Monday, August 15, 2011


On August 11, 2011, In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the Board of immigration Appeals ruled that until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien.

Considering that Notice to Appear is not always issued immediately, the statement made during interrogation can have unprecedented consequences.

Tuesday, March 29, 2011

Legal status Irrelevant for recovery under Fair Labor Standards Act

On March 28, 2011, NLJ reported an interesting ruling by Judge George A. O'Toole Jr. of the District of Massachusetts in Lin v. Chinatown Restaurant Corp. holding that illegal aliens can recover for unpaid wages under FLSA.

Thursday, March 24, 2011


The importance of obtaining United States Citizenship cannot be overemphasized. A naturalized U.S. Citizen has almost all the rights except to run for the President of America. A person holding a lawful permanent resident status (commonly referred to as “Green Card”) runs the risk of loosing status if they stay oversees for more than six months or are convicted of crime involving moral turpitude or aggravated felony. The crimes of moral turpitude and aggravated felony are more often subjectively decided and do not have set parameters. For instance a simple assault for pushing spouse can be considered as a crime involving moral turpitude in one state but not in the other. While no one intends to commit a crime but sometimes one can be a victim of crime and find one in removal proceedings.


Some of the benefits of obtaining U.S. Citizenship are:
• Right to obtain U.S. Passport;
• Right to stay oversees for any length of time without fear of loosing their legal permanent resident status;
• Only U.S. citizens have right to Vote and are able to hold elected public office;
• U.S. citizens are able to sponsor immediate relatives (spouses, unmarried minor children and parents) for Legal Permanent Resident status without a long wait for a visa to become available. Citizens may also sponsor these other relatives, subject to visa availability:
a. unmarried adult sons and daughters;
b. married sons and daughters; and,
c. brothers and sisters.
• Eligibility for many government-related jobs which often are restricted to citizens only;
• Citizens are always eligible for many government assistance and benefits programs, Social Security and Medicare benefits, which many non-citizens may not be.
• Adopted or Natural Children under 18 May be Naturalized automatically when a parent becomes citizen.
• A citizen cannot be removed or deported
• Exemption of estate taxes-The unlimited marital deduction which allows one to leave mostly everything to spouse without having to pay estate taxes does not apply to non-US citizens.


U.S. Citizenship can be obtained by i. birth in the U.S. or certain other places, ii. the citizenship of one or more parents or iii. Combination of location and parents’ citizenship and iv. by Naturalization. In this article, we will be only focusing on Naturalization. Now that we know benefits, we discuss the eligibility for Naturalization.
Generally a person can become a U.S. citizen if below criteria are met:
1. Be a lawful permanent U.S. resident;
2. Be 18 years of age or older;
3. Be a permanent resident for not less than five years. (If a person obtained permanent residence through marriage to a U.S. citizen, they may be eligible for naturalization in three years if the couple has been married for 3 years, if the spouse was a citizen during that entire period, and if the couple are still living in marital unity);
4. Have resided for at least three months in the state where the petition was filed;
5. Be physically present in the United States for at least one half of the five years (or one half of three if spouse is a citizen), with no absences longer than six months;
6. Have resided continuously within the United States from the date the petition was filed to the time of admission to citizenship;
7. Have been a person of good moral character for the five years of residence (or in the case of a souse of a USC three years, or person in the military one year);
8. Have an elementary level of reading and writing English. (Exceptions to this rule exist for persons over 50, in the US for 20 years or more as a permanent resident; and for persons over 55 , in the US for 15 years as a permanent resident); and
9. Have a basic knowledge of the fundamentals of U.S. government and history. (This requirement can be waived for people over 65 and have been permanent resident for 20 years.)
10. Persons who are physically or developmentally disabled or have a mental impairment are exempt from the English language and history and government requirements.
Please note than members of U.S. Armed forces do not necessarily have to be permanent resident and are an exception to the above listed general requirements.

Having detailed the importance and general criteria for naturalization, you must take extra caution if you admitted to certain crimes though you may not be convicted. Even though it may not be a conviction, the underlying admissions of facts may bar you not only from naturalization but can place you in removal. For instance theft crimes are considered as crime involving moral turpitude. Further during Naturalization process, your initial green card application is also scrutinized for plausible fraud.

All applications for Naturalization are submitted on USCIS form N-400 along with supporting documentation establishing eligibility, fees and photographs.

