Immigration FAQ2 - McCleave & Shields LLC

Who needs an employment authorization document prior to seeking employment in the US?
How can an employer become liable for inappropriate employment activities?
How do legal residents deal with personal taxation?
How do immigrant requirements affect international adoptions?
Can foreign nationals graduating from US universities stay in the country to work?
How can an employer sponsor a foreign worker?
Are there special immigration rules for NAFTA countries?
How can an immigrant lose his or her Green Card?
What is conditional resident status?
Learn More: Immigration Law

Who needs an employment authorization document prior to seeking employment in the US?

Certain classes of nonimmigrant visa holders (those who receive permission to work temporarily in the US) will need to request an employment authorization document (EAD) before they can begin working in the US. Currently, the following classes must apply for EAD:

Academic student visa holders seeking employment off-campus
Aliens in the process of adjusting to legal permanent resident status
Fiancés of US citizens
Dependents of foreign government officials

Additionally, those with asylee, refugee or temporary protected status also must receive EAD prior to beginning employment in the US. EAD requests may be submitted electronically or by mail to the US Citizenship and Immigration Services (USCIS). Not all applicants will qualify for electronic filing.

US citizens and legal permanent residents do not have to receive EADs before they can begin working in the US. US citizens only need their Social Security cards and legal permanent residents only will have to present their Alien Registration cards, or “Green Cards” as they are more commonly referred. However, it should be noted that legal permanent residents may not be eligible for every type of employment, including those that require certain security clearances.

How can an employer become liable for inappropriate employment activities?

There are many ways in which an employer can incur liability under the employer-sanctions provisions of the Immigration Reform and Control Act (IRCA) and the Immigration and Naturalization Act (INA). Depending on the violations, an employer may face civil and criminal sanctions. Civil penalties can amount to thousands of dollars per violation. While criminal penalties are rarer, they can result in jail time for convicted employers.

Most employers believe that their liability extends only to employment of an unauthorized alien. The INA does provide sanctions for knowingly hiring and retaining unauthorized aliens, but it is also illegal for employers to hire new workers without first performing the requisite employment verification procedures. Every new hire, even if he or she claims US citizenship, must produce evidence of employable status for the employer’s inspection. This may include a Social Security card, Alien Registration Card (“Green Card”) or Employment Authorization Document (EAD). The employer then must complete the federal Employment Eligibility Form, or I-9, certifying that the employer personally viewed the new employee’s documentation.

In some instances, employers may be held liable for accepting illegal or fraudulent documentation of a worker’s employability. The employer should retain in original form or on microfiche completed I-9s. Employers may face sanctions for not completing this form whether or not any of their employees are unauthorized aliens.

Employers must not discriminate against potential employees based on their nationality or citizenship. Many employers may avoid foreign-born applicants in order to ensure compliance with hiring rules, but the IRCA imposes liability for such discrimination, whether intentional or not.

The imposition of immigration rules on the employment relationship creates new risks for employers. In order to navigate the growing body of these laws and regulations, employers should seek the assistance of an immigration attorney.

How do legal residents deal with personal taxation?

Almost every country regulates tax treatment for residents working abroad and foreign nationals employed domestically. These laws vary from nation to nation, but many possess striking similarities. Generally, countries exercise tax jurisdiction based on nationality or territoriality, claiming taxes on gains of their nationals regardless of location, as well as on gains earned within their territories. Thus, one individual can be subject to taxes for the same income in his or her home country and country of residence.

To decrease the possibility of double taxation on these individuals, many countries use tax treaties to simplify international tax treatment. Most of these treaties concern only two negotiating countries (“bilateral” treaties); the United States alone honors over 50 individual bilateral tax treaties. The treaties reduce taxation barriers in order to encourage trade and investment. These treaties set tax authority for certain types of income and gains earned by nationals of the treaty countries. Although tax credits and exemptions for foreign income resolve many double taxation issues, jurisdictional overlaps still occur. Tax treaties settle these issues, thereby reducing overall tax burdens for far-flung individuals and prompting increased international cooperation.

How do immigration requirements affect international adoptions?

US citizens seeking to adopt children from other countries must meet many requirements before the children will be able to enter the US. Whether the parents complete the adoption in the child’s home country or bring the child to the US to complete the adoption, the child will have to have a visa in order to travel to the US. Children adopted abroad will need an approved IR-3 visa while children seeking entry into the US to complete an adoption will need an approved IR-4 visa.

