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Recognizing immigration issues
This document discusses recognizing immigration issues that may arise in various legal practices. It notes that over 13% of Washington residents are foreign-born and around 1 in 10 marriages are to a foreign-born spouse. Various current immigration issues are discussed, such as the potential ending of DACA and increasing deportations. Common misperceptions about immigration are also addressed, such as what the I-864 affidavit of support form requires of sponsors and how long the obligation lasts. The document concludes with a discussion of proper I-9 employment eligibility verification form procedures to avoid legal issues.
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Recognizing immigration issues
- 1. Recognizing Immigration Issues in YourPractice Greg McLawsen Managing Attorney
- 2. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 2
- 3. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 3 “I practice x/y/z law, so I don’t deal with immigration.”
- 4. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 4 13.3% ofWashington residents are foreign-born.
- 5. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 5 ~1/10 marriages has a foreign- born spouse
- 6. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 6 Immigrants open businesses. Lots of them.
- 7. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 7 Did you know that we live in a border state?
- 8. w w w. s o u n d i m m i g r a t i o n . c o m Intro page 8 Current events1 9 Misperceptions2 The Form I-864, Affidavit of Support3 Form I-9 compliance4
- 9. Greg McLawsen Managing Attorney SoundImmigration @mclawsen greg@soundimmigration.com www.soundimmigration.com
- 10. w w w. s o u n d i m m i g r a t i o n . c o m www.soundimmigration.com America’s web-based immigration law firm page 10
- 11. w w w. s o u n d i m m i g r a t i o n . c o m www.soundimmigration.com/events page 11
- 12. w w w. s o u n d i m m i g r a t i o n . c o m www.soundimmigration.com/lawyers page 12
- 13.
- 14. w w w. s o u n d i m m i g r a t i o n . c o m What’s happening? page 14
- 15. w w w. s o u n d i m m i g r a t i o n . c o m What’s next? page 15 1. MuslimTravel ban 2.0
- 16. w w w. s o u n d i m m i g r a t i o n . c o m What’s next? page 16 2. Cancel DACA?
- 17. w w w. s o u n d i m m i g r a t i o n . c o m What’s next? page 17 3. Ending “sanctuary cities.”
- 18. w w w. s o u n d i m m i g r a t i o n . c o m EXTREME VETTING!!! page 18 4. “Extreme vetting.”
- 19. w w w. s o u n d i m m i g r a t i o n . c o m What’s next? page 19 5. Begin deporting 2,000,000 criminal “illegal” aliens.
- 20.
- 21.
- 22. (2) You can applyfor a “work permit”
- 23.
- 24. (4) I don’t needto validate work authorization for my own law firm staff/lawyers
- 25.
- 26.
- 27. (7) Family law attorneys may safelyignore immigration status
- 28. (8) Most immigrants come tothe U.S. illegally
- 29. (9) Immigrants don’t/don’t have to fileincome tax returns
- 30. The Form I-864Affidavit of Support
- 31.
- 32. w w w. s o u n d i m m i g r a t i o n . c o m Remember the 1990s?
- 33. Who will bethe support net for immigrants? American public? Visa petitioner.
- 34. w w w. s o u n d i m m i g r a t i o n . c o m Required in every family-based case.
- 35. 1. Primary sponsor– the visa petitioner. 2. Joint sponsor – if visa petitioner has inadequate income. Who is the sponsor?
- 36. w w w. s o u n d i m m i g r a t i o n . c o m Crossover issues What is the obligation? page 36 125% FPG. $14,850/year + $5,200 for each additional member.
- 37. w w w. s o u n d i m m i g r a t i o n . c o m Crossover issues How long does the obligation last? 1. Becomes citizen. 2. Credited w/ 40-quarters of work. 3. Abandons residency and departs U.S. 4. Deported and gets new sponsor. 5. Dies. page 37
- 38. w w w. s o u n d i m m i g r a t i o n . c o m Crossover issues page 38 Plus attorney fees + costs.
