Category Archives: Immigration Law

Newer I-9

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  On September 18, 2017, all employers will be required to use the revised form, so it makes sense to avoid any delay and begin use of the new version immediately.

What is an I-9 form and why do employers need to use it?  The Immigration Reform and Control Act of 1986 (IRCA) requires U.S. employers to verify the identity and eligibility to work on Form I-9.

All individuals, both U.S. citizens and aliens, hired on or after November 7, 1986 are required to complete the form when hired.

How do you complete the I-9?

As an employer, your duty is to verify that the employment documents employees present appear legitimate.  In order to avoid a claim of discrimination on the basis of citizenship status or national origin, an employer is not allowed to ask an employee for a specific document.  The employee’s duty is to fill out the form honestly.   The Immigration Act prohibits a person from forging or falsifying  any document for the purpose of obtaining a benefit.

When an employee presents documents from the acceptable list on the I-9 form, these are evidence of the employee’s right to work in the U.S.  Absent clear evidence of the contrary such as the  immigration enforcement informs you that the A# is wrong the employee says “I am not authorized to work,” the employer need not inquire further.

Once the I-9 is complete, rechecking documents is prohibited by IRCA.

Civil and criminal sanctions will be imposed on U.S. employers and individuals who, subsequent to November 6, 1986, hire or refer for a fee aliens who are not authorized to work in the United States.

Employers will need to adapt to these new changes no later than September 18, 2017 or face the possibility of large fines.

Call for a consult to determine what documents you need have on file to protect yourself.  Call (646) 580-0617 or complete the contact form on this website.

Dena Wurman is an expert in I-9 forms in the following industries:  Retail, Restaurant, Landscaping, Housekeeping, Maintenance, Construction.  Beware! If caught, a repeat-offender employer of illegal immigrants can face civil and criminal fines (up to $11,000 per employee) and jail time (up to five years).

Immigrants traveling

Immigrants traveling to the US have had a hard time during the past year.  Even US  permanent residents with green cards are experiencing difficulty returning to the US.  Especially those with criminal records seeking to be readmitted.  Non-citizens considering travel abroad should exercise caution.

Think before making any long trip, before seeking new immigration benefits, or applying for citizenship. You may be denied admission if these “inadmissibility” grounds apply if you:

(1) have abandoned or relinquished your permanent resident status,
(2) have been absent from the United States for a continuous period in excess of 180 days,
(3) have engaged in illegal activity after departure from the U.S.,
(4) have departed from the U.S. while in removal or extradition proceedings,
(5) have committed a criminal or related offense (including “crimes of moral turpitude”, drug trafficking, or prostitution),
or
(6) are attempting to enter at a place other than a designated port of entry or have not been admitted to the U.S. after inspection and authorization by an immigration officer.

What to some may seem relatively minor crimes, for example theft or domestic violence, may in fact be grounds for inadmissibility.  Inadmissability is a term used in immigration that means you will not be allowed to return to the US even if your family is there and you already have a green card.

If after having received your green card, you commit a crime (or more than one crime) these infractions would not come to the attention of immigration authorities until you travel abroad.  At that time you may be denied entry.

Since 9/11 the immigration service has developed elaborate systems to track travel in and out of the US.  All passports are now machine readable.  Fingerprinting technology has evolved over the past 15 years.  Paper-based systems have been phased out.  Most records are now electronic and it is easier than ever to match fingerprint records with immigration benefits and travel.

Given these new events, it is still possible to overcome an issue at the border with the right information.

Many of the grounds of inadmissibility can be waived in individual cases. For example, INA § 212(d)(3) allows the Secretary for Homeland Security to waive any of the grounds, except for a few security-related provisions, for nonimmigrants applying for a visa or seeking admission.

Waivers for permanent residents are more limited.

Are you a nonimmigrant or green card holder planning a trip?  Clear any concerns you have in advance with an immigration attorney.

H-4 Visa Holders May Lose Work Permit

There are indications that the Trump administration is preparing to issue regulations rescinding the ability of H-4 spouses to get work permits.  H-4 visas are given to the spouses of H-1B visa holders, highly-skilled foreign workers, the majority of whom are from India.

Until 2015, H-4 visa holders – who often had skill levels comparable to their spouses – were not allowed to work. In 2015, U.S. Citizenship and Immigration Services announced that some H-4 visa holders would be able to work if their spouses were on track for permanent residency in the U.S.

The primary visa holder had to be a beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or a nonimmigrant seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

If the application was approved, the eligible spouse would receive a Form I-766, Employment Authorization Document (EAD), allowing them to work during the period of its validity.  The EAD validity period generally will match the H-4 spouse’s authorized period of admission, up to three years.

