9 PREGUNTAS MAS RELEVANTES DE DAPA Y LAS RESPUESTAS QUE CONOCEMOS HASTA AHORA

1.     No estoy casado con mi pareja, pero tuvimos hijos en conjunto.   Puedo aplicar?
Si. No tiene que estar casado para calificar a DAPA. El único caso en que puede haber inconveniente es si el nombre del padre no aparece en el certificado de nacimiento porque los padres no estaban casados. En este caso lo que simplemente debe hacer es corregir el certificado de nacimiento en el condado donde el niño nació y reflejar el nombre del padre en el certificado. Si la madre no estuviese de acuerdo, un test de DNA sería necesario. 
2.     No tengo hijos propios pero mi esposa tiene hijos que hemos criado en conjunto. Yo califico?
Si. Siempre y cuando estuviesen casados antes que los niños cumplieran 18 anos. Inmigración los considera sus hijos para el caso de las aplicaciones de inmigración. Si actualmente usted no está legalmente casado, no se pueden considerar a estos niños como propios.     

3.     Yo fui deportado antes del 2010, pero me devolví a los Estados Unidos después de que me deportaron. Aun califico?
Si. Siempre y cuando usted no fuera deportado o estuviera ausente de los Estados  Unidos después de enero 1, 2014. Las deportaciones pasadas no afectan la elegibilidad de la persona para el DACA.

4.     Mi hijo tiene DACA pero yo no tengo hijos que son ciudadanos o residentes permanentes. Aun puedo aplicar?
No. Desafortunadamente no puede aplicar. DAPA solo da la autorización de trabajo a los padres de ciudadanos norteamericanos y residentes permanentes. El presidente escogió no incluir a los padres de los hijos DACA en el programa de DAPA.   

5.     Yo fui arrestado y condenado por DUI 10 hace diez (10) anos. Aun soy elegible para DAPA?
Todavía no tenemos una respuesta solida a esta pregunta. Hay rumores de que inmigración le dará el DAPA a la gente que fue encontrada culpable hace mas de 5-7 años atrás. Sin embargo, existen otros rumores que dicen que con solo un (1) DUI seria descalificado. Tendremos que esperar y ver la dirección que inmigración tomara en este aspecto en los próximos meses. 

6.      Podría calificar así no haya reportado los impuestos durante el tiempo en que he trabajado en los Estados Unidos?
Hasta ahora no existe un requisito que diga que usted debe haber pagado o reportado sus impuestos.  Esto puede cambiar, pero si este es el caso usted probablemente debe pagar los impuestos desde el 2010 hasta la fecha. Lo que nosotros estamos seguros en asumir es que si usted recibió el DAPA por tres anos, y usted quiere renovar el permiso de trabajo, lo más seguro es que a usted le exijan que muestre el reporte de los impuestos de los anos que trabajo con el permiso de trabajo de DAPA.  

7.     Que pasa después de que Obama deje la presidencia? El programa se terminaría?
No tenemos la manera de saber con certeza que pasaría una vez Obama deje la presidencia. Lo más seguro es que esto dependerá de dos factores: Si una reforma de inmigración integral pasa en el 2015, y si un republicano o demócrata es elegido presidente. Si una reforma integral pasa el próximo ano, DAPA no importaría mucho puesto que la gente tendría algo aun mucho mejor por aplicar. Si la reforma integral no pasa y un republicano es elegido, el próximo presidente cancelaria el DAPA. Si embargo, aun así inmigración no tiene manera de conseguir 4,000,000 de personas y deportarlas, pero por lo menos usted tendrá permiso de trabajo por dos años.

8.     Puedo dejar los Estados Unidos una vez mi aplicación de DAPA sea aprobada?
Si. Usted puede aplicar por una autorización de viaje y en la mayoría de los casos retornar a su país de origen.

9.     Yo tengo cinco (5) condenas por manejar sin licencia. Estas condenas me impedirán calificar para el DAPA?
No. Si usted tiene condenas por ofensas de tráfico como manejar sin licencia, estas condenas no lo descalificaran para el DAPA. 