- 39. w w w. s o u n d i m m i g r a t i o n . c o m Jurisdiction • Personal jurisdiction. • Sponsor expressly submits to any competent court • One (silly) exception in D. Utah. • Subject matter jurisdiction. • Federal • Typically close enough to a federal question • But not close enough for M.D. Florida (Winters, etc.) • State. • Unanimous: yes • But as an alimony/maintenance order, authority split page 39
- 40. w w w. s o u n d i m m i g r a t i o n . c o m Affirmative defenses almost always fail • Lack of consideration. • Prior iteration: “overcome inadmissibility” • A thing of value… at least after gloss • Current version: “becoming permanent resident” • i.e., you don’t get LPR status without this form • Unconscionability • So far a loser… similar to prenuptial agreements • Not a contract of adhesion • Fraud • Possible; always fails at summary judgment stage page 40
- 41. w w w. s o u n d i m m i g r a t i o n . c o m How about a pre/post-nuptial waiver? page 41
- 42. w w w. s o u n d i m m i g r a t i o n . c o m Judgment: page 42 $104,000
- 43.
- 44. w w w. s o u n d i m m i g r a t i o n . c o m A hypo page 44
- 45. w w w. s o u n d i m m i g r a t i o n . c o m The Form I-9 page 45
- 46. Within three days ofnew hire
- 47.
- 48. Program should address • Advertisingand recruitment for new positions; • Applicant screening and interviewing; • Completion of the Form I-9 and review of supporting records; • Purging forms; • Periodic spot checks of I-9 records; • Review service contracts (employee?); and • Periodic review of the I-9 policy.
- 49. Questions? Greg McLawsen Managing Attorney SoundImmigration @mclawsen 253-203-3170 greg@soundimmigration.com www.soundimmigration.com
Editor's Notes
- #3 Wednesday, November 9, 2016
- #9 Know enough to talk to your clients
- #22 While a common point of confusion, this distinction matters. “Lawful permanent residents” are admitted to live and work indefinitely in the U.S. After three years (if married to a U.S. citizen petitioner) or five years (everyone else), a resident may apply for citizenship. Residents are subject to grounds of deportation and can lose their status if they take up residency abroad; citizens are set for life. For someone beginning the process of living permanently in the U.S., they will be applying for residency, not citizenship. (Don’t worry, NPR gets this confused all the time).
- #23 Unfortunately, there is no garden variety work permit that just anyone can apply for. As a U.S. employer, or would-be worker, there’s no one-size-fits-all solution. Instead, authorization is tied to specific visa categories and other immigration benefits. Bottom line: whether a work solution is available will always be fact-dependent.
- #24 Legal immigration status is not required to be eligible for L&I benefits in Washington State. Employers must tread carefully if they believe an employee claiming benefits is undocumented; singling out that employee for scrutiny of immigration status may run afoul of anti-discrimination laws.
- #25 All U.S. employers are required to ensure new hires are authorised to work in the country. The Form I-9 must be completed within three business days of a new hire, and the employer must inspect the supporting documents. All employers need to follow the guidelines for completing and retaining these mandatory forms. See USCIS available at http://www.uscis.gov/i-9. USCIS, M-274, Handbook for Employers, Guidance for Completing Form I-9 (rev’d Apr. 30, 2013), available at http://www.uscis.gov/i-9.
- #26 Many believe that immigration into the U.S. consists mostly of Mexican nationals. Yet in 2013, of 990,553 people who became legal permanent residents of the United States, only 135,038 (14%) came from Mexico. Most immigration attorneys work routinely with folks from all continents, and those interested in the practice area should not shy away merely due to lack of Spanish ability. Randall Monger and James Yankay, U.S. Lawful Permanent Residents: 2013, Annual Flow Report, Office of Immigration Statistics, U.S. Department of Homeland Security (May 2014), available at http://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2013.pdf.
- #27 Most attorneys think their area of practice is uniquely complex, because we’re each familiar with the nuances of our own field. The complexities of immigration law are especially vexing because it sometimes seems that a mere “form” simply needs to be “filled out.” Without a working knowledge of the immigration statute (and regulations, and case law, and agency guidance) it’s not possible to know what benefit should be pursued. We welcome all of our colleagues to learn more about the immigration bar, but urge caution with immigration matters that appear simple. Washington has a particularly active chapter of the American Immigration Lawyers Association. See http://www.aila.org/ (last visited March 10, 2015).
