Winter, 2012
Deferred Action for Childhood Arrivals
The U.S. Department of Homeland Security began accepting applications on Wednesday, August 15, 2012 for "deferred action" from young people who were brought to the United States as children and meet certain additional requirements. Those individuals who are approved for deferred action will be not be deported and may apply for employment authorization, as long as they can demonstrate an economic necessity for their employment.
Deferred action is a discretionary decision made by the Department of Homeland Security (DHS) not to pursue enforcement against a person for a specific period. Deferred action does not confer lawful status upon an individual, and does not provide individuals with a path to citizenship or lawful permanent resident status.
Who qualifies for deferred action?
To qualify for the program, an individual must:
- have arrived in the United States when they were under the age of sixteen;
- have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012;
- currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
- not have been convicted of a felony offense, a "significant misdemeanor offense," three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
- have been under thirty-one years old on June 15, 2012.
Individuals must also complete a background check and, for those people who affirmatively request deferred action (that is, people who are not already in removal proceedings), must be at least fifteen years old.
Deferred action will be available to individuals who are currently in removal proceedings, those with final orders of removal, and those who apply affirmatively.
How do I apply for deferred action?
Starting on August 15, 2012, affirmative applicants for deferred action will apply for the program by submitting Form I-821D, supporting documentation that shows that the applicant meets the eligibility criteria set forth above, Form I-765, and Form I-765WS (the applications for employment authorization),and a check or money order for $465 to cover the filing fee (the $465 fee includes a $380 fee for employment authorization and $85 for biometrics). All applicants must have their biometrics (fingerprints and photograph) taken; these will be used to conduct a criminal background check. USCIS will notify applicants in writing if it requires more information or evidence, or if an interview will be required. As always, applicants will be able to track the status of their applications on the USCIS website and will receive a written decision from USCIS.
What should I do next?
If you think that you may qualify for deferred action, we recommend that you talk to an experienced immigration attorney to see if you are a good candidate for the program. If you decide to pursue deferred action, you should work with your attorney to assemble the documentation that you will need for your application. This will include evidence that you meet the educational requirements, and that you have been in the United States for the necessary period. School records will be especially helpful in this regard. If you have ever been convicted of a crime, you should get a certified copy of the final disposition of the case and take it to your attorney for advice. Finally, we recommend that you avoid "notarios" or other so-called "immigration consultants" who may promise more than they can deliver.
New Filing Option For Canadian TN Applicants
There is a new filing option for Canadians who wish to apply for TN status. Starting October 1, 2012, USCIS will accept the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as TN nonimmigrants. Until recently, USCIS only permitted employers to file I-129 petitions in connection with a request to extend a current TN holder’s stay in the United States or to change an individual’s nonimmigrant status to that of a TN. Canadians residing outside the United States were required to apply for TN status at the border or at a pre-clearance/pre-flight station.
Canadian citizens will continue to have the option of applying for TN status at a U.S. port of entry. The new rule simply allows applicants to have a choice: they can either have their employers file a petition with USCIS in advance, obtain an approval notice, and present that approval notice at the port of entry (together with all supporting documentation), or they can follow the old procedure and appear at the port of entry with no advance approval (but with all supporting documentation) to apply for TN status.
Presumably, the new procedure will benefit those Canadians whose cases are more complex. The border officials will no longer be conducting the initial review and making a decision based on documents that have not been screened by other officials. Instead, applicants will be presenting border officials with a USCIS approval notice. Hopefully, the border officials will defer to the USCIS decision in most cases, making the process easier for Canadians seeking to enter the United States in TN status.
The Trade NAFTA (TN) classification was created by the North American Free Trade Agreement (NAFTA) to facilitate the entry of Mexican and Canadian citizens to the United States for employment on a temporary basis. TN status is available to professionals from Mexico and Canada who meet the following criteria:
- The applicant must be a citizen of Mexico or Canada;
- The applicant’s profession is on the NAFTA list;
- The position being offered to the applicant requires a NAFTA professional;
- The applicant will be working in a pre-arranged full-time or part-time job (self-employment is not permitted);
- The applicant possesses the qualifications of the profession.
Additional information on the TN classification is available on the USCIS website, www.uscis.gov/tps, and on the U.S. Customs and Border Protection website, www.cbp.gov.
Finally, please note that while Mexican citizens remain eligible for TN status, they are not affected by the new rules described above.
Do's and Dont's: Social Security No Match Letters
From time to time, the Social Security Administration (SSA) sends notices to employers that list the names of employees for whom information submitted (typically on an employee wage report) does not match Social Security records. These are called "no match" letters. If you are an employer, what should you do if you receive a social security no match letter?
- DO pay attention to no match letters. Instruct your human resources department not to disregard them.
- DON'T assume that an employee is "illegal" based on the receipt of a no match letter. There are several reasons for gettting a no match letter, many of which have nothing to do with a person's immigration status or authorization to work. For example, the individual's name may have been keyed into a wage report incorrectly, giving rise to the letter. As a result, employers should not take adverse action against an employee simply because the employee is the subject of a no match letter. Indeed, such action could subject the employer to liability under the anti-discrimination provisions of the Immigration and Nationality Act.
- DO make sure that you treat all employees for whom a no match letter has been received in a consistent manner.
- If you receive a no match letter regarding an employee, DO make sure that the designated company representative first checks the company's records to determine if the discrepancy results from a typographical, transcription, or clerical error. If there is such an error, the representative must correct it and inform the SSA.
- If the discrepancy is not the result of an error in the company's records, DO make sure that the designated company official requests, in writing, that the employee confirm the accuracy of the company's records and advise the employee to resolve the discrepancy with the SSA within 90 days of the company's receipt of the letter.
- If the employee resolves the discrepancy, DO correct the information with SSA and retain a copy of the verification from SSA.
- If the discrepancy cannot be resolved within 90 days, DO complete a new Form I-9 within 3 days, without using the questionable social security number and instead using other acceptable documents, including one document that contains a photograph.
- If you are unable to confirm the employee's work authorization using these procedures, DO terminate the employee or risk liability for continuing to employ an unauthorized worker.
The rules regarding no match letters are still in flux and can get rather complicated. You must balance your obligations not to engage in unlawful discrimination with the rules that prohibit unauthorized employment. This means that you must give your human resources personnel clear guidance about how to respond if they receive a no match letter.
We recommend that all employers develop a policy for dealing with social security no match letters. The Shpigler Law Firm has assisted a number of employers in developing these policies. Feel free to contact us if you would like more information about our services.
This Immigration Bulletin is not intended as a substitute for professional legal advice.
Debra R. Shpigler is a member of the American Immigration Lawyers Association.
