What should I do if I am not covered by Obama's executive order on deportation?

The Democrats and President Barack Obama have done what they could to grant legal status to as many illegal immigrants as they lawfully could, but that leaves many of you out.  However, there is no reason to lose heart because right now things are looking pretty good.  Yes, you would have been better off with papers, but this what you can do to improve your chances of legalization:

  1. DO NOT leave the United States because you have lost hope.  Hang in there because your turn will come.  If you leave, your chance is gone because any legalization will require you to have continuous stay.
  2. If you are a woman of childbearing age, try to have what is known as an anchor baby.  If you give birth in the United States, you will be able to apply for legal status.  You do not need a boyfriend or husband; many women simply seduce a man (there are a lot of men who have nothing better to do but to search for women).  You can also strike a deal with another undocumented male alien to help each other since even if you two are not in a relationship, he can apply as the father.
  3. Stay out of trouble and do not mess with the law.  Do not drive while drunk, do not steal, do not break the law, and always do the right thing.

While comprehensive immigration reform is not happening as long as President Obama is in power, but both Democrats and Republicans are scared right now of you because of your numbers and all the protests going on.  Even American people have given up and resigned themselves, so they are unlikely to protest.  It is only a matter of time that full legal status is granted to everyone.  We are receiving reports that people from Latin America and all over the world are preparing to cross the border illegally through Mexico or overstay their visas so that they will have five years by the time a full amnesty is signed into law by the next president.

Obama's executive order on deferral of deportation and work permit for illegal parents of US born children and green card holders

You see, under American law, an American citizen, after the age of 18 (and meeting other strict criteria like having enough income), is allowed to sponsor parents to immigrate to the United States, but we have a situation in which many illegal immigrants have given birth in America (they are sometimes also called as anchor babies by many legal experts) and when their parents are deported, either the kids should leave with their parents or they are left in the country in the foster care system or with other family members.  We all know that youth in Hispanic communities are already under-performing academically and if they are without their parents, they are more likely to take up crime, drop out of school, and basically become a huge burden on the society.  That is why President Barack Obama has decided to let the parents live legally and work in the USA with the following requirements (the program is called Deferred Action for Parental Accountability or DAPA):

  1. Parent (by birth or adoption.
  2. Must have a child who is a US citizen (born prior to November 20, 2014) or permanent resident (green card holder)
  3. Have lived illegally continuously in the USA since January 1, 2010.
  4. Pass a background check -- a few misdemeanors are okay but felonies are not.
You will need to provide documentation to support the relationship so if you are a father who has abandoned his kid(s) it is time to reconcile with the mother and the child and move in with them.  This is going to be an important requirement at least till you get your papers.  You do not have to marry the mother of the child but will have to live with them. Once you have the documents ready, simply do the paperwork with the USCIS and you will not be deported, get a work permit, and in some states, even have a driver's license.  You will not be able to leave the US without applying for advanced parole, and cannot sponsor other family members to come to USA, but can live and work legally.

Sponsor deported Mexican for green card

Amanda writes, "I fell in love with a Mexican citizen but he has a complicated immigration history.  About 15 years ago, he crossed the border illegally and  lived here until he was deported for DUI with a ten year ban.  However, like most other illegal immigrants, he too entered again, and met me.  I did not consult an attorney but we both decided that it was best if he left the US voluntarily.  We have since married in Mexico and I want to now sponsor him for a green card.  What should I do?  Will he be able to enter the United States?"

This is a very complicated situation.  Deportation for DUI and then reentry after deportation together amount to two felonies.  While he was convicted only for one, you will obviously disclose that he broke the law again when he entered again illegally.  You will need an excellent attorney to review the case to conclude if it is even worth applying.  The fact that the immigrant is married to an American citizen can often mean more lenient review of the application (by requesting waivers), and that is why I recommend that you do not file the paperwork yourself.  Instead, make sure that you spend the money to seek help of an experienced attorney.

Impact on naturalization of not filing taxes prior to green card

Aasif writes, "I came to the United States on H1B from Pakistan and since I am from a country where no one really pays any income taxes (we just bribe the bureaucrats), I did not know that I had to file a tax return.  I assumed that because my employer was deducting taxes already, there was not much for me to do.  So I did nothing for three years, but then I realized all the talk about taxes and figured out I needed to do it myself.  So I filed the tax but not for the previous three years.  Surprisingly, I never heard from the IRS (unless the mail got lost because like any new immigrant I was constantly moving).  In a few years, my employer sponsored me for a green card and no one asked me about my tax situation (in both USCIS Forms I-140 and I-485, there was no query related to filing taxes).  My permanent resident status was approved and I have always filed my taxes since then, but now I am ready to apply for naturalization.  My question is that since I have filed all the taxes since becoming a permanent resident (the USCIS on Form N-400 only asks if I have ever failed to file a tax return since becoming a green card holder and if I owe any money to the IRS, and I don't because when I called the agency I was told that I owe nothing), can my past come to haunt me?

Sloppy tax history may not be crucial to becoming a citizen due to IRS privacy laws:  It is indeed true that the USCIS only cares about taxes after green card is approved but the good moral character aspect is very fuzzy.  It depends on an officer to figure out if you have good moral character to be an American citizen and nothing screams 'no way' than being negligent about taxes.  You see the USCIS can be quite sloppy in its work and in most cases of naturalization, they rarely bother to question what happened before the green card was approved (assuming that the agency did a good job in approving it).  So you could get away with it and become a citizen without a problem.  However, the risk always exists that despite the inability of the USCIS to see your tax records at the Internal Revenue Service, somehow your negligence with taxes might show up.  Chances are that your application will not proceed forward smoothly and might open a can of worms with charges of tax evasion.  In an extreme case, it might be concluded that your green card was issued in error and could be revoked, followed by seizure of your assets and deportation (depending on what you owe to the IRS).