- #28 One of the joys of a niche law practice is getting to ignore most other areas of law. But sometimes we’re forced to cross over. Following the Padilla decision, criminal attorneys have been forced to navigate the impossibly complex world of “crimmigation” advice. It’s not as rough for matrimonial attorneys, but one should at least learn about the Form I-864, Affidavit of Support. Under this immigration form, a U.S. petitioner is required to support his or her foreign national spouse potentially forever. It is best practice to screen clients for immigration status in family law matters. If the individual is a foreign national, an immigration attorney can usually quickly assess whether status would be impacted by dissolution proceedings or vice versa. Cf. Suing on the I-864 Affidavit of Support; March 2014 Update , Greg McLawsen, 19 Bender’s Immigr. Bull. 343 (Apr. 1, 2014), available at http://bit.ly/1sJp1dL.
- #29 There are approximately 41 million individuals of foreign origin living in the United States. Of those 41 million, about 19 million have become naturalized U.S. citizens. The remaining 22 million are made up of legal permanent residents, other types of temporary visa holders, and undocumented immigrants. It is estimated that there are about 12 million undocumented immigrants. However, it is also estimated that 40% of those currently considered “undocumented” came legally into the United States using a valid visa and simply overstayed. Therefore, using rough estimates, only about 7.2 million of the 41 million immigrants in the United States came to the United States by illegally crossing a border. Jie Zong and Jeanne Batalova, Frequently Requested Statistics on Immigrants and Immigration in the United States, Migration Policy Institute (February 26, 2015), http://bit.ly/1hwyQGg.
- #30 Every person in the United States who earns income above the specified minimum must file Federal income tax returns. Even undocumented immigrants who don’t have a valid social security number must file income tax returns using an individual tax identification number (ITIN). Indeed, filing income tax returns on a yearly basis may be helpful for certain immigration processes as a way of showing the applicant’s good character.
- #33 Nirvana. In the mid 1990s, there was a huge national debate about both our welfare system and also our immigration system. Both received major overhauls.
- #34 Congress asked itself the policy question. “If someone immigrates to the United States, and then can’t support herself, who should bare responsibility for ensuring her basic needs are met?” One option would be to make that person eligible for public benefit programs that provide for basic needs. But congress specifically decided that recent immigrants would not be eligible for most benefits. Instead, congress chose to make the visa petitioner responsible for any immigrant that he choses to sponsor. Basically, the visa sponsor becomes the insurance policy for the immigrant.
- #35 Virtually all enforcement cases are marriage-based.
- #45 As the line supervisor at Ink Widgets,Inc. you’re winding up production on a rainy February afternoon when you get a call. A woman two states away, after requesting unemployment benefits, has found that someone else has been using her Social Security Number. She’s discovered you’re that person’s employer and she’s mad. You’re completely confused. As a small business manager you scramble to contact an attorney, and he asks to see the employee’s Form I-9.
- #48 Penalties for non-compliance can be steep. "Willful" violations run into the multiple $100,000s in fines, not to mention the costsof defense litigation. Even seemingly clerical errors, like a missing signature, could be considered substantive violations that can add up across the workforce to substantial penalties. Worse yet, employers found engaging in a "pattern of practice" may face steep fines (up to $3,000 for each unauthorized alien, even on the first offense) and even imprisonment. An employer who asks too many questions, or the wrong types of questions, may run afoul of anti-discrimination laws policed by the DOJ's Civil Rights Division as well as the EEOC. Asking about "U.S. citizenship" or for specific types of work authorization documents can lead to exposure to liability for civil rights violations. Zeal without knowledge is dangerous in the arena of I-9 compliance. Even mom-and-pop shops should take a by-the book approach and ensure that proper policies and practices are in place. These should encompass recruitment of new employees, applicant screening/interviewing, the on-boarding process, and records retention. Compliance isn't onerous once sound policies and practices are in place, but they need to be carefully structured.