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Thursday, January 21, 2016

5 Myths about Immigrants

Immigrants don't want to become citizens.

The number of eligible immigrants submitting citizenship applications continues to increase. Due to huge backlogs in the system, the majority of applicants must wait years to hear a decision. Several factors determine an immigrant's eligibility, and meeting all of the requirements is not easy. In order to apply for naturalization, immigrants must pass background checks, verify they have paid their taxes, take a U.S. history and civics test, and prove they have resided in the United States (with lawful permanent resident status) for five years, among other regulations. In fact, only 7 percent of Hispanic immigrants surveyed as part of a Pew Hispanic Center study said they didn't want to become citizens.

Immigrants Won't Learn English.

Immigrants to the U.S. may not speak fluent English right away, but polls show that after 15 years, 75 percent of first generation immigrants speak English proficiently. The ability to speak the language increases significantly with succeeding generations: 91 percent and 97 percent of second and third generation immigrant families, respectively, speak English.

Immigrants don't pay taxes.

Despite the fact that most immigrants are unable to benefit from federal and federal-state assistance programs, the majority pay income tax or have taxes withheld from their paychecks; all immigrants pay sales and property taxes. Both legal and undocumented immigrants can't claim social security benefits, a tax refund or other welfare benefits.

Immigrants bring crime to the areas in which they settle.

Reliable statistics on the activities of undocumented immigrants are hard to find, but a recent study by the National Bureau of Economic Research found that newly arrived immigrants are particularly unlikely to be involved in crime. This may stem from an immigrant's drive to find (and keep) work and avoid being deported, as well as their desire to become a naturalized citizen.

Most Immigrants are undocumented and have crossed the border illegally.

Those who believe the aforementioned myth may be surprised to learn that two-thirds of immigrants are either naturalized citizens or have obtained some kind of lawful status, according to the American Civil Liberties Union (ACLU) https://www.aclu.org/. Nearly half of all undocumented immigrants entered the U.S. on temporary visas as students, tourists or workers, and are considered undocumented only because their visas expired and they didn't leave the country. Pew Hispanic Center statistics state that one third of all immigrants are undocumented, one third have some form of legal status and one third are naturalized citizens. This applies to immigrants from Latin America as well as those from other parts of the world.  If you need legal assistance, call us now for your complimentary initial in-office consultation, Franz Cobos, Esq.


Tuesday, January 12, 2016

Criminal Charges and How they Affect Non-Citizens

Non citizens who have been charged with a crime, have two sets of problems to worry about: the criminal charges, and how those charges might affect their immigration status.

Unfortunately for non-U.S. citizens, a conviction or a guilty plea to a felony, or some misdemeanors, can lead to deportation. The Illegal Immigration Reform and Immigrant Responsibility Act expanded the list of felony convictions that can lead to deportation. The law not only affects those charged with felonies but also extends to those non-citizens who are convicted of two or more misdemeanors who may be deported as a result of the crimes. Criminal convictions can also affect one’s application to become a U.S. citizen.

The severity of the consequences is dependent upon how the crime is classified.  Aggravated felonies and crimes of “moral turpitude” can lead to immediate deportation. Some crimes, such as shoplifting, can also be classified as crimes of moral turpitude, since they involve dishonesty.

Therefore, it’s critical that non-U.S. citizens who are charged with a crime contact an attorney for advice regarding his or her legal status before pleading guilty or going to trial on any criminal charge.  The attorney must be informed of the defendant’s immigration status at the first meeting so the attorney can properly defend against both criminal as well as immigration consequences of a conviction.  Call us now for your complimentary in-office consultation.  We have the expertise to assist you, Franz Cobos, Esq.


Tuesday, January 5, 2016

Common Lawsuits Brought Against Small Businesses

It is impossible to predict every lawsuit that a small business might possibly face. There is nothing to prevent angry vendors, entitled customers, or disgruntled employees from filing a lawsuit, even if there is no legitimate basis for it. The more a business owner delegates responsibilities to employees, the greater the risk that an employee makes a mistake and exposes the business to a lawsuit. Even the most vigilant, hands on business owner is bound to make a mistake that can lead to a complaint filed against the business.

