Proof of Citizenship Upon Return to US (2008)

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010
Department of State: 202-647-2492

The U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) remind the traveling public that as of Jan. 31, 2008, all adult travelers will be required to present proof of citizenship, such as a birth certificate, and proof of identity, such as a driver's license, when entering the United States through land and sea ports of entry. DHS will be issuing a notice in the Federal Register formally announcing the change.

This change is a necessary step to prepare travelers and ease the transition to the future requirements of the Western Hemisphere Travel Initiative (WHTI). WHTI proposes to establish documentation requirements for travelers entering the United States who were previously exempt, including citizens of the U.S., Canada, and Bermuda. As recommended by the 9/11 Commission, Congress enacted WHTI in the Intelligence Reform and Terrorism Prevention Act of 2004. WHTI will result in both enhanced security and increased facilitation across the border once implemented. During this transition, DHS and the Department of State are working diligently to minimize the impact on legitimate trade and travel.

Currently, U.S. Customs and Border Protection (CBP) officers may accept oral declarations of citizenship from U.S. and Canadian citizens seeking entry into the United States through a land or sea border. However, as of January 31, 2008:

2007 I-9 Employment Elegibility Verification Form

The U.S. Citizenship and Immigration Services Bureau announced today that employer will very soon be required to complete a revised Employment Eligibility Verification Form (I-9). As you know, an I-9 Form must be completed for each employee hired in the United States.

Under the new I-9 Form, the verification process remains the same but there are fewer documents that an employee may present to verify his or her identity and authorization to work. Also,

USCIS encourages employers to begin using the new Form I-9 as soon as possible.

Free Trade Agreement Visas - H-1B1

The H-1B1 visa is for an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit

2. A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree in the specific specialty.

a. Agricultural Manager is recently included for persons under Chile

3. Under current law, the cap for H-1B visas to Chileans are: 1,400 and Singaporeans: 5,400

a. The cap does not apply to applicants filing for extensions, transfers and amendments. Also does not apply to those filing through institutions of higher learning, nonprofit organizations, and government research organizations.

4. The H-1B1 visa allows for multiple-entry and is valid for 18 months

a. H-1B1 status lasts for a maximum period of six years at a time

b. Extensions are granted in one year increments, but after six years, an alien must remain outside the US for one year before another H-1B petition can be approved

i. Extensions or change of employer require the filing of the I-129 (with supplemental Labor Condition Application, H-1B Data Collection Supplement)

5. Applicants can get a visa directly at a US consulate – No DHS petitions are required

Application Process

1. Employer (petitioner) must first ensure that the worker will be paid at least 100% of prevailing wages paid to similarly employed workers in the geographic area where the beneficiary will be employed. Employer must also ensure that it is not paying less than actual wage paid to other similarly qualified employees.

a. Once the wage information is established, a Form ETA 9035 Labor Condition Application( LCA) must be submitted to the Department of Labor

b. The LCA must be submitted electronically unless lack of physical ability or access to the internet prevents the Employer from doing so.

i. The purpose of the LCA is to

1. Ensure US wages are not depressed by hiring foreign labor

2. Foreign workers are not exploited

ii. On the LCA, employer must:

1. Specify wage to be paid

2. Specify the prevailing wage

3. Make certain attestations

iii. Filling out the ETA 9035 (LCA)

1. Employer must first contact the State Workface Agency (SWA) to establish the prevailing wage (arithmetic mean of wages of workers similarly employed in the area of intended employment)

a. Submit the “Prevailing Wage Request”

b. After the prevailing wage has been established, employer must fill out the LAC to the Department of Labor

2. Other attestations employers must make on the LCA

a. Specify number of workers sought; occupational classification for each; prevailing wage (source/method for obtaining it), and actual wage rate and working conditions.

b. Employer will pay the required wage, which is at least 100% of the prevailing wage or actual wage paid to other employees in same position

c. Employment of foreign workers will not adversely affect working conditions of US workers

d. When LCA was filed, there was no strike or other work stoppage because of a labor dispute

e. The beneficiary will be given a cop of the LCA, and the petitioner has notified bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed

*Attestation must be made available for public inspection within one day of filing with the DOL

3. After the LCA is electronically submitted, it must be printed and signed by the employer immediately after ETA provides the electronic certification. This signed form must be maintained int the employer’s file, a copy of the signed form must be maintained in the public access file, and another copy submitted with the I-120 (if applicable)

2. After the LCA is filed, the employer must establish a public access file including

a. Copy of the LCA

b. Statement/document of actual wage to be received by H-1B worker

c. Full, clear explanation of system used to set the ‘actual wage’ paid in the position (ex: memo to file summarizing system/copy of employer’s pay system)

d. Copy of document used in establishing prevailing wage

e. Copy of notice given to union/employees

f. Summary of benefits offered to US workers in the same occupational classification –a statement as to how any differentiation in benefits is made if there are any

*Where employer undergoes change in corporate structure – a swon statement by responsible official of new emplying entity that it accepts all obligations under LCA’s filed by predecessor employing entity, together with a list of each affected LCA and date of certification, description of actual wage system and EIN of new employing entity.

*Where employer utilizes definition of “single employer” in the Internal Revenue Code – list of any entities included as part of single employer in making H-1B determinations

3. H-1B dependents are defined as:

a. Employers having over 50 employees; at least 15% of workforce is comprised of H-1B visa holders

b. Employers having 26-50 employees; employs more than 12 H-1B workers

c. Employers having 25 or fewer employees; employs more than 7 H-1B workers

i. If the employer is H-1B dependent:

1. Employer must attest that it has not/will not displace a US worker during the period from 90 days before the H-1B petition is filed until 90 days afer it has been filed

2. Employer must attest to good faith steps to recruit US workers for the job

4. Response to the LCA will be given within 7 days of filing

a. ALL records must be retained one year beyond LCA period

5. Admission lasts for one year – with extensions granted in one year increments.

a. After every second extension, new LCA’s are required (Approved LCA lasts 3 years)

6. Applicant must submit proof that he has no intention of abandoning his residency abroad and becoming an LPR

7. After an LCA is obtained, the application must present evidence convincing the USCIS of three basic truths

a. Employer has legitimate need for “specialty occupation worker”

i. Easiest to demonstrate, but may be problematic for small or new companies

ii. Can show evidence relating to stability of business (tax returns, payroll records)

b. Position offered is a “specialty occupation”

i. Carefully define and describe the job

ii. Where specialty nature of position is not evident, employer may refer to Trade and association publications, affidavits from authorities in the field, employer’s own hiring practice for the position

c. Prospective employee is qualified for the position

i. Documentation for alien’s education/experience

1. Diploma, transcripts, course descriptions

2. If alien did not attend school I n the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to US bachelor’s degree

3. Can also demonstrate work experience that they have equivalent of a bachelor’s degree. This requires affidavits from former employers outlining responsibilities and skills learned while there.

4. Under USCIS rules, 3 years of work = one year in college

8.

NO IMMIGRATION REFORM

On June 28, 2007, the United States Senate took a procedural vote after which the legislation was withdrawn from consideration. That means that the will be no amendment in the near future.

Please let it be known that there is no reform and that nothing being planned by the politicians This is important because, in times like these, there are people trying to scam the undocumented with flat-out lies.

Maybe the next President will have the guts to fix a system that is obviously not working. I do not care how hard they want to make immigration into the U.S., but everybody needs to recognize that the undocumented are getting jobs. In my opinion, the true "lawbreakers" are those hiring the undocumented with one face and then complaining about immigration reform with the other face. It is time for one face politicians (from all political parties).

Tourist Visa

The “tourist visa” is the most commonly used and abused visa and, for that reason, the Citizenship and Immigration Services Bureau (“USCIS”) and U.S. Department of State have adopted regulation to make it harder to obtain it. The “B-2" or “Visitor for Pleasure” visa is issued by government consular offices at the intending visitor’s country of origin.