Notificaremos a todos nuestros clientes y amigos de cualquier cambio de estas preguntas, y, por supuesto, los detalles del program cuando son anunciados!


The Form I-9: A Little Document with Big Consequences


Employers are required to verify the identity and employment authorization of individuals hired for employment in the United States.  This is done by the employer and employee completing a Form I-9.  In fact, we have probably all had to fill out a Form I-9 at one point or another in our careers.  Likely, we did not pay much attention to the document and simply viewed it as another small paperwork hassle.

However, there can be big problems for employers who take this attitude as an incorrectly completed Form I-9 can lead to substantial penalties.  Many employers mistakenly believe that penalties are only assessed to employers who hire undocumented workers and so they do not take the time to make sure the I-9 is completely and correct filled out.  They are often shocked to discover that fines can be assessed regardless of whether or not the employee is legally able to work in the United States.   

For example, ICE recently fined a small New York company several thousand dollars because the company did not fill out Form I-9’s within three days of hiring some of its employees.  All of the employees were authorized to work in the United States legally. The company was further fined because some of the Form I-9’s had not been fully completed.  Again, all of the employees were legally authorized to work in the United States; the employer simply skipped over some required fields in the form.

In short, the Form I-9 is a little document that can have some very big consequences.  Employers need to ensure that their human resource departments are adequately prepared and trained in how to correctly complete the Form as an incorrectly completed Form I-9 is a large liability despite the fact that the employee may be authorized to work in the United States.

 

5 Reasons Why You Shouldn't Wait Another Moment to Become a U.S. Citizen

President Obama, in his recent Executive Action on Immigration, made the naturalization of the more than 8 million legal permanent residents in the United States a priority. The President is currently promoting naturalization, possibly letting applicants pay with a credit card, and may consider a fee waiver. The time to naturalize is now.

Legal permanent residents, also known as residents or green card holders, may apply to naturalize, or become a citizen after 5 years of being a permanent resident (or 3 years if received got your green card through a U.S. citizen spouse). You can file your application 90 days before your 5 (or 3) years are complete.

You should begin this process as soon as you are eligible, and here's why:

1. Immigration authorities can almost never deport you once you are a citizen.

Once you become a citizen of the United States, immigration authorities cannot deport you under any circumstances unless they denaturalize you. Immigration can only denaturalize you if you lied or committed fraud on your naturalization or green card application. This means that no matter what happens in your future, no matter what mistakes you make, you cannot be sent back to your home country unless your green card or naturalization applications were fraudulent.
Remember the brothers who bombed the Boston Marathon? They were naturalized citizens, meaning they were not born U.S. citizens. The surviving brother, regardless of what crimes he is convicted of, cannot be deported due to his U.S. citizenship. Immigration simply cannot do it. While you should never violate laws of the United States just because you are a citizen, if you do make a mistake, citizenship will stop you from being deported at the end of your punishment. 

2. Immigration authorities will be able to deport you from the United States if you are not a citizen, no matter how long you've been a green card holder or how long you've been in the United States.

If you are not a citizen, regardless of favorable considerations in your case, immigration will always have jurisdiction over you and the authority to deport you depending on your actions. And even if you do not commit any intentional crimes, accidents do happen. What if you are not a citizen, get distracted while driving, get into an accident, and kill someone? Depending on how you are charged criminally, there will always be a possibility you could be deported as a result of this accident. Neither extensive residency in the U.S. nor your good character before any accident or crime can guarantee you won't be deported.

3. You do not have to relinquish other citizenships to gain U.S. citizenship.

Contrary to some popular belief, the U.S. does not absolutely require you to relinquish all previous citizenship before naturalizing. While there are a very few exceptions and your case might be different if you hold a position of nobility in another country, the U.S. will let you retain your other citizenships when you naturalize. 

4. You can travel outside the U.S. with much more freedom as a citizen than as a green card holder.

Many green card holders do not know that they do not have complete freedom to travel outside the United States with a green card. If you travel abroad for more than 6 months at a time, you could be denied re-entry when you come back to the United States. And this rule applies no matter how long you have been a resident. With U.S. citizenship, you are able to travel outside the United States without time restrictions.  

