Department of Homeland Security Breakdown

Department Of

Homeland Security (DHS)

Citizenship & Immigration Service

(CIS) “Good Branch”

naturalization, green cards, work authorization,

Immigration & Customs

Enforcement (ICE) “Bad Branch”

Investigations, Removal, Deportation, Detention

Customs & Border Protection (CBP) Prevents Terrorists & Terrorist Weapons from

Entering the U.S.

Immigration

• Immigration­ the movement of people into a country

• Department of Homeland Security (DHS)­The new agency

into which INS was folded as of March 1, 2003

• United States Citizenship and Immigration Service

(USCIS)­The division of DHS responsible for the “benefits” of

the former INS

• Immigration and Nationality Act (INA)­The code/law that is

used to regulate all immigration matters

Basic Immigration Terminology

• Alien­ Anyone who is not a citizen or national of the U.S.

• Non­immigrant­ Aliens who come to the U.S. for a limited time and

purpose

• Immigrant­ An alien who intends to reside permanently in the U.S.

• Petition­ An immigration form asking for a certain benefit.

• Beneficiary­ The alien on whose behalf a petition for a certain

benefit is being filed.

• Petitioner­ The person requesting that the beneficiary be allowed to

enter the U.S.

• Alien Number­ Special number used to identify an immigrant alien

Seeking Relief Through Appeals

If the alien does not like the Judge’s opinion, he may appeal to the Board of Immigration Appeals (BIA) within 30 days v The BIA will not hear new testimony. v The BIA is an administrative appellate body that is part

of the U.S. Department of Justice. v BIA decisions are the final administrative action in a

given case. v The next stage of appeal after a BIA decision is usually

in the U.S. Court of Appeals, if an appeal is allowed by statute.

v The BIA is located in Falls Church, Virginia, and comprises 11 Board Members, who are administrative judges appointed by the U.S. Attorney General.

Immigration Reform and Control Act (IRCA)

• The IRCA makes it unlawful for an employer to “knowingly” hire, recruit, refer for a fee, or continue to employ any alien not authorized to work in the U.S.

• The knowledge requirement is based on either indirect or circumstantial evidence.

• For an alien to be authorized, he must be 1) lawfully admitted for permanent residence or 2) authorized for employment.

INA Act of 1990 Employer Conditions

1. Employers cannot request more or different documents than those required under the antidiscrimination provision of the INA Act as proof of identification from an alien worker (see page 369­370 in your text)

2. Employers cannot knowingly use, attempt to use, possess, obtain, accept, or receive forged, altered, or false documents from potential alien employees.

3. Employers cannot falsely backdate form I­9 (page 369 text).

4. Employers must make sure employees accurately complete section 1 of the I­9 form.

5. Employers must examine original documents prsented by the employee and complete section 2 of the I­9.

Record Keeping Completed and signed I­9 forms must be kept for 3 years after the date of hire or 1 year after termination of employment, whichever is later.

• TN (Trade NAFTA) status is a special non­immigration status unique to citizens of the United States, Canada, and Mexico.

• TN status was created by virtue of the 1994 North American Free Trade Agreement (NAFTA). It allows American, Canadian and Mexican citizens the opportunity to work in the United States or Canada under a limited set of occupations.

• Within the TN set of occupations, an American, Canadian or Mexican can work for up to a year at a time (this is in the process of being extended to three years). The TN status may be renewed indefinitely in one­year increments.

• In the event of a job termination, the individual must permanently leave the United States within 10 days from the last day of employment or the last day TN visa expires (which ever is less).

TN Visa: Canadian and Mexican Citizens

TN Visa: Canadian and Mexican Citizens

• Documents Required • Proof of Canadian or Mexican Citizenship • Statement Explaining the Job Position • University or post­graduate degree and license; if required • Resume • Passport • Current Passport (Canadians can provide birth certificate

instead) • Credential Evaluation if the degree if foreign (except if the

degrees are from Canada, Mexico, or the United States) • Non­Immigrant Visa Application (Mexicans Only)

B­1 and B­2 Visas

B­1 The alien is visiting the U.S. for business purposes. Ex: contract negotiation, litigation.

B­2 Visits : • Tourist • Visiting Friends/Relatives • Medical Treatment • Conference or convention of social or fraternal organization • Short Course of Study Incidental to Tourist or Social Activities • Amateur Entertainers or Athletes competing without payment

B­1 and B­2, Alien must show: 1. He is not abandoning his residence abroad 2. He has sufficient funds for the visit

“E” Visa Categories

An E­1 Visa visitor is someone: • Entitled to enter the United States under the provisions of a treaty

between the United States and the foreign state of which he or she is a national.

• The visitor is coming to the U.S. solely to carry on trade of a substantial nature, including trade in services or trade in technology.

• The E2 Investor Visa allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States.

• Investment must be "substantial." There is no minimum amount, but generally speaking, $150,000 invested in the US is considered substantial.

• An investor must "contribute" to the US economy. (Setting up a small shop alone is not enough.)

• The investor must hire US citizens or residents. Generally, two employees are sufficient.

F & M Visa Categories

F­1 Visa

• Issued to individuals to attend colleges/universities/language institutes

• The F­1 visa is the most common type of student visa in the United States. – The "F" visa is reserved for nonimmigrants wishing to pursue academic studies and/or language training programs. – F1 visa is given only through "academic" institutions.