Having clear tax history is always the best option:  Without knowing your income and tax details, my guess is that because you failed to file a return, maybe the IRS simply filed one for you (the IRS typically mails out letters before it does that).  Since you were probably living in a rental apartment and did not have any deductions, chances are that you did not owe anything to the IRS.  That is the reason why IRS is telling you that nothing is owed by you.  It is of course disappointing that you let the IRS take your money because you were careless (since you did not claim any legal deductions).  My advice would be that despite high chances of your approval and comments from the IRS that you do not owe anything, you should still hire a CPA to file taxes for the years you did not do so (you will have to do the hard work of coming up with the documentation but it will be worth it).  If you were owed a refund by the IRS, you will not get a penny because of the three year limit on refunds.  However, by filing taxes (and in the remote case that you owe something to the IRS, pay it), you will be in the clear for the rest of your life (the IRS can come after you and there is no statute of limitations).  The CPA may cost you several hundred dollars for this, but it is a good idea to become meticulous with your tax history before applying for citizenship.  You will have less anxiety throughout the process, particularly during the interview.

Should I naturalize if I have no ties to America?

Andy writes, "I have had a wonderful time in the United States since coming here to study.  I received excellent education, worked in good jobs, and became a better person, but recently I was laid off and have struggled to find employment.  I have been legal all the time and am crime-free, so I should have no problem naturalizing.  I am now eligible to apply but am wondering if it is worthwhile for me to go through the process considering I have no family ties here.  Everyone is back in Europe and recently my girlfriend of three years broke up with me.  My big dilemma if I should become a citizen and leave (my country allows dual citizenship) or just leave.  Please help."

One of the biggest complaints that Americans living overseas have is that they have to file taxes in the United States on their global income.  In some cases it means that they might owe something to the IRS but generally speaking if you are paying taxes overseas, you will not need to pay anything but you will still be doing all the paperwork.  It is not surprising; most Americans hate taxes and even more, actually doing taxes, because our laws are so complex that even people like me who do my own taxes using TurboTax still find it painful.

You may want to remember, though, that American citizenship has its privileges.  I don't know which European country you are talking about, but Americans are entitled to all sorts of benefits (particularly during old age with programs like Social Security and Medicare) paid for by taxpayers.  Also, typically US Government does its best in helping Americans in difficult circumstances overseas.  My advice would be that if you are a middle class individual, taxes will not be a problem for you.  It is the super wealthy who face more problems.  So having US citizenship will give you options in case you ever want to come back for whatever reason (medical care, jobs in an improving economy, or just to retire).  Most people who naturalize are citizens of poor countries like Russia, Brazil, China, India, The Philippines, Mexico, Central America, etc. because they find American life to be much better than in these corrupt, hopeless countries.  Western Europeans naturalize only if they have strong ties to America.

Actual trip details different from visa application

Aruna writes, "When I applied for a tourist visa at the American Consulate, I was planning to go to Dallas, Texas to attend the wedding of my cousin, and that is the information I provided in my B1/B2 visa application along with details on the dates.  It turns out that due to a family tragedy, I cannot attend the wedding but will instead take a trip with the couple to see the Grand Canyon and Las Vegas a month later than the original plan.  Is this a problem?  My trip dates are different and I will now be spending a week longer than the original plan of 10 days.  What should I do?"

When the State Department asks for an itinerary and purpose of visit it is merely trying to collect some basic information to decide whether a visa should be issued or not.  Everyone understands that plans change so it will not be an issue.  It is also important to understand that the immigrant agent at the airport you will encounter will not immediately have access to your visa application, so the questioning will be along the lines of your trip duration, destination, etc.  If you are asked to go for secondary questioning or the officer asks questions related to your initial plans, you can simply explain exactly what happened.  Remember that if it is a multiple entry visa, you are eligible to use it to visit as many times as you feel like for purpose of business or leisure (a visitor visa is not to be used to live in America but you can have almost unlimited trips in an year to USA).

Apply for citizenship for children from first marriage

Charlie writes, "I am a naturalized US citizen and have one US born child, but I also have two children from my first marriage to a woman who still lives in my native country and is raising the teens there.  I think it will be great if they can have American passports allowing them to study, work, and live here.  What do I have to do?"

The simplest option for you would be to convince your current wife and ex-wife to let you allow to bring your children to America on green cards (it will be easy for you to sponsor your minor kids and they will have a very brief processing time).  After they live with you, then, you can file USCIS Form N600 for their certificates of citizenship (all these steps must happen before they turn 18) that can be used to apply for passports.  Once they become US citizens, they can live anywhere they want.  By the way, if they are close to 18 and not all steps can be completed before the eighteenth birthday, they will simply have to live in America for five years and file USCIS Form N400 for naturalization (so it will take a lot longer and in the meantime they may only be able to visit their mother but would largely live in America with you).

The second option for you would be to convince your current wife to move with you to your native country.  You will also need to convince your wife and ex-wife to let your children move in with you under your legal custody.  Then you can apply on USCIS Form N600K for their certificates of citizenship, yet again, before their 18th birthday.  Once they become citizens, they can obviously live anywhere in the world.

Apply for F1 visa outside native country

Anthony writes, "I am currently pursuing a masters program in Australia and have been accepted to a Ph.D. program in the United States.  With the massive aid package that I am receiving along with my own savings, I am good with financial support documentation.  My concern is that because I have not lived in The Philippines (my home country) for many years, it is hard for me to demonstrate ties there.  At the same time, since I live here also on a temporary basis, I do not have strong ties to Australia.  Will this be a problem while being considered for the student visa?  How can I prove my intent not to live permanently in the United States?"