Dual Citizenship:

The concept of dual citizenship means having nationality of two countries at the same time. Each country has its own citizenship laws based on its own policy and must be looked at simultaneously.
Dual Nationality is permitted though not encouraged by United States if:
i. A foreign state does not divest its citizens of their citizenship upon naturalization in foreign country i.e. upon their naturalization in U.S;
ii. Naturalization of U.S. Citizen in a foreign country that does not require U.S. Citizen to renounce his or her U.S. Citizenship;
iii. Birth in United States to foreign nationals of countries that follow the principle of jus sanguinis.

Friday, March 18, 2011

USCIS Reminds Japanese Nationals Impacted by Recent Disaster

Released by USCIS: March 17, 2011

WASHINGTON—In light of the recent earthquakes and tsunami in Japan, U.S. Citizenship and Immigration Services (USCIS) reminds Japanese nationals of certain U.S. immigration benefits available upon request.

USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status. Temporary relief measures available to eligible nationals of Japan may include:

The grant of an application for change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
Re-parole of individuals granted parole by USCIS;
Extension of certain grants of advance parole, and expedited processing of advance parole requests;
Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
Expedited employment authorization where appropriate; and
Assistance to LPRs stranded overseas without immigration documents such as Green Cards. USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.
Visitors traveling under the Visa Waiver Program may visit a USCIS local office for assistance. Japanese nationals who are at a U.S. airport may contact the U.S. Customs and Border Protection office there.
For more information on USCIS humanitarian programs, visit or call the National Customer Service Center at 1-800-375-5283.

Friday, February 4, 2011


In general, an alien’s conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.C. § 1227(a)(2)(A)(i) (2006), only if the alien committed the crime within 5 years after the date of the admission. The date of admission is very critical as the 5 year clock starts from that date. The date of admission has been contentious. Is it the date of entry, date of adjustment of status or the date of any subsequent change of status?

Yesterday, February 3, 2011, in Matter of Alyazji, Int. Dec. 3703, 25 I&N Dec. 397 (BIA 2011) overruled in part the Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) and limited admission to the date pursuant to which the alien was in United Sates (entry after inspection) when the crime was committed. This initial date remained the date of admission even if the alien later adjusted status to that of lawful permanent resident. However, it limited this definition of “admission” to 237(a) (2) (A) (i) cases only. In other cases, definition of “Admission” remains an open ended question. In the case of Matter of Alyazji, respondent committed crime involving moral turpitude in 2007, had entered as non immigrant in 2001, and had adjusted status in 2006. The BIA terminated removal and held that 5 years are counted from 2001 and not 2006.

Friday, January 28, 2011

Legal Weblog: USCIS Reaches H-1B Cap

Legal Weblog: USCIS Reaches H-1B Cap: "U.S. Citizenship and Immigration Services (USCIS) announced on Jan 27, 2011 that it has received a sufficient number of H-1B petitions to re..."

USCIS Reaches H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on Jan 27, 2011 that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 (October 1, 2010-Sept 30, 2011) that arrive after Jan. 26, 2011. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

Earlier in December, USCIS announced receiving more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:
- extend the amount of time a current H-1B worker may remain in the U.S.;
- change the terms of employment for current H-1B workers;
- allow current H-1B workers to change employers; and
- allow current H-1B workers to work concurrently in a second H-1B position.
Source: USCIS

Wednesday, January 12, 2011


Legal Weblog: REVISED HANDBOOK FOR I-9 COMPLIANCE: "USCIS has revised and released a new handbook on instructions for completing I-9 form. The new handbook (M-274) should be read and re-read b..."

Saturday, January 1, 2011

I-9 Compliance: What Every Employers Needs to be wary of!

We all hear about increased enforcement of immigration laws but are under the impression that one need only worry about immigration laws if one employs aliens. This is a MYTH. In September 2010, Abercombie & Fitch was fined $1,047,110.00 for their technology related deficiencies in I-9 verification system. It’s not just about hiring unauthorized employees/workers knowingly or unknowingly but proper identification, completion, re-verification and retention of I-9 forms for all employees is imperative. I-9 compliance is required for every employee Citizen or non-citizen.

So what is I-9 and what steps must employer take to comply with I-9?
I-9 is a one page form[1] divided into three sections requiring employee to show work authorization and identity and employer to verify the same.

