Category Archives: Working in the U.S.

Spreading the Word: California DACA Recipients Eligible for Medi-Cal

stethoscopeThe original report on this looked rather academic: In February of 2014, the UC Berkeley Labor Center issued its “REALIZING THE DREAM FOR CALIFORNIANS ELIGIBLE FOR DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA): DEMOGRAPHICS AND HEALTH COVERAGE.”

The implications, however, are huge for undocumented Californians with DACA (Deferred Action for Childhood Arrivals) status. If their incomes are below $15,850, they may qualify for the state’s Medicaid program, known as Medi-Cal. (Most other U.S. states do NOT offer similar health coverage to DACA recipients.)

Unfortunately, very few DACA recipients know about, or have been willing to actually take the next step and sign up for this program. The report estimated that up to 125,000 immigrants might be thus eligible.

And just to be clear, this eligibility isn’t merely theoretical. People are signing up for Medi-Cal based on their DACA status. For example, the L.A. Times described “Mayra Yoana Jaimes Pena, 25, [who] was granted DACA-status last year, and signed up for Medi-Cal this month.” Organizations such as OneLA are busy trying to spread the word.

Of course, even further under the radar are the many people who haven’t signed up for DACA, yet are eligible. It’s not too late! For information on eligibility and the application process, see the “Deferred Action for Childhood Arrivals (DACA)” page of Nolo’s website.

Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?

After years of exploring immigration law’s darkest corners, I can say with some certainty that:

  1. throwing eggs at your neighbor’s house is not on the list of grounds of deportability, and
  2. nor is being the subject of a petition to the White House alleging that you have “wrongly represented” the U.S. “in the world of pop culture.”

I hope that’s of some comfort to Justin Bieber fans.

eggbrokenIf you’re unfamiliar with the hoopla, CNN did a fine job of outlining both what Canadian-born pop singer Justin Bieber is currently suspected of (felony vandalism, so far, based on the egg-throwing incident; with possible charges for driving while under the influence of drugs, though it’s not clear that he was doing the driving). See CNN’s “Could Justin Bieber be deported?” and “Justin Bieber egg probe ‘tightening up’; prosecutor wants more investigation.”

The CNN articles also discuss what these accusations might mean for Bieber’s immigration status. He’s apparently in the U.S. on an O visa, for people with “extraordinary ability in the sciences, arts, education, business, or athletics.”

People who are legally in the U.S., like Bieber, can be deported for committing a crime that’s listed on the grounds of deportability within U.S. immigration law. (Juvenile crimes are sometimes an exception, but contrary to appearances, the Biebs is already 19.)

Nothing Bieber is alleged to have done so far seems to make experienced immigration attorneys think he fits either of the main two criminal grounds of deportability, namely a “crime of moral turpitude” (one that shocks the public conscience) or an “aggravated felony (which doesn’t have to have “felony” in the name, but can include various types of misdemeanors).

Bieber could, however, face removal proceedings if he has drug issues. The immigration law contains two separate grounds of deportability for drug use: one that makes people deportable if they’ve been convicted of a drug crime (or an attempt), with an exception for a single offense involving possession for personal use of 30 grams or less of marijuana; and another for being a drug abuser or addict.

Notice that no actual court conviction is needed to be deportable under the drug abuse/addict section. The person’s own confession to drug use could be enough. Bieber appears to have already told the police who pulled him over in a traffic stop that he’d been drinking, using marijuana, and taking prescription pills. (Oops. It’s never a good idea to drink so much that you get into a confessional mood like that.)

Of course, one could face worse fates than being deported to Canada. But, depending how all this plays out, Bieber could face a bar on returning to the U.S. for a long time after deportation — long enough to lose those baby cheeks.

P.S. Should we be shocked or impressed that he poses for a mugshot like it’s just another publicity still?

How Much SHOULD a Diplomat’s Maid Be Paid?

illegal contractIf you’ve been following the headlines about the deputy consul general from India, Devyani Khobragade, whose arrest in New York over having submitted false documents to the U.S. government regarding the amount she was paying her housekeeper is sparking an international incident, you may have wondered: How much SHOULD she, by law, have been paying her maid?

If all that went by too fast, here’s a little more background: The deputy consul came to the U.S. on a diplomatic visa called an A-1. This visa allows its holders to bring along domestic staff from their home country — on the condition that they pay them the higher of:

  • the prevailing wage in that region, or
  • the federal or state minimum wage.

(Read more about this visa on the State Department’s page describing “Visas for Diplomats and Foreign Government Officials.”)

Ms. Khobragade brought a housekeeper along, and despite her apparent promises to the U.S. government that she would pay her housekeeper $4,500 a month, allegedly paid her a mere $573 a month, for work far in excess of 40 hours per week.