Yes, your situation is extremely tricky, but whatever ties you want to show, you want them to be in your country of birth (the exceptions are for those individuals who, for example, have employers in another country who will offer them a job after graduation from Ph.D, or a spouse of that country or some other solid proof of returning to that country like property ownership).  So you need to provide proof of ownership of property in The Philippines or that all your family is there (your task may become a lot harder if you already have close family members in the United States).  Be prepared to be questioned about your plans after graduation.  For example, make sure you know the answers to questions like what would you do in The Philippines once you graduate ("I plan to become a researcher at the University of Manila and work on technologies that will solve the persistent drinking water problem in the country.").  Your probability of being given a visa is extremely low, but you should try.

Consulate has instructed to surrender green card after issuing tourist visa

Vivek writes, "My elderly Indian parents received their green cards over 8 years ago but have not been able to live in or visit the United States for over five years now.  Recently, they applied for visitor visas and when they received their passports there was a letter asking them to show up at the Mumbai Consulate and surrender their green cards after completing Form I-407.  Since it is such a hassle in India to visit the United States embassy or consulates and they are both in poor health, can they simply surrender it at the port of entry on arrival in the US?  Can they authorize an attorney to do it for them?  Is it possible to mail everything?"

Permanent residence status must be formally surrendered:  For anyone who has ever applied for permanent status in the United States, it is as much hassle to get the coveted alien registration card as it is to surrender it.  While there are some broad guidelines that if a GC holder stays overseas for more than one year without a reentry permit, he or she has lost the green card or it has become invalid by reason of abandonment, the fact of the matter is that the green card is not formally cancelled until an immigration judge approves it or the alien voluntarily surrenders it.  So while technically your parents have abandoned their permanent residence in America, the process is not complete till the paperwork is done because in theory they can try to convince an immigration judge that they have not abandoned their permanent residence status and should be allowed to live yet again in America.  By applying for tourist visas and the embassy issuing them, it is merely a formality that needs to be completed for a smooth process for them as well as the United States Customs and Immigration Departments.

Now, regarding surrendering it by mail, apparently this option is not available to Indians (nationals of other countries should check with the local embassy because in many countries, the paperwork can simply be mailed -- on the embassy website search for the keyword I-407).  She will have to bring it herself at one of the consulates in India.  For similar reasons, Indian citizens are not able to use the services of an authorized agent or lawyer to renounce the green card. 

What happens at the airport on arrival?  Except for citizens, entry into the United States is not a right but a privilege.  The decision is made at that point of time by an agent at the border or airport and is final.  There is no appeal process or request to speak to a higher level officer.  So if you show up at the airport (even with a valid visitor visa) without actually formally surrendering your green card, the agent will still deal with you as if you are a permanent resident arriving after abandoning your status.  Be prepared to be grilled (maybe even in a secondary questioning area) about all sorts of issues including unpaid taxes.  It is also likely that not only can the officer confiscate your green card, revoke your permanent resident status, and put you on a flight back home (never forget that a visitor visa provides no guarantees to entry).  Alternatively, your green card maybe cancelled, but you are allowed entry in order to appear before an immigration judge.  For someone who plans to surrender the card anyway, this is huge hassle because the court date could be months away and without appearing before a judge, you cannot leave the United States (which would amount to self-deportation and can have severe consequences like bans on reentry).  So the right way to do this is to actually surrender it formally at the consulate in your native country and then keep a copy of your stamped Form I-407 with you while traveling to the US every single time (while the US databases will be updated to reflect that you are no longer a permanent resident, at the time of airline checkin, the agents will not let you board the plane unless you show the stamped Form I-407 to prove that you are no longer a permanent resident but will be using a tourist visa to enter USA).

Who will benefit from Obama deportations review?

Since the so-called Comprehensive Immigration Reform is dead till the next president assumes power in January 2017 (while it is too early, but the expectation is that in the 2014 mid term elections, the GOP will most likely not only retain control of the house, but will do so with a bigger majority, and there are some models showing that it might regain control of the Senate, or at least reduce the number of seats Democrats now control).  So unless the Democrats do well in 2016 elections, it is difficult to see how undocumented immigrants will be able to legalize their status.  And because the Democrats need to do something to get the Latino vote in 2014 (and hopefully at least keep their small majority in the Senate -- no amount of Hispanic vote can change the House of Representatives), President Barack Obama is considering what can be legally done to help those aliens who are illegally in the United States, pretty much like he helped a small group of so-called DREAMers by implementing a Deferred Action For Childhood Arrivals or DACA (this does not give them legal immigration status but stops their deportation and allows them to work legally with some freedom to travel outside the United States).  Since it is absolutely critical for an immigrant to have been present the whole time in the United States, anyone deported will typically not be eligible for any kind of legalization, so such programs help people stay in the country in the hope that some kind of reform might happen in the future.

What will happen after the review is completed?  Of course, the review is just a fancy name for what has already been pretty much decided.  The idea behind using the term 'review' is to create a legal cover for executive action by the President.  The Administration also wants to make sure that enough legal scholars are consulted so that if the program is announced, a court will not strike it down as unconstitutional (contrary to demands by some undocumented immigrant groups, the President cannot make anyone legal or give them green cards or make them citizens -- in fact, any deferral of deportations will be temporary till the last day he is the president, and if the next president is a Republican, he can revoke all the permits and deferrals).  Based on the information leaking out of Washington DC, this is what is likely to happen:  if you are illegally in the United States (either because you overstayed your visa or crossed the border illegally), and have not been convicted of a felony and have maximum of three misdemeanors, you will be approved.  You will not be penalized for stealing Social Security numbers, or for failing to file income taxes, or for using fake papers to work.  No back taxes will be required to be paid.  There will be extra points if you have an immediate family member (meaning spouse, child or parent) who is a US citizen or permanent resident.