“Visitor for Pleasure” is broadly defined as any non-work related trip and has been specifically defined by the regulations to allow trips to visit relatives or to obtain medical treatment. Reasons referring to “Pleasure” can be defined by tourism, sight seeing, amusement, rest, visits with friends, and/or relatives. This does not refer to reasons of work, study, business activities or representative of foreign press or film.

Visas are issued for a period of up to six months. There is a procedure to extend a B-2 visa once a person is in the United States, however, extensions are rarely granted and noone can stay in the U.S. as a “tourist” for more than 12 months.

The Department of State must believe that the intending visitor: 1) Plans to leave US at the end of their stay; 2) Can return to their country of origin; 3) Has sufficient money to support their trip to and from the US. If the consular officer is not certain that the applicant meets any of these requirements, then the visa request will be denied. The process begins with the filing of an original DS-156 Non-immigrant Visa Application Form. Afterwards, the intending visitor may be interviewed at an embassy by an official from the Department of States. Females are rarely interviewed. Males between the ages 16 of 45 must complete Supplement DS-157 Form and undergo brief interview with a consular office. Males or Females 16 and over from North Korea, Cuba, Syria, Sudan, Iran, and Libya must also complete a the supplemental form (DS-157). If the Department of State approves the petition, then USCIS grants the visa.

A person who enters the U.S. with a B-2 Visa cannot work and is generally forbidden from obtaining a different visa. For example, if a person comes a tourist with the intention of becoming a student, he or she has to express their interest before obtaining a visa. Also, persons intending to marry in the U.S. have to comply with other requirements.

I-129 F = Fiancee Visa

A United States Citizen ("USC") may petition the government to allow an foreign fiancee to marry the citizen in the United States. The K-1 visa is available to a USC that 1) has met his or her alien fiancee in person in the last two years; 2) has the good faith intent of getting married within 90 days of the fiancee being allowed to enter the U.S.; 3) there is no legal impediment for the marriage; and 4) has provided his or her criminal record (if any). The minor children of the fiancee may accompany them.

A USC has to satisfy other conditions if he or she has met the alien fiancee through an international marriage broker.

In order to obtain a K-1 visa, the USC must pay a filing fee of $170 and present the supporting documentation together with immigration form I-129 F at the USCIS office of his place of residence. The alien fiancee has to go through an interview at the consular post on the country of residence.

INFO for immigration forms

Information Usually Requested by the Citizenship and Immigration Services Bureau (“USCIS”).

Information About You

Full name (name, middle name(s), last name)

Alien Number (if any)

Social Security Number

Other names used by you, including maiden name (if any)

Place of birth

Date of birth

Marital status

Full name and date of birth of prior spouse (if any)

Date of Prior Marriage / Date Marriage Ended (if any)

Full name and date of birth of your children (if any)

Current address

Your address for the last five years (specifying the month and year of move-in and move-out)

Your Father’s full name; and the date, city and country of his birth

Your Father’s city and country of current residence

Your Mother’s full name; and the date, city and country of his birth

Your Mother’s city and country of current residence

Your employment in the last five years (specify occupation and dates of employment)

Your record of arrests or convictions (if any)

Your last address outside of the U.S. for more than one year (if any)

Information About Your Relative

Full name (name, middle name(s), last name)

Alien Number (if any)

Country of Citizenship

Has your relative been in the U.S., yes or no?

When and how was the last time your relative entered the U.S. (date of arrival, date of departure or expiration of current stay)

U.S. Social Security Number (if any)

Other names used by your relative, including maiden name (if any)

Place of birth

Date of birth

Marital status

Full name and date of birth of your relative’s prior spouse (if any)

Date of Prior Marriage / Date Marriage Ended (if any)

Full name and date of birth of your relative’s children (if any)

Current address

Your relative’s address for the last five years (specifying the month and year of move-in and move-out)

Your relative Father’s full name; and the date, city and country of his birth

Your relative Father’s city and country of current residence

Your relative Mother’s full name; and the date, city and country of his birth

Your realative Mother’s city and country of current residence

Your relative’s employment in the last five years (specify occupation and dates of employment)