So, back to the original question regarding appropriate payment. For starters, the deputy consul obviously should have paid the amount promised in the visa application on behalf of the housekeeper, namely $4,500 a month. Making false statements on U.S. immigration applications is grounds for becoming inadmissible, that is, unable to receive future U.S. visas or immigration benefits.

As for the minimum the deputy consul should have offered, one must determine this by going to the Department of Labor’s “Foreign Labor Certification Data Center” website. For the New York Metro area, and the position of “Maids and Housekeeping Cleaners,” my search came up with a minimum figure of $10.32 per hour or $21,466 a year, which works out to $1,789 per month. Since that figure is higher than the federal minimum wage of $7.25 per hour, that’s what the housekeeper likely should have received at the very least — less than the amount originally promised, but far more than the amount apparently paid!

Obviously there are major questions about the way this case was handled, with an arrest outside the deputy consul’s daughter’s school, and alleged strip searches (looking for what?! the missing wages?). But setting that aside, should the deputy consul be allowed to claim diplomatic immunity to avoid meeting basic (and not overly generous) U.S. immigration and labor laws?

According to journalist Sandip Roy, India’s diplomats have a history of flouting U.S. labor laws. Roy concludes, “As consular staff member representing India abroad, Ms Khobragade enjoys many rights. The right to a domestic help at cut-rate wages however is not one of them.”

California Lawmakers Take Practical Approach to Treatment of Undocumented Immigrants

sanjoseAn estimated two-million plus undocumented immigrants live, work, study, and otherwise make their home in California.

So perhaps it’s fitting that the California legislature recently passed a number of bills (subsequently signed by Governor Jerry Brown) that seem designed to make sure that, as long as they’re here, the undocumented are not treated in ways that are either grossly unfair or lead to unfortunate or dangerous unintended consequences.

Here’s a brief summary of the new laws (click the links for details):

  • AB 4, which forbids law enforcement officials from detaining noncitizens beyond their release date on the basis of a U.S. Immigration and Customs Enforcement (ICE) hold, unless the person has actually been convicted of one of various crimes or meets certain specified conditions. (This seems designed to put a stop to the expense and absurdity of local law enforcement agencies serving as detention units for the federal government by holding undocumented immigrants even if the criminal charges against them were dismissed or were minor in nature.)
  • AB 35, which says that no one can charge fees for serving people applying for the immigration program known as “Deferred Action for Childhood Arrivals” (or DACA) unless they are either immigration consultants, attorneys, notaries public, or organizations that have received accreditation from the U.S. Board of Immigration Appeals (B.I.A.); and even those who have received such accreditation cannot engage in price gouging.
  • AB 60, which makes undocumented California residents eligible for a drivers’ license upon providing satisfactory proof of identity and state residency. The license will contain a notation stating that it “does not establish eligibility for employment, voter registration, or public benefits,” and will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers’ License).
  • AB 524, which specifies that threatening to report the immigration status or suspected immigration status of an person or family may be considered an inducement of fear sufficient to constitute extortion, and thus punishable under the California Penal Code.
  • AB 1024, which allows undocumented persons to be admitted to the California State Bar Association as attorneys, and therefore to practice law in this state.
  • AB 1159, which attempts to crack down on the practice of immigration law without a license, by imposing financial penalties on people who pose as attorneys, in particular by calling themselves “notarios” or other terms which have a more elevated meaning in other countries. The law specifies that the proceeds shall be used to help people damaged by such con artists, as well as to provide free legal advice concerning federal immigration reform.
  • SB 141, which requires community colleges and universities within the California state system to charge in-state, resident tuition to U.S. citizens who live in a foreign country because their parent or guardian was deported or voluntarily departed from the U. S., so long as they will be entering in their first year as matriculated students, can demonstrate financial need, lived in California immediately before moving abroad, attended a secondary school in California for at least three years, and intend to establish residency in California.
  • SB 150, which authorizes community college districts to charge only in-state, resident tuition to certain special part-time students, namely high schoolers who would benefit from advanced scholastic or vocational work, if they are non-citizens in financial need, or students from other states who had to move due to Hurricane Katrina.
  • SB 666, which creates criminal and civil penalties for attorneys and businesses that retaliate against employees and others on the basis of citizenship and immigration status or who report or threaten to report the suspected immigration status of a witness or party to a lawsuit because the person exercises a right related to employment.

In related news, San Francisco’s Board of Supervisors recently passed an ordinance prohibiting law enforcement officials from holding for deportation noncitizens who have not been convicted of felonies or deemed public safety risks. (It’s called the “Due Process Ordinance for All on Civil Immigration Detainers.”) Mayor Lee is expected to sign it.