How will I apply for the work permit and deferred action?  It is expected that the USCIS will administer the program and require you to complete two or three forms.  So, it is recommended that you prepare for this program by getting a valid passport from your native country and start collecting evidence of your stay in the United States like leases, bank statements, utility bills, etc.  The fee is expected to approximately $500 per person and a small discount for minors (in other words, if you are tight with money, start saving by cutting back on entertainment and shopping).  Once you submit the paperwork, you will be fingerprinted and a background security check will be done to confirm your identity and find out about your criminal background.  Your approval will give you an employment authorization card (EAD) that you can use to apply for a real SSN at the local SSA office.  Using both, you will be able to work anywhere in the country for any job, except for the government.

Apply for tourist visa in USA

Raju writes, "I am nearing the end of my H1B stay, but after my job ends and before I head home, I would like to take a coast-to-coast road trip with my family.  I think everything is in place for us, we have a car, we are already here, we have time, so it will be great if I can get a tourist visa right here in the United States.  That way I don't have to deal with the nightmare of getting an American visitor visa in India.  Also, once I go back to India, my family may get tied down with schools and jobs and we may have difficulty having a trip like this.  Is is possible for someone to apply for B1/B2 visitor visa while already in the United States.  I tried to research the State Department website and it keeps suggesting only overseas consulates.  Please help."

As you found out, typically a tourist visa is issued overseas.  If you are already here, it sounds illogical to apply for a visitor visa.  However, for aliens like you, who entered the United States legally, have always been in lawful status (generally speaking if you have already passed the date of legal stay on I-94, you application will be rejected), have not broken any other laws, the USCIS offers an excellent shortcut because you have already undergone the scrutiny that is associated with a tourist visa.  So what you will need to do is to file a Form I-539, Application to Extend/Change Nonimmigrant Status using USCIS ELIS, an online system.

What are the things that you should be aware of?  You should apply as early as you after you have made up your mind, but definitely at 45 days ahead of the expiration of legal stay indicated on your I-94 stamp in the passport. If the USCIS does not approve the application before your I-94 duration date expires, there is no reason to panic, because you will still be considered legally present in the country till the decision on your change of status is made.  In other words, you will not be deported, but be prepared to leave immediately just in case the application is denied.  But remember that it is always a good idea not to mess with these dates and it is best to apply several months ahead and leave before the I-94 expiration.  That will ensure that your stay in America was always legal.

Is it safe to get driver's license meant for undocumented immigrants?

Due to heavy demand from undocumented aliens that they should be issued driver's licenses (some legal experts concur that people who are in the country illegally should be issued permits to drive so that they will then buy auto insurance, learn to drive safely, and will also be able to use the licenses as proof of identity to access services like libraries), many states are already issuing licenses (e.g. California) or will do so in the future.  It is only a matter of time that all 50 states will issue licenses to everyone who is the US illegally even if the so called comprehensive immigration reform does not pass.  A lot of you have written wondering if you should apply for these licenses and what are the risks and benefits.  Many of you are afraid that the information you provide will be used to catch and deport you.

So should you get these licenses?  Well, the benefits of getting these licenses clearly outweigh the risks.  Having a driver's license not only allows you to legally drive a vehicle, it is pretty much the most widely accepted identification document in the country.  You can buy alcohol in a bar or restaurant or shop, enter a nightclub, board a plane, use services in your town, open a bank account, check into a hotel, and present it anywhere someone requests proof of your identity.  It will make your life extremely easy.

What are the downsides?  Well, for understandable reasons, the license will be somewhat different than those issued to legal residents and citizens.  While the guy at the local bar may not even know what that means or care about it, but law enforcement agents will definitely know that you are illegally in the United States, because otherwise you would have a standard license.  So if you do get stopped by a cop and you present this ID, the policeman will know that you are an illegal alien, but it is much better than presenting no license while driving and getting ticketed for it.  And many of you who worry that this license will make it easy for ICE to catch and deport you, look, if DHS wants to catch and deport you they don't need to give you a license first.  They can find anyone they want and deport them.  The fact is that the United States wants to make it easy for undocumented aliens to live and work here, and this is one way to do that.  Yes, you will voluntarily provide your information that will be stored in a government database that can be used for any purpose whatsoever, but that is what everyone else does.  And if you want to live here, you will have to abide by the rules and laws of this country.  If you want privileges and rights (to drive a vehicle, for instance, which is not a right), you must abide by the laws of this country.

File for visa again after lying in the past

Urvashi writes, "A few years ago my employer had applied for H1B visa but because I did not have all the requirements, I lied about my experience.  I simply claimed that I had experience at a firm even though I never worked there.  A lot of Indians routinely lie on their visa applications, because for a lot of outsourcing firms, getting the H and L visas are everything.  And it looks like Americans are either stupid or too nice that they cannot catch the crooks like me in India -- my petition was approved.  However, I was so scared that my lie will be caught that I never went to the Chennai Consulate for stamping.  Things worked out for me as I found another job.  Since then, now I have the actual experience and my employer wants to sponsor me for a H visa again but I am scared to death that my lie will be caught, and that not only will the petition be rejected because of the inconsistency in the two applications but also that my employer will find out about it and I will be fired.  Can you tell me if my lie will be caught?"