Your relative’s record of arrests or convictions (if any)

"Green Card Self Petition" for battered women

The Violence Against Women Act (“VAWA”) allows the spouse of a United States Citizen (“USC”) or a Lawful Permanent Resident (“LPR”) to self-petition is she can prove that she has been subjected to physical abuse or extreme mental cruelty. The following are the basic requirements to obtain VAWA’s protection: A woman must: 1) have been married to a USC or a LPR; 2) have been married in good faith; 3) have lived with the spouse; 4) still be married to her husband; 5) be of good moral character; 6) show extreme hardship if she is forced to leave the United States; and 7) show that she has suffered physical abuse or extreme mental cruelty from her spouse.

A self-petitioner has the duty to prove, with sufficient evidence, all the minimum requirements. Of particular importance is the fact that she was the subject of physical abuse or mental cruelty. The Citizenship and Immigration Services Bureau (“CIS”) requires evidence generated at the time of the abuse. For that reason, the CIS give more credibility to evidence such as police reports or medical records. Affidavits created at the time of the filing of the petition of course have less credibility than records generated by a neutral third party at the time the abuse occurred.

Is the “Z Visa” the solution for undocumented workers?

The White House began circulating on March 29, 2007 what seems to be their proposal for undocumented workers currently living in the United States. According to published accounts, the President would ask all illegal immigrants to apply for a “Z Visa” and to pay a heavy fine to obtain legal status. To begin the process, a person is required to pay a fine of $3,500 to obtain a 3 year visa and would have to pay $2,000 to apply for a “Green Card” and $8,000 if the Legal Permanent Resident Card is finally approved. Also, the family head would have to leave the United States and come back under the “Z” provisions.

To maintain legal status, applicants would have to have a clean criminal record, work, pay taxes, know English and have a basic understanding of civics and how government works. “Z Visa” holders would not be able to sponsor family members to come and join them in the United States. We will see how Congress would take this initiative from the President, but at least there is an initiative after almost a year of talk and no action.

Immigration Consequence of a Criminal Conviction

This is a very brief summary of law regarding the consequences of a criminal conviction under the Immigration and Naturalization Act (“INA”). The INA allows certain non-citizens to live legally in the United States either temporarily or permanently. If a non-citizen takes some action that violates the conditions of legal residency, however, he or she becomes “removable”, that is, that he or she will be deported from the United States to his or her country of origin.

The law considers as reasons for deporting a non-citizen, among other, whether the person has committed a criminal act, has committed an immigration law violation, is a threat to national security or whether the immigrant would become a public charge.

INA sometimes allow removable non-citizens to obtain a relief from deportation. A removable person may be able to obtain certain “waivers” or pardons or may be able to obtain a “cancellation” of his or her removal or deportation. However, such waivers and/or cancellations are unavailable in certain cases and, in those cases that the remedy is available, it is within the discretion of the U.S. Department of Justice to grant a relief from deportation.

Immigration Interview: What to do?

DO prepare for the meeting. Bring copies all of your forms and all your document originals. You should be able to respond to questions about your forms without extensive referencing and confusion.

DO be prepared to answer personal questions if you are at an interview related to your marriage to a U.S. citizen.

DO follow the directions of the USCIS officer. If the officer wants to interview you and your spouse separately, that is perfectly appropriate.

DO listen carefully and answer only the question that the officer asks you.

DO bring an interpreter with you if you do not understand English.

DO dress appropriately for the occasion. This is an important meeting for you, and a good impression can't hurt.

DO remain calm. If you don't understand the question, ask the officer to rephrase it. If you really do not know the answer to a question, it is better to admit ignorance than make something up. It also helps to be prepared. If you know there is a part of your application that will raise suspicion, practice a truthful response.

DO show up on time. USCIS officers are notoriously difficult to reach and requests for changes in interview times are not well received. If you fail to show up for your appointment, you may have to endure a lengthy process to get another interview.

DO hire an attorney to accompany you if the thought of going through an interview alone is too overwhelming.