Green Card Holder Forever?

usil-blog.jpgSome U.S. immigrants literally count the days from when they receive their green cards, waiting for the five (or in some cases, three) years to pass before they can apply for naturalized U.S. citizenship. And given all the benefits that come with U.S. citizenship — easier travel in and out of the U.S., ability to sponsor a wider group of family members for a green card, access to government jobs, and so on — this is widely assumed to be the sensible approach for anyone planning to live permanently in the United States.

As pointed out in a recent article in The New York Times, however, called “Making Choice to Halt at Door of Citizenship” (by Kirk Semple), that’s not how many immigrants see the matter. Many are content with a green card alone — even if they fully qualify for citizenship and would be permitted dual citizenship in their home country — for reasons that include:

  • national identity — they want to retain a tie to their home country and don’t necessarily “feel” American
  • trauma — the process of dealing with U.S. government officials the first time around is more than they want to face again (don’t laugh, it can be a hellishly difficult bureaucracy to deal with)
  • the $680 application fee
  • the perception that they already have nearly all the same rights as U.S. citizens, including the right to work in the U.S.
  • dissatisfaction with U.S. government or its foreign policy
  • the “cool” factor — a U.S. passport seems less glamorous than it once did, and finally
  • inertia — they just haven’t gotten around to applying.

This is, of course, a personal decision, and nothing in the law requires green card holders to apply for U.S. citizenship. For the people dealing with “inertia,” however, I offer just one phrase: “Change of address requirement.”

If you’re having trouble getting it together to apply for U.S. citizenship, might you also fail to do as required — or have you already failed in this required task — and advise the U.S. government within ten days of every time you move to a new address? It sounds trivial, but messing this one up is a deportable offense. For real. See the articles on the “After Getting Your Green Card: How to Keep It” page of Nolo’s website for details.

Me, I’d pay the fee, deal with the symbolic significance, and lower my cool factor just to know I couldn’t be deported on grounds as seemingly minor as these. (And the change of address notice is just one item on the list of grounds of deportability . . . . )

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.

Are You “Extraordinary” Enough for an EB-1A Green Card?

turbanEveryone likes to think they’re something special.

But could you prove to the satisfaction of a U.S. immigration official that your abilities in the sciences, arts, education, business, or athletics, are so extraordinary that they’ve been publicly recognized, and resulted in a period of sustained national or international acclaim?

The payoff is big. Noncitizens of the U.S. who can prove this may qualify for a green card as a priority worker (EB-1A), which doesn’t even require an employer to petition for (sponsor) you.

Just satisfying the documentation requirements calls for extraordinary persistence and patience, however. Applicants need to come up with items like proof of box office success or high salary, letters of recommendation from professional peers, articles about their work published in the media or professional journals, evidence that they’ve been invited to judge others’ work, scholarly articles that they’ve written, and all-around proof that they’ve made original, unique contributions to their field.

Who actually succeeds at this? A mere two-thirds of the people who apply, unfortunately. NBC News gives us a picture of some of the successful applicants in its recent article, “To get green cards, these immigrants must prove they are extraordinary.” Naturally, NBC tried to profile some colorful characters, including a Harvard-trained scientist from India whose research into stem cells could lead to disease cures and a vintage-style burlesque performer from Canada whose “unique contributions” have helped turn this type of dance (in her description, somewhere between ballet and a striptease) into an art form.

Before you buy heels and feathers and sign up for dance classes, however, realize that “burlesque performer” is practically unheard of as a path to success in the EB-1 category. In fact, the fact that this applicant was approved is doubly impressive when you realize that the immigration service centers refuse to view or listen to electronic materials such as CDs or videos, and aren’t allowed to check websites such as YouTube. (It’s against their policy, according to an AILA/SCOPS Teleconference of March 27, 2013). I’m sure they didn’t even peek at her videos.

DACA Applicants Getting Creative With Proving Presence in the U.S.

favoritesIt’s not always easy to prove your location for a particular period of time, much less where you were on a particular day. But those are exactly the challenges faced by young people applying for a work permit and temporary permission to remain in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program.

To be DACA-eligible, they need to prove two types of presence in the United States:

  • continuous residence since June 15, 2007 up to one’s DACA application date (excluding brief, casual, and innocent departures), and
  • physical presence in the U.S. on June 15, 2012, and also at the time of applying for deferred action.

The standard advice from lawyers like me is to come up with things like school, employment, and dental records. But trust the younger, Internet savvy applicants to come up with more creative forms of evidence, such as:

  • Facebook check-ins
  • Tweets
  • Traffic and speeding tickets
  • Netflix records, and
  • Restaurant receipts.