Well, no one knows what will happen to your application, but here is how the process of scrutinizing an immigration application works.  When your employer filed your application, either some data was entered directly online by an attorney and whatever paper evidence was provided by you was scanned at the offices of USCIS.  By doing that, all the information for an individual is in one digital location.  Since you were already approved for a petition, the agent who will process your application may want to check more thoroughly what happened last time, and take that into consideration (in any case, both applications will be archived in one location so that they can be retrieved in the future).  Depending on your fortunes, he or she may completely miss that one line on the resume or might be alarmed by it and start comparing the two applications more thoroughly.  Remember that this is not a terrorism investigation so no one will pour over it for hours or days, but if an officer happens to notice the inconsistency, he might dig more.  It is also likely that the fact that they will see an approved petition might help you because the officer will assume that you have already gone through one level of screening and analyze your application more casually.  If they find something troubling, they will simply reject the petition without assigning any reason whatsoever (or give a broad reason that may not explicitly list that you lied about your experience).  So your employer may never know the exact reason.  Just to add, the general principle in the United States is that lies are a big deal and once it is discovered that information will remain forever and may affect your ability to get future visas.  It is also possible that you will be approved yet once again, but it does not mean that this lie will not come to haunt you in the future, because misrepresentation of facts to Uncle Sam is a serious crime, as your diplomat Devayani Khobragade learned the hard way.

How to work with fake papers and not get caught?

First of all, it is important to understand two things.  One, it is a crime to be in the United States illegally.  Two, it is also a criminal act to work without authorization even if you are legally in the country.  Having said that, USA has at least 12 million illegal aliens living and working.  Thanks to Obama Administration the task of having a job without authorization from DHS is now even easier.  And if you are an employer reading this and either hire undocumented immigrants deliberately because then you don't have to pay them a fair wage or you can cheat on FICA (they are both criminal acts by the way), the message from Obama Administration is that the Feds will look the other way because in the end they do not want to upset the business community (it has a huge voice in Washington and can provide lots of money for campaigns) but also want to help out the Latinos so that they can continue to vote for Democrats.

So how to use fraudulent documents to get a job and keep it?

In a memo Alberto Ruisanchez, Acting Deputy Special Counsel, Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, Civil Rights Division of the United States Department of Justice has the following instructions to employers and undocumented immigrants are welcome to exploit them.  Needless to add that since you are breaking the law, you should consult an attorney to understand the consequences because while the Obama Administration is trying to help you out, ICE can catch and deport you after a workplace raid (though they are extremely rare and if you do not have a criminal record, you are pretty much safe):

  1. Always spend enough money to get high quality fake documents like Social Security card, green card, etc.  The documents should be so genuine looking that the employer will not suspect that it is fake (the only responsibility of an employer is to make a good faith estimation that the document appears to be genuine).  The Justice Department has banned employers from conducting forensic tests to find out the validity of a document.  You complete Form I-9 and provide the document.  The employer should look at it and make a copy but give it back to you right away without using any high tech device to see if it is fake (imagine the kind of testing TSA agents do at the airport when you go through security).
  2. The employer cannot ask you to provide any additional evidence just because you look like you just crossed the border or have difficulty speaking English.
  3. Once you are hired, an employer cannot ask you to present a document again establishing your eligibility using the excuse that they are conducting an internal audit.  Even an excuse by the employer that they did not make a photocopy of the document at the time of hiring is invalid.
  4. If the employe still insists that you provide the documents you submitted in the past or insists on checking the authenticity of documents you present at the time of hiring, you should refuse to cooperate.  Also, hire an attorney right away so that you can then complain to the Civil Rights Division of the Justice Department.

How does Medicare find out about illegal immigrants?

While most experts will advise undocumented aliens in the United States not to mess with Uncle Sam but it is way too tempting not to get all the freebies.  That is why there is so much fraud committed by illegal immigrants with their taxes and taking advantages of loopholes to get benefits from government programs reserved exclusively for US citizens and legal residents.  It is even easier to do if the illegal alien has stolen the identity of a citizen using fake papers.  Since there are private contractors involved in the programs (they have all the incentives to have as many people take advantage of the program as possible so that they can then bill Uncle Sam) it is easy to enroll in programs like Medicare.

What will happen if the Government wants to track you down?  So a lot of people write asking if they will ever be caught for this theft that has gone on for decades.  You see while the Government is too broken to find the culprits, typically Medicare will try to match the information in the databases maintained by Social Security Administration (SSA) and Department of Homeland Security (DHS).  Information is not publicly available on what other databases are accessed but it is possible for the staff at Medicare to nail down the immigration status of an individual fairly accurately, even if you have been working illegally and paying taxes not only through FICA withholding at work but also by filing a return each year (merely paying taxes does not entitle illegal aliens to get this benefit and the Government treats this crime as fraud).  It is also important to remember that if you ever plan to legalize your status this paper trail will come to haunt you.  In other words, if you are illegally in the US and have been taking advantage of Medicare, it is a good idea to hire an attorney immediately to find out what your chances of being caught are.  Also do not file any application to USCIS without a lawyer because this record of theft in government databases might not only make you ineligible for adjustment of status, you maybe charged with a crime.

Application for asylum by legal immigrant after situation deteriorates at home

A lot of aliens enter the United States legally using a valid visa to travel or study or work but then things can change in their native country (this is a lot different than those aliens who escape their countries after things have become tough), as has happened in countries like Tunisia, Libya, Algeria, Egypt, Syria, and Ukraine in recent years.  While the United States Government often creates temporary immigration benefits to citizens of these countries (for example, some kind of temporary protected status or extending their visas without a fee -- read the USCIS website to find out what benefit you may receive), but if it is unsafe for you to return to your native country because you will be punished for your political or religious beliefs or if you will face hardship due to the war or natural disasters, seeking asylum is an option.

What benefits does an asylum provide?  While most asylum applications are denied, those that are approved allow you to live and work legally while your application is being processed.  If approved, you are eligible to apply for a green card in an year, and then for naturalization to a US citizen after five years.  Since there is enormous backlog in the asylum process, many foreigners are able to buy time to live legally in the US while their paperwork is pending.  After that, if their applications are rejected, they can return to their home countries with no negative consequences.  It is also tempting to explore the asylum route since there is massive fraud in the process under which applicants fabricate evidence and tell lies.  There are reports that despite a very low approval rate, most asylum cases are fraudulent.