5. You can apply for green cards for your family members much faster as a citizen than as a resident.

While the area of law governing whether you can give lawful status to your family is extremely complicated, in almost every case, your spouse, parent, or child can get a green card through you MUCH more quickly when you are a citizen instead of a resident. The process to apply for your family will be a year to several years shorter if you are a citizen. So if you're not naturalizing for yourself, do it for your family!

Overall there are very few reasons not to naturalize once you are eligible, so start the process now!

Posted by:   Anna Erwin, Esq.  Associate Attorney

aerwin@immigration.net

It's Time to Prepare to File the H-1B Visa--Lottery Starts on April 1, 2015

Its remarkable how fast the April 1, 2015 H-1B filing deadline has arrived this year!  We want to remind all employers that if you are considering hiring a foreign national this year, you must begin the H-1B petition process now, to have it ready on April 1.  There appears to be little, if any chance that Congress will act on immigration reform this year, including a much needed increase in the H-1B cap. We also expect a record number of applications this year, given the expanding economy and lagging US educational system. As soon as possible, we encourage you to identify any employees who may require H-1B sponsorship. This year we again expect the cap to be reached as early as the first week of April. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2016.

In addition to the 65,000 H-1B cap-subject H-1B visas, there are an additional 20,000 visas available for individuals who have earned a master’s degree or higher from an accredited U.S. educational institution. We expect that Master’s degree H-1B visas to also be exhausted in the first week of application (USCIS is required to hold the application period open for 5 business days before closing it to new application, before conducting its “lottery” for H-1B visas).  We advise employers to make H-1B sponsorship decisions within the next few weeks. It is important to prepare H-1B petitions as early as possible and well before April 1 so that a complete petition can be submitted to USCIS on the first day that the quota opens.

We will work with you to file H-1B petitions right up until April 1, and afterward, for as long as H-1B visas are available. We strongly advise clients to finalize their H-1B petition decisions by February 1, 2015. Each petition requires certification by the Department of Labor (DOL) of a Labor Condition Application (LCA). DOL regulations allow for up to seven working days to certify an LCA. And, given this years demand, we expect DOL to take the maximum period allowed. 

We also encourage employers of H-1B visa holders to ensure that they are complying with all relevant H-1B and DOL regulations pertaining to work sites and Labor Condition Applications, and to conduct an audit of the H-1B Public Access Folders on a yearly basis to ensure that all relevant and necessary documentation is on hand for inspection.  

Why Georgia's SB-6, Seizing Driver's Licenses from DACA Recipients, Is Unconstitutional (and Bad Public Policy)

In an act that seems like a desperate last gasp to remain relevant, Georgia's anti-immigrant caucus has once again submitted far-reaching anti-liberty legislation to the Georgia Legislature in November 2014.  SB-6 was introduced by Senator Josh McKoon (R)(Columbus) during the November pre-filing period. SB-6 has remarkable breadth and overreach, and is not just limited to seizing driver's licenses from lawfully present DACA recipients.  It actually authorizes the Department of Driver's Services to take citizen's DNA before giving them a license.  This unnecessary DNA Seizure bill is simply not in the best interests of Georgia.  

As if the seizure of driver's licenses already issued to DACA recipients and other beneficiaries of federal immigration Deferred Action (such as battered women, victims of crimes, and those whose removal is not the national interest) is not enough, SB-6 also gives no legitimate reason why these noncitizens should be deprived of their legal right to drive, as opposed to allowing other noncitizens, including those who also have "lawful presence," but which the bill confuses with "lawful status." 

To educate those unfamiliar with US immigration law, DACA beneficiaries have been declared by DHS and USCIS to be persons who have "lawful presence" in the United States.  The same is true for other beneficiaries of federal Deferred Action.  They do not necessarily (although they could) have "lawful status," such as visa holders and permanent residents have, but they do have the right to obtain a state issued ID under the terms of the REAL ID Act of 2005.