The most common lawsuits brought against businesses are wrongful termination suits brought by employees or candidates who have suffered a negative employment action. This can be anything from being fired to being demoted or even passed over for an advancement opportunity. If the employee or candidate believes that the action was taken for a reason related to race, gender, religion, identity, or another protected classification, that employee might file a lawsuit. For this reason, it is important to document any sort of negative or positive behaviors at work, so that if an employee does complain of discrimination, the courts can see the employee’s work history and the real reason why he or she may have been passed over for a promotion. Disparaging remarks made about any of these protected classes have no business in a work place as they can create a hostile work environment and lead to lawsuits as well.

Many employers choose to save money by denying their employees overtime pay. This can create many extra costs, as employees will sue for the money they are owed, and the legal fees can be significant. It is a good idea to have contracts establishing the boundaries of a relationship between an employer and an employee to minimize confusion.

It also makes sense to put agreements with vendors and customers in writing. The contracts should include a general description of the work to be performed, a list of any items to be delivered, a project schedule with deadlines, the fee, and the circumstances under which additional fees might be charged, warranties included with the work, how long the contract lasts, how it can be terminated, and how disputes will be resolved.

Personal injury lawsuits against businesses are also common, so it is important to make sure that a place of business is kept in safe condition. Floors should always be dry and warnings should be presented to customers of any dangerous conditions. Drivers should be selected carefully as any accident they cause can be made the responsibility of the business that employs them. Employees who are injured at work are usually precluded from suing their employer and are instead referred to worker’s compensation courts which have their own legal fees. Most states require employers to carry insurance in case of a workplace injury.  If you own a small business and need our legal assistance, call us today for your complimentary in-office initial consultation, Franz Cobos, Esq.


Tuesday, December 29, 2015

Adopting a Grown-Up: Top Three Reasons for Adult Adoption

While the vast majority of adoptions involve adults adopting children, all states have laws that permit “adult adoption,” in which a person 18 or older is adopted by another adult as mutually agreed by the parties. Some states may restrict adult adoptions to cases where the person being adopted is of diminished capacity. If the person being adopted is married, some states require the spouse to consent. Other states simply require the two adults to consent to the adoption.

Why would an adult want to be adopted?

There are typically three reasons why adults choose to adopt another adult. The most common reason is inheritance. Whether it takes place when the adopted party is a child or an adult, the adoption creates a legally recognized parent-child relationship, enabling the adoptive child to inherit property from the adoptive parents in accordance with state law.

Secondly, adult adoptions can be used to formalize a parent-child relationship. For example, there may have previously existed a stepparent-stepchild, or foster parent-foster child relationship, and the adult parties now wish to formally recognize the relationship.

Finally, adult adoption can help ensure perpetual care for a person of diminished capacity. Formally adopting the adult with special needs may enable him or her to qualify for lifetime care under family insurance, and can help ensure assets pass to the adoptive child.

As with any traditional adoption of a minor child, an adult adoption triggers several significant, legal changes. When the adoption is finalized, the parental relationship with the biological parents is severed, and a new parent-child relationship is created. A new birth certificate will be issued, bearing the adoptive parents’ names, and the adoptive child may change his or her last name to that of the adoptive parents.  Call us for your complimentary initial consultation, we here to assist you, Franz Cobos, Esq.


Thursday, December 24, 2015

When Is It OK to Fire an At-Will Employee?

The overwhelming majority of employees are considered to be at-will employees. If an employee works without a contract stating otherwise, that person’s employment is considered at- will for its duration. This means that the person serves at-will and either party may terminate the employment at any time. Even though an explanation is not always given as to why an employee is being fired, there are still some reasons for termination that are unacceptable in the eyes of the law. It is important to be aware of these instances to avoid the appearance of improper behavior and the potential for economic repercussions  as a result.

Termination is not the only action that may be actionable. Under specific circumstances, an employee is permitted to file a claim against an employer for any negative employment actions, including cutting back available hours, pay reductions, or demotions in title. Any negative employment action may give rise to a lawsuit if the employee can prove that the basis of the negative employment action is improper or discriminatory.

Federal law prohibits discrimination against employees on the basis of race, gender, national origin, disability, religion, genetic information, or age, if the employee is over the age of 40. Many states add additional protections including protection from discrimination against employees due to sexual orientation or gender identity.

Other restrictions against firing or other actions that negatively affect job status also exist. It is illegal to fire someone one, or otherwise negatively affect their employment, in retaliation for their filing of a legal claim, whether for discrimination, sexual harassment, or workers compensation. An employer also may not use a person’s ability to work as an incentive to force him or her to take a lie detector test. No individual can be legally fired for complaining about OSHA violations, for refusing to commit an illegal act, or for reporting an illegal act committed by a co-worker or employer (whistle blowing). If an employee exercises a legal right, like voting or taking family leave based on the Family Medical Leave Act, he or she cannot legally be fired for the lost time.