Things to remember before seeking asylum in America
  1. Apply within one year of arrival in the US unless the American Government creates a special provision for citizens of a specific country.
  2. You cannot apply for asylum in the US if you legally entered another country prior to arriving in the US.  So if you took a vacation in a European country before coming here, it is expected that you should have applied for asylum there and you are telling a lie that your life is genuinely under threat -- it will be assumed that you basically are lying to find a way to stay in the US.
  3. Hire an excellent attorney who specializes in asylum applications.  Do not try to file the application yourself even if you think you are very smart and have excellent education in another field.  Unlike most other applications to the USCIS, asylum cases are extremely complex and are better left to the lawyers who know what to do.  If you do not have the financial means to pay an attorney, get a loan from a friend or family member but don't try to cut corners by filling the application yourself.

Can I naturalize with DUI conviction?

A lot of permanent residents have been arrested and/or convicted for driving under the influence of alcohol even if no accidents happened or it was a one-car accidents.  By the way, my general advice to everyone is not to drink and drive (though, to anyone who is not a citizen, my extreme advice is not to drink till they become citizens because as a non-citizen, you have fewer rights and the ultimate punishment is being thrown out of the United States).  You are not only posing a huge risk to yourself, your own family and others in your car, as well as to other innocent people.  If you are legally able to drink, do so in your own home (hey, it is okay to get wasted once in a while, though, excessive alcohol consumption is bad for health).  If you choose to do so at other people's homes (yes, there are a lot of idiots who let people get drunk in their homes and then let them drive -- I limit alcohol at my party and if someone is too drunk, I offer to let them sleep in my house, and if they insist on going home, I pay for a taxi, and in the worst case scenario of someone getting drunk and then insisting on driving, I simply call the cops on them even if they are my family).  Assuming you want to drink outside your own home, if you are willing to spend money on alcohol, you should spend a bit on getting a taxi as well.  There is also the concept of 'designated drivers' for people who are misers or poor.  The idea is that one individual who knows how to drive and has a valid driver's license agrees not to drink at all or has only one drink so that others can enjoy.  The favor can be returned in kind or even in cash or gift (like paying for this person's dinner).

Immigration status at time of DUI is important:  Now, let us assume that you are stupid and care neither for your life nor for that of others, and you were busted for drunk driving.  Several scenarios are possible when you get stopped for DUI and they all have enormous consequences.  So if you are a non-citizen, the first thing you have to do is to call your immigration attorney in addition to a DUI attorney.  Prior to talking to your attorney, do not say anything because you do have a right to remain silent.  When speaking to the DUI lawyer, disclose your immigration status (pleading guilty in return for a lower sentence can have serious consequences).  Obviously, if there was evidence of alcohol consumption, you will be convicted and penalized in all sorts of ways including jail time, fines, points on license, higher auto insurance rates, and even deportation.  However, if you managed to evade deportation and are otherwise eligible for naturalization, what should you do?

Green card holders with DUI should never apply for citizenship without attorney help:  I repeat, if you have a DWI conviction, do not try DIY naturalization.  Get a good attorney to assist you.  The first thing that makes the case complicated is that DUI laws vary by states.  In addition, the circumstances of your cases will not only influence how you are punished but also what it means at the time of your N-400 decision.  For example, if you have children in your car even if no one was harmed will not please a judge or a USCIS agent.  Needless to add that if you hurt someone or caused an accident or obstructed traffic, no one will treat you kindly.  Such details will be available in police report and court papers, which either you will provide or the USCIS will access on its own.  Another key consideration is if you have other crimes in your history.  Since not every DUI conviction leads to prison time or severe punishment -- many drivers are merely given probation and if they behave the probationary period can be ended earlier -- it does not mean that your naturalization will be denied or your green card revoked and you being deported (by the way, a DUI conviction or even refusal to take a breath test when stopped by police means that even if you manage to get a US passport, you will not be able to travel to Canada and several other countries, even if you have no intention to drive there).  A lot depends on the individual circumstances and how the USCIS views those.  The best way, therefore, is to consult a lawyer even before considering citizenship.

Can the USCIS see my tax records?

I get emails from aliens (both legal and illegal) who have worked illegally (meaning that even if they were lawfully in the count they worked and got paid; this can happen when students or those on spouse visas without employment authorization engage in paid employment, even if it is part time).  The problem is much more widespread among those immigrants who are legally present and also have Social Security numbers.  Many of them take contract work for which they get paid.  Things can get even more complicated when these aliens either out of fear (remember that if someone has paid you for work, most likely they will inform the relevant authorities like IRS and the state government about it) or ignorance or a desire to cheat do not file a tax return reporting the income unlawfully earned.  So what will happen if they apply for another immigration benefit, like permanent resident or citizenship?

  1. While it is morally and legally wrong to engage in illegal activities, if there is no record, you will most likely get away with it, particularly if it is occasional and the amount of payment is small.  The United States authorities has other things to worry about and as a result we have over 12 million undocumented aliens working without authorization.  It does not mean that it is okay to do it just because you are less likely to get caught.  Also note that they would not be able to legalize their status unless their crime is explicitly forgiven in any comprehensive immigration reform.  Unfortunately, such pardons cover only undocumented aliens and if you broke the law while you were legally in the US, you will not be covered by this amnesty.
  2. Whether you are present in the United States lawfully or unlawfully, always report your income to the Internal Revenue Service (IRS).  Even if you are getting paid in cash with no paper trail and the employer is clearly breaking the law by hiring you, it is better to to file a tax return reporting the illegal income than not.  When you face a law enforcement agent, you will be much better off if you paid taxes on illegal income than not only working illegally but not paying Uncle Sam either.  If you do not have a SSN, while it is not meant for illegal workers, you can apply for an ITIN to report your income to the IRS.

