No Seminars Scheduled for September 2010
Monthly Postings
August 2010
Here is a summary of events in U.S. immigration this month. Fee increases are in the pipeline although citizenship applicants will not be impacted this year. Nationally, the total number of immigration applications filed is down resulting in a multi-million dollar gap in projected revenue to the U.S. immigration service. Although no mention has been made of the exact source of the shortfall, it is estimated at $200 mil.The uncertain U.S. employment environment has put pressure on government officials to reduce foreign labor who typically are employed by staffing agencies on H visas. This resulted in a wave of visa applicant denials this year on applications that in prior years were approved, contributing to a further fall in the number of total applications for visas, paid for by fees. As a result, here is a partial list of increases: EB 5 Immigrant Investor Regional Center Fee, Civil Surgeon Fee, Adjustment of Status Fee, Employment Authorization Fee. Employers will also pay a higher fee for temporary worker visas. Postponing that citizenship application? Now is the time to file. The actual cost of processing a citizenship application is not covered by the fee charged, therefore future increases are imminent.
July 2010
No employer is expected to be a forensic document specialist. There are a number of ways an individual may work legally in the U.S. The variety of documents can be overwhelming. In many cases, there is no specific document to guarantee an individual is authorized to work. Even seasoned human resource managers have questions about obscure categories such as TPS (Temporary Protected Status) and asylum.
Efforts to standardize U.S. employment documents have been met with resistence in the past. On one side are human rights advocates who don't want the government interfering in our personal matters. On the other, there are angry employers who face the prospect of litigation for refusing to employ an immigrant when they are unsure of their work status or whether to lay off an employee without a valid social security number. Where are the government officials who should be solving this problem?
There are indications a national identity document may be in the works. Recently, Charles E. Schumer and Lindsey O. Graham met with President Obama to propose a high-tech, fraud-proof Social Security card. Their proposal would require all U.S. citizens and legal immigrants who want jobs to obtain the card.
No government database would house everyone's information. Prospective employers would be responsible for swiping the cards through a machine to confirm a person's identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.
Officials believe a tamper-proof ID system would dramatically decrease illegal immigration and would reduce the government revenue lost when employers and workers here illegally fail to pay taxes. Unfortunately, we already know the continuing threat is not fraudulent documents, but imposters utilizing genuine documents.Let's see whether the government can overcome that problem. Will follow developments in this area with great interest.
June 2010
Most employers are confused about work documents and with good reason. There is no single U.S. identity card and an employer is not legally permitted to request a specific document when hiring a new employee. When I first started my practice, I would focus my presentations on the list of documents on the form called the I-9. The form itself has three columns listing the types of documents an employer is required to review within three days of hiring a new employee. Both citizens and non-citizens are required to fill out the form if they are an employee.
After winning my first asylum case, my client needed to start working and all he had was an asylum grant on a sheet of paper signed by the judge. Technically this form is legal evidence of work authorization. It is not on the I-9 list. So I looked up the rule and came up with a very long list of ways employees can work legally in the U.S. Here they are:
- An alien who is a lawful permanent resident
- An alien admitted to the United States as a lawful temporary resident as evidenced by an employment authorization document issued by the Service
- An alien admitted to the United States as a refugee
- An alien paroled into the United States as a refugee
- An alien granted asylum for the period of time in that status
- An alien admitted to the United States as a nonimmigrant fiancé or fiancée
- An alien admitted as a parent (N-8) or dependent child (N-9) of an alien granted permanent residence
- An alien admitted to the United States as a citizen of the Federated States of Micronesia
- An alien admitted as a nonimmigrant spouse
- An alien granted withholding of deportation or removal for the period of time in that status
- An alien who has been granted extended voluntary departure
- An alien granted Temporary Protected Status
- An alien granted voluntary departure by the Attorney General
- An alien granted Family Unity benefits (LIFE) Act
- Any alien in V nonimmigrant status
- An nonimmigrant alien victim of a severe form of trafficking in persons
- Aliens authorized for employment with a specific employer incident to status
- A foreign government official (A-1 or A-2), pursuant to §214.2(a)
- An employee of a foreign government official (A-3), pursuant to §214.2(a)
- A foreign government official in transit (C-2 or C-3), pursuant to §214.2(c)
- An alien employed only by the treaty-qualifying company (also designated "E-1" or "E-2")
- A nonimmigrant (F-1) student who is in valid nonimmigrant student status
- Curricular practical training (internships, cooperative training programs, or work-study programs)
- A representative of an international organization (G-1, G-2, G-3, or G-4)
- A personal employee of an official or representative of an international organization (G-5)
- A temporary worker or trainee (H-1, H-2A, H-2B, or H-3)
- An information media representative (I), pursuant to §214.2(i) of this chapter
- An exchange visitor (J-1), employed only by the exchange visitor program sponsor
- An intra-company transferee (L-1), pursuant to 214.2(1) of this chapter
- An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O-1)
- An athlete, artist, or entertainer (P-1, P-2, or P-3)
- An international cultural exchange visitor (Q-1)
- An alien employed only by the religious organization through whom the status was obtained
- Officers and personnel of the armed services of nations of the NATO
- A nonimmigrant engaged in business activities of North American Free Trade Agreement (NAFTA)
The key takeaway in this lesson is that authorization to work is not based on a single card. That's what I go over in my presentations. An employer can get into trouble when they ask for a single card, or specific form of ID from an employee.