SB-6's provisions related to the seizure of driver's licenses are found in Section 4.  This section tries to modify the terms of Georgia's acceptance of the Identification provisions of the REAL ID Act of 2005 by deleting the authorization to provide state issued identification to persons with "Approved deferred action status."  The simple reality is that the State of Georgia was required to adopt ALL of the provisions of the REAL ID to have state issued identifications to remain valid for travel and other federal purposes.  By striking this provision in an attempt to seize currently issued driver's licenses, the state legislature would render ALL Georgia identifications invalid for all purposes, including for travel and driving outside the state's borders.  

SB-6 also attempts to be too clever by half, by changing the wording of "lawful presence" to "lawful status" throughout the Georgia Code Section (40-5-21.1) authorizing the issuance of state identifications or licenses.  Its obvious that no attorney who understands federal immigration law advised the writer of this bill about the effect of doing so. The word "status" in the context of deferred action is defined within The REAL ID Act itself, wherein (as in current Georgia law) it is referred to as "deferred action status."  

In much the same way that the ultimately futile and useless (but economically harmful) HB-87 tried to define the non-existent, yet intentionally inflammatory term "illegal alien." SB-6 attempts to define "lawful alien status."  Unfortunately for the authors of SB-6, a term such as this can only be defined by the federal government, which enjoys complete authority over immigration law.  The State of Arizona found that out the hard way (as did the State of Georgia), when the US Supreme Court shut down its anti-immigration legislation in Arizona v. United States, 567 U.S. ___ (2012). In that case, Supreme Court clearly stated that: "[f]ederal governance of immigration and alien status is extensive and complex."  The Georgia State Legislature cannot define its way into a constitutionally valid seizure of drivers licenses.

SB-6 also does things like:
  • give the DDS the right to obtain "DNA" and "retinal scans" from any individual it wishes before giving them a ID or a driver's license, 
  • release personal information of ALL noncitizens to any government agency for any reason, 
  • taking fingerprints for all noncitizen licenses (including lawful permanent residents), 
  • require sworn affidavit to verify status, 
  • increase the fines for driving without a license to punitive levels (for everyone), 
  • allow for seizure of vehicles and impounding for 60 days of any vehicle driven by a driver without a license (for everyone and regardless of the vehicles owner), and 
  • require the DDS to participate in the "E-Verify" initiative for DMVs (effectively giving EVERY Georgian's Picture and ID to the federal government for use in E-Verify, effectively creating a national ID for Georgia residents (but not anyone else).  
  • All with NO funding allocated to carry out any of these tasks.
It's amazing what a "little" bill like this can do to destroy civil liberties!

But, the main reason I write is as to why SB-6, if passed, would be immediately challenged in Federal Court and why that Federal Court Judge would find it unconstitutional.  The State of Arizona, through a Governor Brewer executive order, denied driver's licenses to DACA recipients, even though under state law (virtually identical to Georgia's), they were required to issue such a license. The State of Arizona was sued by the Arizona Dream Act Coalition in attempt to secure driver's licenses for DACA recipients.  In late November 2014, the Ninth Circuit Court of Appeals found that the action by Arizona in denying the driver's licenses to Deferred Action beneficiaries violated the Equal Protection Clause of the U.S. Constitution, and ordered the state to begin to issue the licenses to DACA (and other Deferred Action) beneficiaries. The Supreme Court then, a week later, denied cert and refused to consider the case, putting to an end another anti-immigrant effort.  

The opinion is worth the read.  The proponent of SB-6 has cited a Nebraska case, which purports to be contrary to the Arizona decision, in support of his bill.  But anyone who reads that case will see that the reported opinion simply states that Nebraska law only issued driver's licenses to people in "lawful status" who could be verified by SAVE and thus there was no equal protection violation. The opinion is flawed, however, in that DACA recipients can be verified through SAVE, and Nebraska also gives driver's licenses to individuals without "lawful status" (as does Georgia), and is a point that was actually reviewed and rejected in the 9th Circuit decision.  Today, Nebraska is the only state in the US which currently does not. grant driver's licences to Deferred Action beneficiaries.  