  3. Always work with the hypothesis that the USCIS can find out anything and everything about you, particularly from a Federal or State agency.  The Agency also has the legal authority to subpoena any business or individual in the United States to provide information and documents on any alien (a business would most likely collaborate with the authorities rather than defend you and is probably going to blame you for misrepresentation and fraud).  USCIS cannot directly access the data held by IRS and Social Security Administration (SSA) but it has the legal authority to do so.  In other words, if USCIS has doubt that you have worked illegally or not paid taxes or you have hid that information from them (all serious crimes, for which a judge will not have a second thought issuing a warrant), it can find that relatively easily. 
  4. Always assume that when you apply for a visa or adjustment of status or naturalization, the USCIS knows everything about you.  Making an attempt to hide information or telling lies can jeopardize your application, and if you have misrepresented facts at any point, the USCIS can revoke your visa, green card, and even citizenship.  After that not only will you be deported, you will be imprisoned for years before that.
  5. If you have worked illegally or not paid taxes, you are much better off discussing this with your immigration and tax attorneys prior to filing a petition.  It is still easier to admit wrongdoing and taking corrective action (e.g. filing a tax return, amending past taxes, etc.) than hoping that you will not get caught.

Immediate filing of AOS for parents on tourist visa

Andy writes, "My parents arrived on visitor visas last month and within a few weeks I filed for adjustment of status for them since I am a US citizen and would love to have my parents here.  Since I wanted their green cards to arrive before the expiration of their authorized stay on tourist visa, I rushed to do the paperwork, only later on realizing that once the application has been filed and an acknowledgement received, they will be in lawful status till the case is decided.  While researching the same I also came across discussion that I should have waited for at least 90 days to petition them.  What's next?  Will their applications be rejected?  Please help."

The rush with which you filed these immigration petitions makes it appear as if your parents never really intended to visit America as tourists (which, as you very well might know, is the intent of the tourist visa and whether the visitor is asked this question specifically or not either at the time of interview or at the port of entry, that is the implied intent).  Because of the informally used 30/60 day rule, USCIS adjudicating officer will assess that intent of an alien was not leisure travel but to become a permanent resident.  A tough decision maker at USCIS, who follows the rules strictly, will conclude that in order to submit the application, you probably started working on it as soon as they landed because it takes some time to organize all the paperwork and your parents probably brought along with them documents like birth certificates that a typical visitor would not  -- most normal visitors do not just decide to settle in American within days of their arrival; it is a complex decision to abandon your country and make USA your new home (the rule of thumb, as you found out, is to wait at least 90 days after arrival).  So, while a lenient officer might simply ignore all this and give a stamp of approval (knowing that they are most likely elderly and eligible), another agent may deny the application and ask them to seek consular processing after cancelling their visitor visa.  It would be based on the simple logic that when they boarded a flight to America, they intended to stay there permanently (by the way, this is loophole that is so often exploited by immigrants that USCIS agents are fully aware of it).  Immigrants would rather adjust the status right here in the USA than to wait overseas and deal with the nightmare of showing up at US embassies and consulates, which often require long travel and endless waiting in lines.

In addition, if this was their very first trip to the United States of America after receiving their B1/B2 visas, it might be concluded that they engaged in fraudulent misrepresentation to get those visas because they really did not intend to check out the Grand Canyon or Times Square; they basically wanted to take a shortcut to their lawful permanent resident status. In other words, they lied about their intentions to a Consular officer.  Be prepared that this could result in revocation of their visitor visas and denial of adjustment of status.  You could still appeal the decision and hope that an excellent immigration attorney (basically, you are paying the price of not consulting with a lawyer in the first place -- there is a reason why these folks study law) can convince a judge to overturn the rejection.  Alternatively, you can do the paperwork again for them to go through consular processing.

Maintain TPS status in USA after becoming Canadian permanent resident

Carlos writes, "I am in the United States on temporary protected status (TPS) and am in college.  In the meantime, though family, my application to become a permanent resident in Canada has been approved.  Now, I must travel to Canada to land, but I do not want to lose my TPS in the US.  I would prefer to complete my education here and then relocate permanently to Canada to work there.  Can I do this?"

You see, by declaring your intention to permanently immigrate to Canada, you are telling the US Government that your life is no longer in danger and you have a comfortable future ahead of you in Canada.  In other words, you really should not be protected by American taxpayers at all.  In practical terms the way this will work is that as soon as you file the paperwork for advanced parole to leave and reenter the United States from Canada, you will need to disclose the reasons in the USCIS Form I-131.  When you tell them that you intend to travel to Canada to activate your permanent residency there, the US will act to revoke your TPS (do not even attempt to tell lies to the US about the intent of your trip -- for instance, visiting a dying grandma in Canada -- because when you try to re-enter the United States the CBP officer will know immediately from the access to the Canadian database and a stamp in your passport that you are a Canadian permanent resident, you will be denied entry and sent right back to what should really be your future home). 

Your idea is wrong on other grounds as well.  Canadian permanent residents are expected to live in Canada for at least two out of five years, so you will really need to travel frequently to Canada and that will be impossible with TPS in the US which mandates an approval from the USCIS before every overseas visit.  The conclusion is that your best option is to wrap up your affairs in the United States and relocate to Canada.  The TPS is a humanitarian effort that costs American taxpayers a lot of money and by acquiring permanent resident status in Canada, your life is no longer under threat, and you should let other more deserving candidates have the chance to utilize the slot.

