationals into the United States.  As detailed by a New York Times article, similar patrols often ensnare other unsuspecting citizens and immigrants.

How is it possible that the Albany area is included within the border region?  The CBP considers any place with in 150 miles of the border to be within its jurisdiction.  Further, the Supreme Court has upheld the agency’s right to setup such checkpoints.  As such, it commonly sets up checkpoints on I-87 near Schroon Lake and north of Lake George.  Additionally, it commonly sets up checkpoints along Route 3 in the Adirondacks.

Dreamer Deferred Action Overview

Dreamer Deferred Action Overview

Overview:  The Obama Administration was announced that the government will begin offering Deferred Action to “Dreamers” who meet certain requirements.  Dreamers are those individuals who entered the United States as minors.  Since the announcement is new, the requirements and procedure has not yet been fully explained.  Until more details are given,  many immigration lawyers suggest most possible applicants should wait to apply.  Many applicants, in fact, cannot yet apply.

If you think you are eligible, please speak with an immigration lawyer before submitting any applications.

What is Deferred Action?:  Deferred Action status conveys immigration status to qualifying individuals.  The status stops an individual from being deported from the United States and provides qualifying individuals with work authorization.  Deferred Action status does not provide a path to permanent residency.  Further, the status is only valid for two years (with the ability to renew).

General Requirements:  Not all of the requirements have been released by the government.  The following, however, are the general requirements:

  • Be 15-30 years old, and have entered before age 16
  • Have been present in the U.S. for 5 years as of June 15, 2012
  • Have maintained continuous residence
  • Have not been convicted of one serious crime or multiple minor crimes
  • Be currently enrolled in high school, graduated or have a GED, or have enlisted in the military

Process:  Two groups of individuals are eligible for Dreamer Deferred Action – those currently in Removal Proceedings (aka Deportation Proceedings) and those not in Removal Proceedings.

Those currently in removal proceedings can apply for Deferred Action through the Immigration Court Process.

Those not currently in removal proceedings do not yet have a formal procedure for applying.  It is expected that the government will announce the process in August.  Nothing should be submitted to the USCIS before the process is announced.

 Deferred Action Concerns:  Numerous concerns are presented by the Deferred Action program.  The following are just some:

  • There is no guarantee that the next administration will continue the program.
  • The program does not provide a path to permanent residency in the United States.
  • There is no indication yet of what will happen when someone ages out (turns 31).
  • What happens to family members who do not qualify?
  • What happens if a deferred action application is rejected?

Suggestions:  For the reasons above, many immigration lawyers suggest that would be applicants wait before applying.  Some immigration lawyers are suggesting using “extreme caution.”

All would-be applicants should  speak to an immigration attorney before submitting an application.

How Does Someone Immigrate to the United States?

How Does Someone Immigrate to the United States?

Not everyone is eligible to immigrate to the United States.  Instead, a person intending to immigrate must first establish eligibility to immigrate.  There are multiple means of establishing eligibility, however, the most common means of eligibility are family-based immigration, employment-based immigration, and investor immigration.

Within each of these broad categories are many sub-categories with unique eligibility requirements.  To find out more, please review the other pages on, or contact Gafner Law Firm’s Albany Immigration Law Office.


Are All  Foreign Nationals in the United States Immigrants?

A common misconception that Americans have is that all foreign nationals in the United States are “immigrants.”  However, that is not the case.  Foreign nationals in the United States normally enter the country in either nonimmigrant or immigrant status.  Individuals in nonimmigrant status are authorized to remain in the U.S. for a set period of time (e.g. students, tourists, etc.).  Individuals who enter the U.S. with immigrant status are considered permanent residents.  Being a permanent resident allows an individual to remain in the United States indefinitely.

As with all facets of immigration law, there are exceptions and caveats to the categories above – yet most individuals fall into these categories.

Do Immigrants Immediately Become U.S. Citizens?

Another common misconception is that all immigrants can immediately apply for U.S. citizenship.  That is not the case.  Individuals who become permanent residents must wait five years before applying for naturalization (although in some circumstances this period can be shortened).  In some rare cases, it is possible to immediately apply for citizenship.

To learn whether you are able to naturalize, please contact an Albany naturalization lawyer for more information.

Caveat:  Immigration Law Is Filled With Caveats/Exceptions

The above is a very general overview of immigration law and does not account for all of the exceptions and caveats that exist within immigration law – there are many.  Because of theses exceptions, each person’s case is different and should be reviewed on an individual basis by a competent immigration lawyer.  If you would like to learn more about what your immigration options may be, please contact an Albany immigration attorney.


Gafner Law Firm Opens Albany Immigration Law Office

Gafner Law Firm Opens Albany Immigration Law Office

Gafner Law Firm is proud to announce the opening of its Albany Immigration Law Office.  With a practice exclusively focused on immigration law, the firm hopes that its Albany immigration law office will allow it to provide the Albany area with a reliable source of immigration advice and legal services.

The firm provides services in all areas of immigration law, including family-based immigration, employment-based immigration, investor imigration, removal defense and naturalization.

The firm’s founder, Chris Gafner, was born and raised in Upstate New York and is eager to return to the area and offer his services to the many immigrants who call Albany, and the Capital Region, home.  To learn more about immigrant lawyer Chris Gafner, and the firm, please review the firm’s Albany immigration law website.  Additionally, if you have any questions, please feel free to contact the firm.