From a public policy perspective, keep in mind that this is yet another black eye for a state which still has some of the highest unemployment rates in the county.  DACA recipients and other Deferred Action recipients have lawful presence. They can and do legally work for many Georgia employers.  They pay taxes, own houses and own cars, and have established a life out of the gray margins of society.  What is the purpose of depriving someone who is lawfully here, legally eligible to work, of a drivers license?  Some sort of purported punishment for not agreeing with Federal Immigration policy?  Do the proponents of this bill actually think this will "chase" people from the state?  If so, they are, simply put, delusional.  Its a monumental inconvenience not have a driver's license, but it does not stop people from driving, regardless of the fines imposed, and it says, once again to the nation that Georgia does not like foreign people.  (Georgia also likes to take your DNA and give your picture and personal information to the Feds for a national id database).  


Let's hope calmer and wiser heads prevail underneath the Gold Dome this session, and SB-6 never sees the light of day.  It deserves to be forgotten, and like it counterpart HB-87, is destined for the dustbin of history.  

Obamacare and Foreign Nationals: Who Pays the Tax Penalty?

We have recently received a lot of questions about the Affordable Care Act ("Obamacare") requirement that ALL persons in the United States prove that they have health insurance or face a penalty, and specifically whether that means ALL foreign nationals.  The answer is yes, and no. 

Anyone who meets the definition of a "tax resident," which is a person physically present in the US for more than 183 days in a year, must show that they have health insurance. This anyone with "lawful status" in the United States:  As The IRS Says on their website:
U.S. citizens living in the United States are subject to the individual shared responsibility provision, as are all permanent residents and all foreign nationals who are in the United States long enough during a calendar year to qualify as resident aliens for tax purposes. Foreign nationals who live in the United States for a short enough period that they do not become resident aliens for federal income tax purposes are not subject to the individual shared responsibility payment even though they may have to file a U.S. income tax return.
This is somewhat misleading because it does not break down the difference between documented and undocumented immigrants.  For example, H, L, E and other valid visa holders must comply with the health insurance requirement, and are entitled to the assistance under Obamacare to obtain it.  
However, the answer is different for undocumented immigrants.  For those without "lawful presence" in the United States, the requirement to obtain health insurance is waived, and there is no penalty to be assessed against the individual. On a person's taxes they will have to indicate that they are exempted from the insurance mandate.  Undocumented immigrants INCLUDE DACA recipients who generally have "lawful presence," but who have been specifically excluded from compliance.  
Finally, undocumented immigrants do NOT include individuals on other forms of "deferred action," as they do have lawful presence.  For example individuals waiting for a U visa number after approval or VAWA approval waiting for permanent residence have "deferred action". Also, individuals with U Visas and TPS status, both of which are considered a "lawful status" by the USCIS, will have to seek health insurance or pay the tax penalty.  
And you can see, the issue of Obamacare is complicated. Seek out qualified legal, tax and insurance assistance, and, as always, watch out for scams and frauds. If it is too good to be true, it is.  

TPS for Syria Renewed!

Yesterday USCIS announced that it would renew Temporary Protected Status for Syria, extending TPS for Syrians currently with TPS, but also including all eligible Syrians who are currently present in the United States as of January 5, 2015. Temporary Protected Status (TPS) is a temporary immigration benefit that allows qualified individuals from designated countries (or parts of those countries) who are in the United States to stay here for a limited time period.

The resignation period for TPS has been extended from April 1, 2015 through September 30, 2016. This permits Syrian nationals who were physically present in the United States on January 5, 2015 to register or re-register for TPS. Those currently on TPS status who wish to extend their status must re-register during the next 60 days, through March 6, 2015. This 18 month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD).  Any re-registrations who do not receive their new EADs until after their current EAD expires will automatically get a 6 month extension on their current EADs.