Terminating or otherwise negatively affecting an individual's employment because of any of the above-mentioned events is illegal. Employers should go out of their way not to fire employees contemporaneously with such events, even for other causes, since this may give the appearance of impropriety,and potentially provoke an expensive lawsuit.  If you are a business owner facing such a claim or lawsuit, we can help.  Call now for your complimentary initial consultation, Franz Cobos, Esq.


Wednesday, December 23, 2015

Extreme Hardship Waivers: When Can They Assist in Overcoming Immigration Challenges?

 Individuals wishing to enter and reside in the United States may be able to file an extreme hardship waiver with the U.S. Citizenship and Immigration Services (USCIS) to overcome challenges that would normally bar entrance. Perhaps counter-intuitively, extreme hardship waivers do not involve hardships faced by the individual entering the U.S. Instead, they involve the hardships that would be experienced by a citizen or lawful permanent resident who is already in the U.S. if a person outside the U.S. were barred from entry. The hardship must be proved in two parts: 

  1. The citizen or resident must prove that he or she will experience extreme hardship within the U.S. if the foreign individual is not allowed to enter the U.S.
  2. The citizen or resident must prove that he or she will also experience extreme hardship if he or she must move to the foreign individual’s country because the applicant is not allowed to enter the U.S.

The resident or citizen is most often the child, parent, spouse or fiancé of the person outside the U.S.

What Sorts of Hardships Experienced Within the U.S. Can Lead to the Approval of an Extreme Hardship Waiver?

The USCIS needs to be informed of the specific hardships the citizen or lawful permanent resident will face if 1) a foreign national isn’t allowed to enter the U.S., and 2) to the citizen or resident remains in the U.S. Hardships in this category that the USCIS often approves include:

  • Loss of financial support that the citizen or resident would have received from the alien had he or she been allowed to enter the U.S.
  • Loss of support and subsequent care required by the citizen or resident in the event of a medical emergency
  • Mental health issues on the part of the citizen or resident that would be exacerbated if the alien is not allowed to enter the U.S.


What Sorts of Hardships Experienced Outside the U.S. Can Lead to the Approval of an Extreme Hardship Waiver?

The USCIS will also want to know what kind of hardships the citizen or lawful permanent resident will face if he or she is forced to leave the U.S. and join the alien in his or her country, if the alien isn’t allowed to enter the U.S. Hardships in this category that the USCIS often approves include:
 

  • Difficulty adjusting to a new country
  • Lack of educational, medical and financial resources in the foreign country
  • Lack of health insurance in the foreign country
  • Mental health issues on the part of the citizen or resident that would be exacerbated if he or she is forced to leave the U.S.

Another hardship that can result and that the USCIS may consider is the loss of a “pillar of the community” in the U.S. if the citizen or resident leaves the U.S.

Why Can’t the Applicant Simply Enter the U.S. Via Normal Channels?

Extreme hardship waivers are intended for use by individuals who face various barriers to entry to the U.S. that extend beyond the usual difficulties that immigration and entry most often involve. These barriers can result from:

  • A crime committed in the U.S.
  • Failure to disclose an expunged crime committed in the U.S.
  • A lie told in an interview with a U.S. immigration official
  • A previous record of illegally entering or leaving the U.S.
  • Marital status fraud

When applying for an extreme hardship waiver, you may need to use tax, health, criminal, loan and other documents to prove hardship. To ensure your best chance of approval, we can handle this matter for you.  Call us now for your complimentary initial consultation, Franz Cobos, Esq.

 


Monday, November 23, 2015

When Will an Immigrant Be Barred from Entry Because of a Connection to Terrorism?

Section 212 of the Immigration and Nationality Act (INA) bars individuals from entry in the United States for a variety of reasons.  These include terrorism-related inadmissibility grounds (TRIG). 

Regardless of whether a person is coming to the U.S for tourism or employment, and regardless of whether he or she has married a U.S. citizen or won a visa lottery, TRIG may bar entry completely.

Types of Terrorism-Related Activities That May Be Covered

Terrorism-related activities include some that are violent and illegal, others that involve association with and support of causes or people involved in terrorism.  For example, a person who engages in terrorist acts, who has received military training from a terrorist organization, who has incited terrorist activity, or who has endorsed or espoused terrorism would be inadmissible.  So too would a spouse or child of anyone who engaged in terrorist activity during the preceding five years.