Either the adoptive parents or their legal representatives will need to apply for the visa with the US embassy or consulate in the child’s home country. They will need to meet in-person with an officer, who will determine if the child meets the requirements to receive a visa. The child will have to undergo a medical exam to check for communicable and other diseases, illnesses and disabilities. The child also will have to have proof of certain vaccinations (in some instances, the parents will be able to get the vaccinations after the child has entered the US).

Parents will need to have a copy of the child’s birth certificate or birth record, the child’s passport and a copy of the completed adoption certificate, if the adoption was completed abroad. Parents also must have completed the requisite pre-adoption steps in the US before the visa can be issued. This includes filing an Application for Advance Processing of Orphan Petition (Form I-600A), which determines the parents’ eligibility to adopt a child. Parents can wait until after they have located a specific child for adoption before filing this petition, but given the time it can take to process the application, complete the background checks and home study, it is best for parents to submit it as soon as possible.

Once the US embassy or consulate approves the visa application, then the parents or legal representative can travel with the child to the US.

Can foreign nationals graduating from US universities stay in the country to work?

In some instances, a graduating student from an academic program may receive the right to work for a limited period following the completion of the educational program. The H-1B temporary worker visa gives foreign nationals the ability to work in jobs that require a college degree.

H-1B workers perform specialty occupations, which include almost any job for which a university degree in the relevant field is needed for employment. Examples include:

Accountants
Architects
Attorneys
Computer programmers
Dentists
Engineers
Medical doctors and other medical workers
Other various business, technical and scientific occupations

Generally, the occupation follows logically from the educational program. Liberal arts degree-holders will find qualifying for the H-1B visa extremely difficult. However, many immigration lawyers specialize in issues faced by foreign students and may be able to help these graduates apply for the appropriate type of temporary work visa. It is important that applicants apply for the change in status as early as possible to avoid losing their immigration status. Those who fail to apply prior to their departure date must leave the country at that time, or face penalties for failing out of status.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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Are there special immigration rules for NAFTA countries?

As the North American Free Trade Agreement (NAFTA) liberalized trade among the three member states, it became necessary to loosen immigration restrictions among the countries in order to facilitate a freer commercial relationship. Annex 1603 to NAFTA directly addresses the status of businesspeople and professionals moving among NAFTA countries.

Generally, NAFTA countries agreed to allow temporary entry to businesspeople and professionals who do not pose health or national security risks. The fees charged for NAFTA business entrants must comprise the approximate cost of the services rendered, unlike other immigration fees. Businesspeople and professionals are admitted if they present:

proof of citizenship of a NAFTA country
documentation demonstrating and describing the business purpose of the visit
evidence that the proposed business activity is international and that the businessperson does not seek to enter the host state’s labor market

The annex bars NAFTA countries from using quotas, numerical restrictions, tests, prior approval, petitions, labor certifications and other techniques to discourage the easy movement of businesspeople engaged in NAFTA-based business pursuits.

The annex also allows traders and investors to enter under the same conditions in order to carry on trade, or to establish or administer the businessperson’s investments. Companies with locations in more than one NAFTA country may benefit from the annex’s intracompany transfer provisions, which allow managerial, executive and specialized workers temporary entry to work for affiliates, subsidiaries, parents and divisions of their companies located in another NAFTA country.

How can an immigrant lose his or her Green Card?

A Green Card, or Alien Registration Card, provides evidence of an alien’s status as a legal permanent resident in the US. The card serves as the main proof of a legal resident’s identity and also serves as evidence of the resident’s ability to work in the US.

Legal residents can lose their Green Cards several ways. If the legal resident violates US law, he or she may lose permanent resident status. This can include violations of immigration laws, such as helping others enter the country illegally or providing false documentation to receive immigration benefits. It also can include breaking US criminal laws, such as being convicted of a crime of moral turpitude or drug crime.

Legal residents also can lose their Green Cards if they remain outside of the US for extended periods of time. For example, if a legal resident remains outside of the US for longer than one year, he or she may lose permanent resident status. Filing for a re-entry permit can prevent this from happening.