THE DON'Ts

DON'T joke around with the USCIS officer. In particular, avoid joking or sarcasm related to drug dealing, communicable diseases, bigamy, or smuggling people into the country.

DON'T argue with your spouse or other family members in the middle of an interview. Agree before hand on what you will do if a disagreement arises during the interview.

DON'T argue with the USCIS officer. If the USCIS officer says part of your application is incomplete, ask for an explanation and attempt to remedy the situation by using the documents and forms you have brought with you.

DON'T lose your patience with the USCIS officer and refuse to answer questions. Questions that may seem inappropriate or unimportant to you are probably within the boundaries of what is allowed by USCIS policy. Just remember what the pay off is for going through with the interview.

DON'T lie to the USCIS officer. If you feel you have something that would be difficult to explain, hire an attorney. Your attorney should be able to defuse difficult situations during an interview.

List prepared by Findlaw for the Public (www.findlaw.com)

www.riveracarbone.com

Violence Protection Act - U Visa

The Victims of Trafficking and Violence Protection Act (VTVPA) intended to provide a special visa for victims of certain crimes to live legally in the United States. However, the Department of Homeland Security has yet to issue the regulations and to grant U Visas. For that reason, some victims of the specified crimes have been able to obtain a "U visa interim relief" which allows them to temporarily hold any action against them by the DHS and in some cases work legally.

The person interested in obtaining U visa relief should be able to prove, among other things, that he or she has suffered substantially as a result of being the victim of the specified criminal activity; that he or she possesses information about the criminal activity and is likely to help in the prosecution of said criminal activity.

Under VTVPA a victim of the following crimes may be able to obtain a remedy: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, female genital mutilation, sexual exploitation, prostitution, peonage, abduction, kidnapping, slave trade, involuntary servitude, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury.

www.riveracarbone.com

Your rights if "INS" detains you

REMAIN SILENT!

It is Your Right…
If the Immigration Service arrests you:

· Do not answer any questions.

· Do not say anything about where you were born or how you entered the United States.

· Do not show any documents, except a letter from a lawyer. Above all, do not show any false documents!

· Do not sign anything, especially an Order of Voluntary Departure, without first talking to a lawyer.

· Tell the Immigration Service official that you want your hearing in the city closest to where you live where there is an immigration court (so that they do not transfer your case).

Prepared by the Immigrant Legal Resource Center – October 2006

If the Immigration Service comes to your home ...

DO NOT OPEN THE DOOR!

You have rights ...

· Ask to see a Search Warrant. If the official does not show you one, you do not have to open the door.

· Do not sign anything, especially an Order of Voluntary Departure, without first talking to a lawyer.

· Do not answer questions. Do not tell them anything about where you were born or how you came to the United States.

· Do not show any documents if the officials do not show you a Search Warrant.

· Do not allow the official to enter your home. If you allow them in, you lose some of your rights.

Prepared by the Immigrant Legal Resource Center – October 2006

If you are working, do not panic ...

KNOW YOUR RIGHTS!

If the Immigration Service comes to your workplace:

· Do not run! It is better to remain calm. You can calmly leave an area where the Immigration Service has come.

If you are detained:

· Do not answer any questions. Do not say anything about where you were born or how you entered the United States.

· Do not sign anything, especially an Order of Voluntary Departure, before talking with a lawyer.

Prepared by the Immigrant Legal Resource Center – October 2006

"INS HOLD"

The current political winds have prompted a surge on "INS Holds. " An immigration detainer or immigration hold is a request by the U.S. Government to a state or local government for the local government not to release a detained non-citizen until the Immigration and Customs Enforcement ("ICE") is notified that the person is free to go on local charges. Once the non-citizen qualifies for local release from prison, and the ICE is notified, the U.S. Government generally has 48 hours to decide whether the person will go under federal custody. In most cases, the immigration authorities then issue a Notice to Appear, which is the document that formally begins deportation or removal proceedings.

In any case a person has been informed that there is an "INS Hold", it is important to consult with an immigration attorney to explore the remedies available to the person subject to the "hold" or detainer.