FAQ Immigration

Immigration FAQ

Immigration Law

• Does a Social Security card entitle the bearer to work?
• How can an employer become liable for inappropriate employment activities?
• How do legal residents deal with personal taxation?
• How do immigration requirements affect international adoptions?
• Can foreign nationals graduating from U.S. 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 temporary protected status?
• Learn More: Immigration Law

Does a Social Security card entitle the bearer to work?

If an individual can present valid work authorization and adequate identification, he or she can receive a card from the Social Security Administration. Although a Social Security card is an important employment document, it does not give the holder the right to work in and of itself. The Social Security card is not the same as permission to work. Immigrants and visa holders must have authorization from the U.S. Customs and Immigration Service (USCIS) in order to work legally.

A Social Security card may remain active even though work authorization lapses. If an immigrant receives a Social Security number based on work authorization, the number still works for tax purposes on interest-bearing accounts and property ownership even if a visa or immigration status expires. However, the individual cannot work legally without renewing his or her employable status with USICE. If the individual intends to stay in the United States for a considerable period, he or she should consider applying for permanent status to avoid the need to continually renew temporary status.

Social Security cards issued to persons with temporary immigration work status state that they are "Valid for work only with DHS authorization." Workers must maintain their immigration status in order to retain work authorization, and employers must ensure that they view proper work documentation prior to hiring any employee. Both workers and employers can benefit from legal assistance regarding work authorization rules and procedures.

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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, and while criminal penalties are more rare, 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 noncitizens, but it is also illegal to hire anyone without performing employment verification procedures for each new worker. Every new hire, even if he or she claims U.S. citizenship, must produce proof of employable status for the employer's inspection. The employer must complete the federal Employment Eligibility Form, or I-9, which certifies that the employer did view the new employee's documentation. Employers may be liable for acceptance of illegal documentation in some instances. 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. Under the IRCA, employers with three or more employees must avoid discrimination when hiring or terminating employees.

The imposition of immigration rules on the employment relationship creates new risks for employers. In order to navigate the growing body of employment rules relating to immigration, employers should seek the assistance of an immigration attorney. An experienced attorney can set up an employment system to help employers avoid expensive sanctions down the road.

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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 fifty individual bilateral tax treaties. The treaties reduce taxation barriers to trade in order to encourage trade and investment. These treaties sort out tax authority for certain types of income and gain 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.

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How do immigration requirements affect international adoptions?

The Immigration and Nationality Act (INA) governs the grant of visas to foreign nationals, including children adopted abroad or traveling to the United States for adoption.

The INA gives special immigration status to children younger than sixteen who have lived with the adoptive parents for at least two years. This provision helps families living abroad who adopt children while living overseas. For most adoptive parents, however, the two-year rule is unworkable. Prospective parents may seek immigrant status for their children by filing an I-600 petition for visa with the U.S. Customs and Immigration Service (USCIS) for the child. The so-called Orphan Petition allows the Service to review the parents' suitability, state adoption law requirements, and the child's legal status. The U.S. embassy or consulate in the country of the child's residence receives the petition after its domestic approval.

Prospective parents who have not located an adoptive child may file form I-600A. This form allows the USCIS to pre-approve the parents' suitability before sending the approved petition to the embassy or consulate in the country where the parents wish to find their child. This procedure gives the parents the option to file the I-600 while abroad or upon their return to the United States.

The I-600 process verifies that the parent and child are eligible for immigration benefits before granting a visa to the child for entrance into the U.S. As with many government procedures, however, the paperwork and procedures involved can be daunting. An experienced immigration lawyer can ease the process and save substantial time that would be best spent welcoming the new child to his or her family.

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Can foreign nationals graduating from U.S. universities stay in the country to work?

In some instances, a graduating student may receive the right to work for a limited period following the completion of the educational program. The H-1B temporary working visa gives foreign nationals the ability to work in jobs that require a college degree. The status is temporary but may act as a platform from which the worker can gain permanent resident status.

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; and
• 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 the issues faced by foreign students, and can offer their expertise to both types of graduates. It is important that applicants seek the work authorization as early as possible so that a valid immigration status does not lapse while the application is pending.

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How can an employer sponsor a foreign worker?