Section 1 should be completed and signed by new employee no later than the first day of employment, regardless of his or her immigration status.
Section 2 of I-9 form must be completed by Employers signed and dated within 3 business days of the employee’s first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment. Employer must physically examine the documents. If an employee is unable to present required document(s) within 3 business days, the employee must produce a receipt showing that he/she has applied for the replacement document. In addition, the employee must present the actual document within 90 days of the hire AND the employee must have indicated that he/she is already eligible to be employed in the United States by checking the appropriate box in Section 1.
Section 3 of I-9 form must be periodically updated and re-verified by employer for employees who are not permanently authorized to work in United States.

There are three lists of documents:
List A[2] documents establish both identity and authorization to work in the United States. The applicant may show any one of these documents to complete the I-9 Form. If the applicant does not provide one of the documents specified in List A, the person may show a document described in List B and a document described in List C.
List B[3] documents only establish identity.
List C[4] documents only establish employment eligibility, meaning the person is authorized to work in the United States.
If the employee cannot produce the required documents within the requisite time that employee should be terminated immediately.

Retention Period
Employers must fill out and keep a Form I-9 for every employee hired on or after November 6, 1986. Employers must do an I-9 form for every employee, and not just non-citizens. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

I-9 compliance is not required for below employees:
i. Hired before November 7, 1986, who are continu­ing in their employment and have a reasonable expectation of employment at all times;
ii. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
iii. Independent contractors; or
iv. Providing labor to you who are employed by a con­tractor providing contract services;
v. Not physically working on U.S.soil.

The Law provides for penalties from $100 to $1,000 for each incorrect or missing I-9. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. The employer is required to verify documents for both identity and authorization to work in the United States. Persons or entities who are convicted of having engaged in a pattern or practice of knowingly hiring unauthor­ized aliens (or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) after November 6, 1986, may face fines of up to $3,000 per employee and/or 6 months imprison­ment. Persons who use fraudulent identification or employ­ment authorization documents or documents that were lawfully issued to another person, or who make a false statement or attestation to satisfy the employment eligi­bility verification requirements, may be fined, or impris­oned for up to 5 years, or both.

The violations can be by hiring unauthorized workers, paperwork violations of I-9, lack of verification of documents presented, asking more documents than necessary which can lead to discrimination lawsuits. Proper completion of I-9 forms is one of the best ways to avoid legal penalties.

Federal contractors and subcontractors are required to use E-Verify as of September 8, 2009. E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only. The law also obliges U.S. employers not to discriminate against individuals on the basis of national origin or citizenship, or require different documents from an individual. Thus it is imperative to comply with I-9 after making a decision to hire and not to request different or more documents than is necessary to avoid claims of discrimination and document abuse.

Let’s begin this year by proper compliance of I-9 forms and emplacing a mechanism of internal self-audits of I-9 forms to avoid unwanted fines later.

[1] I-9 form can be downloaded from-
[2] List A Documents
1. U.S. Passport (unexpired or expired) 2. Certificate of U.S. Citizenship (INS Form N-560 or N-561) 3. Certificate of Naturalization (INS Form N-550 or N-570) 4. Unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization 5. Alien Registration Receipt Card with photograph (INS Form I-151 or I-551) 6. Unexpired Temporary Resident Card (INS Form I-688) 7. Unexpired Employment Authorization Card (INS Form I-688A) 8. Unexpired Reentry Permit (INS Form I-327) 9. Unexpired Refugee Travel Document (INS Form I-571) 10. Unexpired Employment Authorization Document issued by the INS which contains a photograph (INS Form I-688B)

[3] List B Documents
These documents establish identity. Unless the person has provided a document from List A (above), the applicant must show a document in both List B and List C to complete the I-9 Form.
1. Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address;2. ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address; 3. School ID card with a photograph; 4. Voter's registration card; 5. U.S. Military card or draft record; 6. Military dependent's ID card; 7. U.S. Coast Guard Merchant Mariner Card;
8. Native American tribal document; 9. Driver's license issued by a Canadian government authority.
For persons under age 18 who are unable to present a document listed above: 10. School record or report card 11. Clinic, doctor, or hospital record 12. Day-care or nursery school record .
[4] List C Documents
These documents establish employment eligibility.
1. U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment) 2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350) 3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal 4. Native American tribal document 5. U.S. Citizen ID Card (INS Form I-197) 6. ID Card for use of Resident Citizen in the United States (INS Form I-179) 7. Unexpired employment authorization document issued by the INS (other than those listed under List A)