The 90-day period for adjudicating these I-765 applications, however, does not begin until the companion extension application is approved.

Travel Ban Highlights

Since January 2017, three executive orders referring to immigrants have been issued by the president.  All are controversial.  In addition to funding a wall between the US and Mexico and re-prioritizing deportations, there is a proposed travel ban.

Of the three orders, the travel ban was re-written and issued again.

What is the travel ban?  The purpose of the ban is to freeze travel from primarily Muslim countries.  In early February a Washington court stopped (enjoined) the ban.

The president then drafted a new order rather than appeal this old one.

After releasing this new presidential order, a federal court in Hawaii came out with a nationwide injunction striking down all of the travel ban.

As of March 16, 2017, there is  no suspension to travel to the U.S.

Deportation Facts

The Executive Office for Immigration Review (EOIR) operates immigration courts all over the U.S.  EOIR is responsible for all hearings to deport immigrants illegally present in the U.S.

If you are a non-citizen, or an attorney with a non-citizen client, this article will cover a few key terms so that you may respond appropriately. The notice always used is most commonly referred to as an “NTA.”

A Notice to Appear (NTA) advises the immigrant or attorney to appear before an immigration judge.

Service by mail is sufficient if there is proof the government attempted to deliver the NTA to the last address provided. After receiving the NTA it is important to meet with an attorney and discuss the factual allegations presented in it. It is possible that the government may have alleged facts that are not accurate in the notice.  One strategy an attorney may use is to challenge or concede to charges in this document.

Most scheduled hearings are what the court calls “master calendar hearings.”

A master calendar hearing is an individual’s first appearance before an Immigration Judge. The purpose of the master calendar hearing is to advise individuals of their rights, explain the removal charges filed, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.

So that you may have the opportunity to secure counsel, the law requires 10 days to elapse between service of the NTA and the first removal hearing.

Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

It is worth noting that the Department of Homeland Security (DHS) does not have permission to search your home without your consent. The NTA is not a warrant.

The government needs a warrant signed by a court (not an administrative agency such as the DHS) to search your property.  You do not have to say anything to an immigration enforcement officer. Immigration is a civil matter.

Courts have said that immigration law is second only to tax law in its complexity.

Attorney Dena Wurman has represented clients in immigration hearings and removal proceedings for over a decade. If you received an NTA to appear, she is qualified and experienced to represent you, your client or your family member. For a confidential consultation call (646) 580-0617 or email dena@wurmanlegal.com

Dual Intent Visa

 

When applying for a visa to visit or work in the US, the immigration authorities are going to look very closely at your reasons for visiting or working.  More importantly, they will want to know whether members of your family already reside in the US.  The service looks at these areas because they reveal what your real reason is for visiting.

Different visas have restrictions on what you can do while using them.  For example, a B visa is intended for tourist-type activity and strictly prohibits working for payment in the U.S.

Non-immigrant visas, such as a B visa, are for individuals with permanent residence outside the U.S.  who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work or study.

On the other hand, an H visa is a “dual intent” visa.   Dual intent means you plan to visit and work and at the same time may stay for the longer term and apply for a green card.

Applying for an H1B and a green card at the same time is possible in this instance.

However, applying for a B visa and a green card at the same time is not.

When applying for either a visa or green card (which includes the authorization to work in a virtually unrestricted way) you must match your current visa intent with your future plans.

Your “intent” is a major factor the government looks at when approving your application to stay and work in the U.S.  If your intent doesn’t match, our application will be denied.

 

Qualifying Continuing Residence

If you are interested in keeping your green card and applying for U.S. citizenship, this article will explain why travel abroad may hinder qualifying for continuing residence.

If in fact you want to keep your permanent resident card, you may need to prove to the government that you are living here most of the year.

In order to meet this continuous residence requirement, the government will look very carefully at your time spent away from the U.S.   This applies in two very important instances.   In order  to 1) keep your green card or 2) apply for U.S. citizenship.  There are few exceptions.

An important term the government uses to track whether you meet this requirement is ‘continuity.”

Continuous U.S. residence can be broken by traveling and working in a foreign country.

An example of how this may happen is traveling frequently as a green card holder.  This time away can also add an element of uncertainty to a U.S. citizenship application.

Generally, there are two basic requirements for U.S. citizenship.  One is good moral character. The other is to live at least half of the year in the U.S. (continuity.) This time is counted very carefully on the N-400 citizenship application form.  An applicant must wait three or five years as a green card holder before applying for citizenship.

For citizenship, after the required three or five years pass, a green card holder submits forms to the government along with supporting documents. These forms are then reviewed by a government official and approved by this official. There is also an exam and an English test.

The government has a lot of leeway in approving applications.  Even if your application is denied, you can take it to another government court to appeal a denial.