Some immigrants can base their applications to enter the country on employment status. While some types of workers are in enough demand that the USCIS will admit them without a job, other types of workers may enter based on a U.S. employer's sponsorship. If an employer wants to hire a foreign national without current work authorization, the company must file a I-140 petition on behalf of that worker.

Employers can sponsor only the following types of workers:

• skilled workers capable of performing a job requiring at least two years of training or experience,
  
  
• professionals holding at least a bachelors' degree, and
  
  
• other workers capable of performing jobs requiring less than two years of experience or training.

All such workers require a labor certification from the U.S. Department of Labor. A labor certification verifies two things:

• qualified U.S. workers cannot be found at the time of filing the application and in the area of intended employment, who are available, willing, and able to fill the position being offered to the alien; and
  
  
• employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The labor certification process prevents foreign workers from usurping American jobs. If a prospective employee's job does not fit these criteria, the employer may not sponsor the worker.

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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 their freer commercial relationship. Annex 1603 to the 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, and
  
  
• evidence showing 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, or 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 intra-company transfer provisions, which allow managerial, executive, or specialized workers temporary entry to work for their companies in another NAFTA country.

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How can an immigrant lose his or her green card?

The coveted green card (which is, however, not green) enables a foreign national to work in the United States. The right to work is not absolute, however, and a green card holder can lose the card and the corresponding employment status. Generally, there are two ways to lose a green card:

• losing permanent residence status, and
• becoming deportable.

Immigrants lose resident status when they abandon the United States as their permanent home. Without the support of a continuing legal resident status, the green card becomes invalid. The quickest path to deportation is conviction of a serious crime. Serious crimes include, but are not limited to, those involving:

• moral turpitude,
• controlled substances, and
• prostitution.

Due to the importance of the green card, if a holder is charged with a crime, he or she should seek professional legal help immediately. Immigrants should also consult an attorney to ensure that their travel or other plans do not legally indicate an intention to abandon resident status if they do not so intend.

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What is temporary protected status?

Sometimes, changes in world events make a certain country or region of the world much more dangerous than it was in the past. U.S. immigration laws deal with these changes by granting temporary protected status (TPS) to aliens residing in the United States who are due to leave the country for unstable areas. Under the TPS provisions, the Attorney General may designate a country or region as too dangerous for individuals to return. The area must experience at least one of three conditions prior to a grant of TPS:

• ongoing war or armed conflict posing a threat to returning aliens,
  
  
• natural environmental disasters making the area unable to handle the return of any aliens, or
  
  
• other extraordinary and temporary conditions preventing safe return.

TPS is a limited status; aliens do not gain additional rights by qualifying for a longer stay under TPS conditions. Resident aliens must apply for TPS treatment even if exclusion or deportation proceedings were underway when the Attorney General chose a TPS region. The Attorney General's decision is final and not subject to review by any court. Aliens interested in availing themselves of TPS designations should seek immediate legal assistance to avoid return to an unsafe area.

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Learn More: Immigration Law

Many commentators note that the United States is a nation of immigrants. Despite this, U.S. immigration and naturalization laws shift with the prevailing public view of immigrants. The modern system allows immigration for a wide variety of reasons, while protecting national interests through entry limitations. Federal laws also allow temporary admission for certain classes of foreign nationals and grant special status to individuals facing challenges in their home countries. Violation of any legal immigration status can lead to government proceedings to remove the violator from the country.

Asylum status is granted to individuals who would qualify as refugees who present their applications either at the border or within the United States. This status depends on the individual's perception of the risk of returning to his or her home country.

Deportation involves the expulsion of an alien from the United States, regardless of whether the individual entered the country legally or illegally. The most common reason for deportation is criminal conviction, but other grounds may apply.

Immigration includes the entry of persons who want to become legal, permanent residents of the United States. Immigrants base their applications on family ties, employment status, and other special categories.

Naturalization and citizenship refers to the process of becoming a permanent member of the society with corresponding ties of national allegiance. Naturalization is subject to USCIS rules. Citizenship confers a higher level of rights and responsibilities on the individual.

Visas cover a wide variety of circumstances and allow nonimmigrants to enter the country on a temporary basis. Different visas give the holder different rights, so it is important to apply for the most appropriate visa form.

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