The good news is, U.S. Citizenship and Immigration Services (USCIS) seems to be just fine with considering these unusual forms of proof. It’s all detailed in this article from ABC News: “Unusual DACA Documentation Includes Speeding Tickets, Netflix, and Facebook.”

For more information on DACA eligibility and application requirements, see the “Deferred Action for Childhood Arrivals (DACA)” section of Nolo’s website.

Countdown to Filing Time for New H-1Bs!

traffic_lightEvery year, U.S. Citizenship and Immigration Services (USCIS) opens up the filing period during which employers can submit petitions for new H-1B workers . . . and every year, the window of opportunity closes very soon after. This year, USCIS will begin accepting petitions for workers who are subject to the fiscal year (FY) 2014 cap on Monday, April 1, 2013.

The reason this timing is so important is that only  65,000 new H-1B visas (or status changes) can be given out per year, unless the worker falls into an exempt category. And of those 65,000, up to 6,800 are set aside for H-1B applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

The most important exemption from this cap applies to the first 20,000 H-1B petitions filed for workers who have U.S. master’s degree or higher. Other widely used exemptions are available to H-1B applicants who will work at either institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

Even with the exemptions, there is stiff competition for those 65,000 spots — more demand than supply. In fact, USCIS expects to receive more than 65,000 petitions within less than a week, by April 5, 2013. The agency will notify the public as soon as it has received 65,000 petitions subject to the cap, and reject petitions submitted afterward. For any petitions that come in over the 65,000 but before USCIS’s announcement cutting off filings, USCIS plans to use a lottery system to select which ones will be processed.

USCIS is also making a temporary change to its premium processing service. Petitioners may still request premium processing, but they won’t receive a USCIS decision within the normal 15-day period. Instead, USCIS will begin counting the 15-day promised speedy processing period starting on April 15.

One of the most important topics to consider if you are hoping to petition for or get a job as an H-1B worker is whether the cap will be an issue, or whether some exemption or alternative is available. For details on this, see Nolo’s article, “When the H-1Bs Run Out: Alternative Visas and Strategies.”

And for the USCIS press release on this topic and other information on H-1B visas, see http://www.uscis.gov/h-1b_count.

Mandatory E-Verify: Would It Be So Bad?

IDsWith various bills in Congress aimed at making E-Verify — the system by which U.S. businesses can double check the validity of employees’ work-authorizing documentation — mandatory for all employers, a controversy has begun about what this will mean in terms of bureaucracy, costs, and civil rights.

In a February 7, 2013 Wall Street Journal article, for instance, Laura Murphy of the ACLU’s Washington Legislative Office and Fred L. Smith, chairman of the Competitive Enterprise Institute, argue that the program will result in unfair job losses and burdens on employers.

But as often happens in the U.S. media, the controversy is quickly becoming muddled with mistakes and hysteria. Before you form your own opinion, consider these key legal facts:

  •  E-Verify is a new method for enforcing an old law. In and of itself, there’s nothing either sinister nor exciting and different about employers being asked to check the documents of every employee. They’ve long been required to do that, in order to make sure that new hires are either U.S. citizens, permanent residents, nonimmigrants with a visa allowing work, or have a work permit in connection with some other immigration status. That process is often harder than it sounds, given the many types of potential documents, from different years and sources, that an employer must examine. E-Verify gives employers a new way to check whether the person is on record with the U.S. government as being who they say they are.
  • The E-Verify database isn’t new. The system is already voluntary for employers in some states, and mandatory in other U.S. states. Making it mandatory nationwide will not change the fact that, as squeamish as this might make us feel, the U.S. government is amassing information on every working person in this country.
  • Employers may NOT fire employees whose status in E-Verify is still being contested. As described by attorney Nicole Kersey in the article “What Employers Should Do After E-Verify Issues a Tentative Nonconfirmation for an Employee,” the first thing that happens when an employee’s data doesn’t match up with that in the E-Verify system is that the employer will get a nonconfirmation notice, and the employee will have an opportunity to provide further information or contest the nonconfirmation. Contrary to what was stated in the WSJ article, an employee who contests is protected from termination until E-Verify issues a “Final Nonconfirmation.”
  • Some employers voluntarily choose E-Verify. Although it’s not a slam dunk, some employers find that they like the certainty of being able to check the E-Verify system, and the ability it gives them to develop a track record of compliance with U.S. immigration laws. See “Should Employers Sign Up for E-Verify?” for more about the pros and cons.

E-Verify isn’t perfect, of course. While the information in the database is getting better year by year, mistakes can happen. There are reasons for employers to avoid this system and for employees to worry about it. But let’s make this legislative decision calmly, without misrepresenting the law or the situation that already exists.