Legal residents who accept an offer of employment in another country or take up a foreign residence may be found to have abandoned their status and will have to reapply for the appropriate type of immigrant visa to regain their status and its benefits.

Legal residents also must pay US taxes and file the appropriate type of returns. Failure to do so may indicate the resident has abandoned status.

Green Cards expire. To ensure their cards remain valid, legal residents should renew their cards every 10 years before the expiration date. If you have concerns that your travel plans or other activities may impair your immigration status, or you have been charged with a crime, contact an experienced immigration attorney today.

If the debtor is a renter rather than a homeowner, and if the debtor is current in his or her rent payments, it is unlikely that the lessor would even become aware of the bankruptcy proceeding. If the debtor is behind, however, he or she could be evicted. Even after the automatic stay is triggered by the bankruptcy filing, the landlord is likely to ask the court to lift the stay on its behalf, and the court is likely to grant that request.

What is conditional resident status?

Sometimes individuals are admitted to the US with conditional resident status. It is akin to a two-year probationary period before an individual can receive the privileges of full permanent resident status. Conditional resident status is applied to two groups of people:

Those who received their status through marriage to a US citizen where the marriage is less than two years old
Those who received their status through investment as an employment creation immigrant

The US Citizenship and Immigration Services (USCIS) will send a notice to each individual with conditional resident status that provides the requirements that must be met in order for the condition to be removed.

The individual should apply to have the condition removed within 90 days of the expiration of the two year term by filing a Petition to Remove the Conditions on Residence (Form I-751) with the appropriate USCIS office. If the individual does not meet the requirements to have the condition removed from his or her status or does not file the petition in time, the individual will fall out of status.

What is conditional resident status?

Those who received their status through marriage to a US citizen where the marriage is less than two years old
Those who received their status through investment as an employment creation immigrant

Learn More: Immigration Law

US immigration laws seek to balance the country’s desire to provide for free movement of ideas, culture, trade, investment and people with the need to protect American interests, jobs and security. An emphasis on security interests since 2001 has led to many important changes in US immigration law and policy, from the process of securing immigration visas to the procedures for entering the country to registration requirements for certain visitors, immigrants, students and others from foreign countries.

The core of US immigration law is the Immigration and Nationality Act (INA). This act has been updated and revised many times since its inception in 1952. The INA covers all aspects of US immigration law, including the eligibility requirements for nonimmigrant and immigrant visas, receiving legal permanent residence, sponsoring family members and employees for immigration, receiving refugee and asylum status and removing aliens from the country.

In 2002, the Department of Homeland Security (DHS) was created by the Homeland Security Act to oversee the implementation of US immigration laws and enforcement, among other duties related to securing the country. The Act also dismantled the Immigration and Nationality Service (INA) – the department formally in charge of enforcing US immigration laws – and replaced it with the US Citizenship and Immigration Services (USCIS). The USCIS is in charge of issues concerning visas, naturalization, citizenship, asylum and refugee processing, international adoptions, and changes and extensions of immigrant status. The USCIS is the main government body that foreign nationals entering the US on immigrant or nonimmigrant visas will have to deal with.

The Department of Homeland Security also is responsible for initiating removal proceedings against aliens who enter or attempt to enter the country illegally or who break US laws. Aliens subject to removal proceedings will go before an immigration judge, who will determine whether or not the alien should be deported, or if other forms of relief may be available.

Attorneys practicing in the field of immigration law may be available to help clients with a variety of issues, including:

Sponsoring employees for permanent residence
Filing labor certifications for permanent and/or temporary foreign workers with the US Department of Labor
Filing petitions for nonimmigrant workers
Sponsoring family members for permanent residents
Filing for derivative status for spouses and minor children
Seeking status under the Child Status Protection Act
Applying for refugee or asylum status
Defending against removal proceedings
Appealing immigration judge’s orders
Filing visa applications
Filing naturalization applications
Requesting conditions be removed from permanent residence status
Filing taxes for aliens, nonimmigrants, citizens with dual citizenship and others
Completing a foreign adoption

This is only a sampling of the types of issues immigration attorneys may be able to help their clients with. US immigration law is one of the more complex areas of American law. If you have an immigration-related matter that you need help with, you should contact an experienced immigration attorney. He or she can explain the law to you and help you understand your options.

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