This offers a great relief for Syrians who wish to extend their stay in the U.S. and are completely out of options, or who those who just need a backup to their plans. Whether you or someone you know is renewing their TPS or applying for the first time, it’s beneficial to consult with a qualified attorney to ensure eligibility and assist with proper filing.


As an Arabic-speaking immigration attorney with years of experience, and specifically with TPS and Asylum, I would be happy to assist with any questions regarding Syrian TPS or any other immigration question. Please feel free to contact me, Hiba Ghalib, at 404-949-8164 or email hghalib@immigration.net

In Case You Missed It! --- Temporary Protected Status Announced for Liberia, Guinea, and Sierra Leone

In the excitement of President Obama’s announcement on Executive Action back in November and the new DAPA Program, many missed the part where the Department of Homeland Security also designated Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS).  As many of us know, TPS is already designated for numerous other countries, but these three are now added to the list as a result of the Ebola outbreak.
In order to qualify for TPS, one must be a native and citizen of one the named countries, must have been present in the United States on or before November 20, 2014, and must not have more than two misdemeanor convictions.  The applicant also cannot have an aggravated felony, but may still be eligible even with an order of removal.  It is important to note the date by which the individual must have been in the U.S., so that some do not try to enter the U.S. after November 20, 2014 thinking that they can apply for TPS.
TPS is a designation reserved for those countries that the Secretary of Homeland Security determines is in great need, whether it be as a result of civil war, natural disaster, or in this case, an epidemic.  To clarify for those who have never been eligible to apply for TPS before, it is not the same as lawful permanent residence.  It is only a temporary status valid for 18 months in this case, but it can be renewed indefinitely as long as the Department of Homeland Security extends TPS for the designated countries.  Further, any convictions that occur after TPS is granted can either terminate a person’s status, or at least make them ineligible when trying to renew their status.  
Another important point about TPS is that although it does not lead to a green card, one can possibly file to adjust their status even if they entered the United States without inspection.  Specifically, often times individuals are not eligible to adjust their status in the United States if they entered without inspection (unless they are otherwise grandfathered under 245i), but recent case law has changed this for those applicants.  Therefore, one with TPS status can now apply for a travel document, leave the United States and return after being properly inspected by an immigration officer.  First, the departure itself would not be considered a departure in light of recent case law such that they individual would not incur a ten year bar.  Second, the subsequent valid reentry would then allow the individual to file for a green card in the U.S. if otherwise eligible.
Finally, TPS for the three countries has an initial registration period of November 20, 2014 through May 20, 2015, and the designation of TPS is for 18 months.  It remains to be seen whether TPS for these countries will be extended beyond the initial period.
If you have any questions regarding this new TPS designation, please contact Danielle M. Claffey at 404.949.8151 or by email at dclaffey@immigration.net.

Dealing With the End of Employment for a Foreign National

We are frequently asked what obligation does an employer have when it terminates a foreign national employee, and what options are available to the foreign national employee if he is terminated.  This memo provides guidance to employers in dealing with immigration matters for the employee who is terminated, with or without cause, or who chooses to leave the employer.  Employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated.

The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation.” L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.

Nonimmigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off, they immediately lose their visa status, and must pursue one of four options outlined below.

The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:
  • Loss of employment for inadequate performance;
  • A loss of employment for violation of workplace rules;
  • Voluntary departure or retirement;
  • The expiration of an employment grant or contract.

A corporation laying off foreign workers must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s payment obligation under the immigration law ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS.   The notice to the USCIS fulfills the requirements for bona-fide termination of employment.

These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:

Laying off H-1B foreign workers

The employer must offer to provide the H-1B workers return transportation to their home country at the employer’s expense.  This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishingr or a dog.
The employer must notify the USCIS of the termination of foreign workers’ employment.

Laying off other nonimmigrant foreign workers

Notify the USCIS of the termination of foreign workers’ employment.

The employer should also ensure that the foreign national worker understands his or her options upon termination. 