Let’s look at an example of travel/work abroad that caused an official to deny an application for U.S. Citizenship.

The details of the case were as follows. The citizenship applicant spent more than half the year working abroad for a gas company “subsidiary” of Chevron.  If the employee worked for a U.S. company, this would fall under an exception to the continuous residence requirement for citizenship. The reviewer was not persuaded that the subsidiary  was in fact a U.S. company.

In October 2010 the application for citizenship was denied by the immigration officer. On appeal, the court found the subsidiary company was in fact a U.S. company because company shares were traded on the U.S. stock exchange.

Here is an example of how a government immigration official opinion may be overruled on appeal. It also shows how there are exceptions to rules that may apply in individual cases, depending on the facts of the case.

Thankfully, our system has checks and balances to offer people who want to become citizens a second chance.

Facing Deportation

If you are a non-citizen facing deportation, or an attorney with a non-citizen client who may be deported, this article will cover a few key terms so that you may respond appropriately to government notices.

Notice to Appear

The government will issue a Notice to Appear (NTA) to request you appear before an immigration judge.  It will be mailed to you if you are facing deportation.  You are responsible for letting the government know where you live.  If the notice is mailed to a wrong address because you have not updated your new address in the record, you are responsible, not the government.

According to the law, service by mail is sufficient proof the government attempted to deliver the NTA.   After you receive the NTA it is important to meet with an attorney and discuss the facts in the notice. It is possible that the government may have written something that is incorrect.

Master Calendar Hearings

A master calendar hearing is an individual’s first appearance before an Immigration Judge. Most hearings are what the immigration court calls “master calendar hearings.” The purpose of the master calendar is to inform.  The judge will advise you of your rights, explain the charges filed, take in information.  If required, the judge will identify the factual and legal issues.  Then, set deadlines for filing any papers needed for a new hearing.

Removal Attorney

So that you may have the opportunity to get legal advice on this notice, the law requires 10 days to elapse between service of the NTA and the first removal hearing. Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

 

Immigration Forms are Tricky

If a U.S. immigration form is in English it should be easy, right? After printing out immigration forms, many clients still have issues.

It is not uncommon to skim through a form and fill in the blanks quickly.  For example, in one case the client’s father checked a box that he did not plan to have any of his children included in the application.

When it came time for the consular interview he told the interviewer he did want to include his daughter.  The interviewer asked, where was she…why wasn’t she in the interview?

Is a form appropriate under the circumstances?

For example, in one case a well-meaning mother filled out a number of B visa forms for her daughter so that she could visit her boyfriend.  When the visitor B visa expired, the couple was told by the USCIS agent to simply cross the Mexican border and have her foreign passport stamped .

She had spent most of the entire year in the US on a visitor visa, which is restricted to under six months.

It wasn’t until she attempted to re-enter the US that the complete time period she spent here was evident.  She was detained at the airport and returned to her country of origin.

Where do I file my immigration forms

Immigration application processing is redistributed frequently based on the number of people sending in forms.  Various service centers throughout the U.S. accept forms.  These locations change. The new mailing addresses are updated on the USCIS website.   When a form is “expedited” it’s mailed to a different address for premium processing, not the regular address.

More Tips

TIP 1:  Fees are usually required with a form. When the filing fees change, if the new fee is not mailed with the form, everything will be returned to the applicant.

TIP 2:  Immigration law changes every day. When submitting a form with a letter or a legal brief, understanding the twists and turns in the law and hitting all the required, legal elements is important.

TIP 3: A petition needs a “wow” factor. There is a short time to make a big impact. A government reviewer will set aside a confusing, large petition for a smaller well-crafted one.  If there isn’t a persuasive reason why the evidence is included and how it proves the case, it should be left out.

It is best to work with an experienced attorney.

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system. Through her efforts, new immigrants are awarded visas, green cards and U.S. citizenship. Still have questions?   This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

Prevailing Wage

Department of Labor

Congress has mandated that the Department of Labor (DOL) monitor the H1B program.

The DOL is responsible for regulating any adverse impact immigrant workers may have on wages of American workers doing the same kind of work.  The employer must determine the prevailing wage rate before filing the labor condition application, in order to affirm that it is paying the higher of the actual wage or prevailing wage rate.

Then, an employer must file an “application” affirming that the employer will pay this agreed wage rate to H1B workers.

What is a prevailing wage?

The “prevailing wage” is defined by the DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment.

Similarly employed is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment.

Online Application

Before 2010 state workforce agencies processed prevailing wage requests for H-1B visa applicants. A relatively simple process, requests were faxed and a response came within a few business days. In 2010 these requests were centralized to an online filing system with the Department of Labor.

This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.