The INA's definition of terrorist activity covers various types of sabotage, assassination, kidnapping, hijacking, and other acts commonly associated with terror. 

"Engaging in Terrorist Activity" can involve planning and carrying out a terrorist act, but it can also be recruiting others to act, providing support, fundraising, or other help.  Providing a safe house, transportation or fake documents might constitute material support of a terrorist group.  So would feeding members of the group, distributing literature, or making a modest financial contribution.

Categories of Terrorist Organizations

Terrorist organizations are divided into three tiers:

  • Tier I includes Foreign Terrorist Organizations  (FTO) that threaten the security of the U.S. or U.S. citizens. 
  • Tier II includes groups on the Terrorist Exclusion List (TEL).  These are organizations that carry out or provide material support for terrorist acts that are unlawful under U.S. law or the laws of another country.
  • Tier III involves groups of two or more, organized or not, that are engaged in terrorist activity.  A less formal designation than the others, Tier III changes from time to time and determinations of who is affected are made on a case-by-case basis.

Exemptions

The Secretary of State and the Secretary of Homeland Security can exempt some individuals from TRIG.  Exemptions have been issued to people who acted under duress, to people who provided voluntary medical care, and to selected individuals with existing immigration benefits.  Because the definition of terrorist activity is broad, potentially encompassing freedom fighters, group exemptions have been given to a number of organizations ranging from the All Burma Students Democratic Front to the Democratic Movement for the Liberation of Eritrean Kunama.

Being involved in terrorism is a serious matter and can have an effect on the ability to obtain U.S. citizenship.  For more information regarding TRIG or if you think you might be exempt from exclusion, contact us today.  Franz Cobos, Esq.


Saturday, November 21, 2015

Form I-9 Inspections

The Immigration and Nationality Act (INA) requires employers to verify the identity of their employees and their eligibility to work in the U.S.  To comply, employers must retain original I-9 Forms for current employees and, for former employees, keep them for at least three years.  These need not be submitted to the government but must be available for inspection.  From time to time, U.S. Immigration and Customs Enforcement (ICE) ask to inspect the forms. 

What Does an Inspection Entail?

An employer who receives a Notice of Inspection must produce its I-9s, usually within 3 business days, and may be asked for payroll records, employee lists, articles of incorporation, and business licenses.  ICE may ask the employer to bring the documents to an ICE field office, or officials may visit the employer.  At the inspection, in addition to printed documents, the employer must retrieve any electronically stored documents requested and provide the ICE officer with the hardware and software needed to view them.  The employer must also provide an electronic summary of information in the I-9s, if one exists.

What Happens Afterwards?

After reviewing the I-9s, ICE may send the employer one or more of the following:

  • Notice of Inspection Results, also known as a compliance letter, informing a business that it is in compliance. 
  • Notice of Discrepancies, informing the employer of problems with the employer's I-9s and documents submitted by the employee.  The employer must provide a copy of the notice to the employee, who then must prove to ICE that he or she is eligible to work.
  • Notice of Technical or Procedural Failures, listing technical violations and giving the employer ten business days to correct them.  If not corrected in time, these failures may become "substantive "violations."
  • Notice of Suspect Documents, stating that ICE has found an employee unauthorized to work.  The employer must terminate the employee or face penalties.  ICE gives the employer and employee an opportunity to show that this finding is in error.
  • Warning Notice, notifying the employer that there are substantive verification violations, but that the circumstances do not warrant a fine.
  • Notice of Intent to Fine (NIF), informing an employer that it has been found to have knowingly hired and employed ineligible workers.  The employer must cease and may face fines and criminal sanctions.  An NIF may also be sent for technical errors that an employer failed to correct.

What If ICE Decides to Fine an Employer for Violations?

In response to an NIF, employers may seek a hearing before an Administrative Hearing Officer or try to reach a settlement with ICE.  If an employer does nothing, ICE will issue a Final Order.

Civil fines can be as low as $110 and as high as $1,100 for each employee, depending on mitigating and aggravating factors.  Serious violations may also lead to prosecution for knowingly hiring unauthorized workers, document fraud, harboring, and other crimes.  With the high stakes involved in being accused of I-9 violations, it is best to contact us to discuss the matter as early as possible.  Franz Cobos, Esq.

 


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