Naturalization after tax delinquency

Khosh writes, "During a rather difficult period in my life as a green card holder, I did not file my taxes on time because I had to put food on the table for myself and my family and provide them with a place to live.  Thankfully, after a few years of misery, we survived the ordeal, and I had enough income to live and pay taxes.  I worked with the United States Internal Revenue Service (IRS) to workout a payment plan and for last two years, each month I mail a check to them.  I am now applying for naturalization and wondering if this is somehow going to hurt my chances of approval."

Well, you did the right thing by agreeing to a payment plan and then making timely payments of past taxes.  What USCIS expects is that you will eventually pay every penny you owe to Uncle Sam.  So as long as you show documentation of the agreement with the IRS and record of your payments, along with up to date taxes for years afterwards, you will be approved.  It would not be surprising that this issue is not even mentioned during the interview.  Remember that IRS has ways to collect past due taxes and it is even easier to force citizens to pay, so your approval is very likely.

Cannot find arrest records over 10 years ago for N400

Jason writes, "When I was a teenager over 20 years ago for trespassing for which I was convicted and did community service as punishment.  Naturally, I was not too good with keeping records, and have basically nothing with me related to that incident.  Now, that I am entering my middle age and have finally realized the value of American citizenship, I want to file my N-400 application, but when I asked the court for a copy of my arrest, they told me that they do not have records beyond ten years. What should I do?"

Needless to add that you must disclose your arrest on your application and provide as much detail as possible.  You will also need to attach a copy of the letter that you received from the court that no records can be provided.  Chances are that during your background search, all the details about the arrest and court process will pop up.  So the USCIS officer will be able to see what happened.  In addition, expect to be questioned at length during the naturalization interview about the arrest.  My advice would be that due to this complication (arrest, conviction, and lack of records), you might want to spend the money and hire a good attorney who deals with naturalization cases.

How long to preserve the immigration documents after naturalization?

A lot of immigrants in America end up developing massive folders of documents related to their visas, green card, and finally citizenship.  It is important to understand that till the day you take the oath of citizenship and have the certificate of naturalization in your hands, you can never have too many documents.  In other words, preserve every single document till then.  In fact, many immigrants have found that preserving boarding passes and airline tickets for overseas trips came quite handy.  You have to be the best judge to decide what to save, but if in doubt, just save it.  Keep all your paperwork organized either by type of visa or by year and you will be prepared for the next stage.

What should you do once you are a US citizen?  For almost every citizen, there is no reason to save any document other than the certificate of naturalization, which is the only document you will ever need again to prove that you are an American.  Needless to add that if you have changed your name legally at the time of naturalization, this is another important document.  With these two documents, if you need a passport, you can get it.  No  authority should ask you for any other document.  The old documents can be shredded, though, many immigrants scan digitally or preserve important documents like approval of green card and other visas, just in case (some of these documents might come handy in case of issues related to property ownership, divorce, etc.).  In the worst case scenario, you can get a copy of every single paper submitted to the USCIS by paying a small fee, though, in reality almost all naturalized citizens are not expected to interact with the agency, since it deals primarily with aliens.

What to do with alien documents?  This should be decided on a case-by-case basis and there is no one good answer.  If you are a dual citizen, you will need to decide what to do about the other citizenship.  You must follow the laws and guidelines of the other country you are a national of.  Even if your native country strips you of your citizenship, you should formally renounce the citizenship of that country and save the paperwork.  Other countries insist that you will always be treated as their citizen no matter what.  In that unfortunate situation that you cannot decide your own fate, better save all the relevant paperwork.

Can misdemeanor stop me from becoming US citizen?

Leticia writes, "I have been a good permanent resident except that on one occasion I left a store without paying for some items because the babysitter did not show up and I had to rush home when I got the call in the store.  I did not go to to jail but I did plead guilty to a misdemeanor charge last year.  Can I still be approved for citizenship?  Is there a risk that my green card be revoked?  What should I do?  I have waited patiently for five years to file my N-400 but then this happened.  Please help."

What you did was a huge mistake.  Depending on the state in which you broke the law and what you agreed to in your plea deal means a lot here but it is very likely that an adjudicating officer at the USCIS will most likely deny your naturalization application due to poor moral character.  A safe option would be to wait for another five years from the date of this crime and not break any laws during the meantime, but if you want to pursue your application now, you will need serious legal advice from an excellent lawyer who specializes in citizenship.  He will review your paperwork related to your conviction and advise you.  You can take a chance because you have otherwise been a model permanent resident.  It is unlikely that you GC will be revoked because your crime was not a felony.  So if your application is rejected, you simply lose the fee and all the labor associated with doing the paperwork and attending the fingerprinting and interview.

Importance of unlawful status issues prior to GC for naturalization

Ravindra writes, "I am eligible for naturalization and am otherwise a perfect candidate.  The only minor issue that is bothering me is that before I became a permanent resident, there was a brief period of about six weeks that I did not have a valid H status as I was switching jobs.  Do you think this will be an issue?  Will it come up during the interview?  Since I never voluntarily disclosed this brief gap while my paperwork was being processed, does it mean that I might have provided false information in the past?  Should I hire an attorney to accompany me to the interview?

While the USCIS will look at your complete immigration and criminal history in the United States at the time of reviewing your N-400 application, they also work under the hypothesis that they should instead focus on your life as a permanent resident.  Unless something really stands out, they will typically not dig up past information.  It is generally believed that a thorough examination was already completed at the time of approving your GC.  If this brief lapse was an issue, it would have come up during the adjustment of status process.  Based on the dates that you filed the paperwork, it is probably reasonable to assume that if your file was received prior to expiration of one status, you are under lawful status while a decision is being made.  While you do not need to, but if you think having a lawyer accompany you will give you confidence and peace of mind, it would only be a few hundred dollars and that is so worth it considering what a big difference US citizenship can make.