Essentially, there exist four options in most cases for the foreign national employee:

  • The employee can leave the United States immediately.  Remember, there is no grace period currently in place for any nonimmigrant work visa (H, L, E, O, TN) unless the employee has completed the fully authorized term of employment.  There is NO grace period in which an employee has a set amount of time to leave;
  • The employee can file for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.).  This application for change of status to visitor should occur prior to the expiration of any time period of severance, and is best filed while the employee is still employed.  This request to remain can be for up to six (6) months;
  • The employee can file to change employers and remain in that visa status.  This means, obviously, that the employee must already have an offer of employment from another employer.  The same process is in place that obtained the current nonimmigrant status for the employee. The employee must also file this change of employer petition while still in lawful status (e.g. during a severance period or while still employed); and
  • The employee can enroll in or return to school. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1).  Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPR).  Again, this change of status petition must be filed while the employee is still “in status,” as noted above.


Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws.  If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys. 



______________________________________________________________________________

DISCLAIMER: The confidential information provided in this memorandum is for information purposes only and is not intended to be legal advice. This information is not intended to create an attorney-client or other relationship between Kuck Immigration Partners LLC and the recipient. The reader should consult with an immigration attorney before acting in reliance on any such information.

TOP 9 DAPA QUESTIONS: And the Answers, as Far as We Know


1.     I am not married to my partner, but we have kids together.  Can I still apply?

a.     Yes.  You do not have to be married to qualify for DAPA.  The only time this would be an issue is if the father’s name is not on the birth certificate because the parents were not legally married.  If that is the case, you can simply have the birth certificate corrected in the county where the child was born to reflect the father’s name.  If the child’s mother will not go along with that, a DNA test may be required.

2.     I don’t have any children of my own, but my wife has children that we have been raising together.  Do I qualify?

a.     Yes.  As long as you were married before the children turned 18, immigration considers them your children for purposes of all immigration applications.  If you are not actually legally married, you cannot count these children as yours.

3.     I was deported before 2010, but I came right back to the U.S. after they deported me.  Do I still qualify?

a.     Yes.  As long as you were not deported or absent from the U.S. after January 1, 2010, you still qualify for DAPA.  Old deportations simply do not affect a person’s eligibility for DACA.

4.     My child has DACA, but I don’t have children that are citizens or permanent residents.  Can I still apply?

a.     Unfortunately, the answer is no.  DAPA only grants work authorization to parents of U.S. citizens and permanent residents.  The president chose not to include parents of DACA children in the DAPA program.

5.     I was arrested and convicted of DUI ten years ago.  Am I eligible for DAPA?

a.     We do not have a solid answer to this question yet.  There are rumors that immigration will still grant DAPA to people who were convicted more than 5-7 ago.  However, there are other rumors that even one DUI will disqualify someone.  We will have to wait and see what guidance immigration gives on this in the coming months.

6.     Do I qualify even if I have not filed taxes during my time working in the U.S.?

a.     As of now there is no requirement that you have paid or filed your tax returns.  This may change, but if it does you would likely only be required to pay from 2010 to now.  What we are safe in assuming is that if you are granted DAPA for three years, and you then want to renew your work permit, you will most likely be required to show that you filed your taxes for the years you worked with your work permit under DAPA.

7.     What happens after Obama is no longer president?  Does the program go away?

a.     We have no way of knowing for sure what will happen once Obama is no longer president.  This will likely depend on two main factors: if a more comprehensive immigration reform is passed in 2015, and if a republican or democrat is elected the next president.  If a more comprehensive reform is passed next year, DAPA won’t really matter too much since people will likely have something even better to apply for.  If reform does not happen and a republican is elected, the new president could cancel DAPA, but even if they do immigration has no way of rounding up 4,000,000 people and deporting them all so at worst, you would have had a work permit for two years.

8.     Can I leave the U.S. once my DAPA application has been approved?

a.     Yes.  You will be able to apply for travel authorization and return to your home countries in most cases. 

9.     I have five convictions for driving without a license.  Will those convictions keep me from qualifying for DAPA?


a.     No.  If you have convictions for traffic offenses such as no license, these convictions will not disqualify you for DAPA.