• The student must show that he/she has: – A full course of study (at least 18 hours) – Proficiency in English – Financial Ability

M Visa • Used for an approved course of study leading to a specific

educational or vocational objective.

H Visas

• H1­B Visa • Worker must have a Bachelor’s Degree or years of work experience

that is the equivalent of having the degree. Ex: lawyers, engineers, doctors, nurses, scientists.

• H­2B­Unskilled Foreign Worker • Individual can work temporarily in the U.S. to fill an offered position

that does not require any specific studies or experience • One­time need based on low U.S. worker availability or seasonal

needs.

• H­3 Visa (Trainee) • An individual may come to the U.S. to receive a certain type of

instruction and training that is not available in his or her country. • The training must be necessary for the individual to use their skills

in their native country.

L VISAS • An L­1 visa is a visa document used to enter the United States for the purpose

of work in L­1 status. • It is a non immigrant visa, and is valid for a relatively short amount of time ­

generally three years. • L­1 visas are available to employees of an international company with offices in

both a home country and the United States, or which intend to open a new office in the United States while maintaining their home country interests.

• The visa allows foreign workers to relocate to the corporation's US office after having worked abroad continuously for the company for at least one year prior to being granted L­1 status.

• The US office must be a parent company, child company, or sister company to the foreign company.

L1A • Allows an intracompany executive or manager to come to the U.S. to establish a

new business. • The employee who is transferring must be acting in a managerial or executive

capacity with the company. L1B • Allows a person with a specialized knowledge to come to the U.S. to work for a

qualifying U.S. Company.

O, P, & Q VISAS

O VISA • The O­1 visa is a non­immigrant employment­based visa issued to the

foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics.

P VISAS P1­Athlete & Athletic Team & Entertainment Group • Internationally recognized athlete performing at a specific athletic event. P2­Artist & Entertainment Reciprocal Exchange • The artist or entertainer is under a reciprocal exchange program between

the U.S. and foreign organization P3­Artist & Entertainer Integral to Performance • The artist or entertainer’s performance, teaching, or coaching is integral to

the performance of a group performing under a commercial or non­ commercial program that is culturally unique.

Q VISA • Individual entering the U.S. to obtain practical training, employment and the

sharing of history, culture, philosophy and tradition of the alien’s home country.

Derivative Visas & Permanent Resident Visas

Derivative Visas Given to the immediate family members (spouses & minor children) of aliens who have been classified as nonimmigrant visa holders in other categories of visas. EX: The family (spouse and kids under 21) of an M Visa holder can

apply for an M2 visa (derivative) to accompany the M Visa holder to the U.S

Permanent Resident Visas Employers who wish to hire outstanding professors and researchers, Certain multinational executives and managers, skilled workers, professionals, advanced degree professionals, or aliens of exceptional Ability may petition the Attorney General for a permanent resident

visa

U.S. Citizenship & Naturalization

Brief History

• Naturalization is the legal process of acquiring citizenship different from that person's citizenship at birth.

• To be 'naturalized' means to become as if "natural born" ­­ i.e. a citizen.

• The 14 th Amendment states that "all persons born or naturalized in the United States and subject to the jurisdiction thereof shall be citizens of the United States and of the State in which they reside."

• The Naturalization Act of 1795 set the initial parameters on naturalization: “free, White persons' who had been resident for five years or more”

• An 1862 law allowed honorably discharged Army veterans of any war to petition for naturalization, without having filed a declaration of intent, after only one year of residence in the United States.

U.S. Citizenship

No person shall be naturalized unless he/she is/has: 1. Been a LPR for at least 5 years 2. Been a LPR for at least 3 years & has been married to & living with

the same U.S. citizen for the last 3 years, and the spouse has been a U.S. Citizen for the last 3 years

3. A member of the U.S. Armed Forces & is a LPR with at least 3 years of U.S. Armed Forces service being on active duty or filing within 6 months of honorable discharge

4. Served during a period of recognized hostilities & enlisted or re­ enlisted (no LPR requirement)

5. Resided continuously as a LPR resident in the U.S. for a least 5 years prior to filing (3 years if married to a U.S. citizen)

U.S. Citizenship

Substantive Requirements for Naturalization 1. Physical presence in the U.S. for at least half the time

of permanent residency; 2. Good moral character; 3. Basic knowledge of U.S. government & history as

determined by passing civics test; 4. Ability to read, write & speak simple English; 5. 18 years of age 6. As a minor, being in the custody of at least 1 parent

who becomes a citizen, which often confers automatic citizenship;

7. Legal competence to take the citizenship oath; and 8. Expressed allegiance to the U.S. government

Bars to Naturalization

An Applicant will not be of good moral character if in the last 5 years he/she: 1. Has committed & been convicted of 1 or more crimes involving moral

turpitude 2. Has been convicted for 2 or more offenses that have a sentence total of 5

years or more 3. Has been convicted of having a controlled substance 4. Has committed 2 or more gambling offenses 5. Is/Was involved in prostitution or commercialized evils 6. Has smuggled illegal aliens into the U.S. 7. Is/Was practicing polygamy 8. Has willfully failed or refused to support dependents 9. Has failed to register with the selective service 10. Is/Has been a member of the communist party 11. Has given false testimony, under oath, to receive benefits under the INA

Safety Regulations in Employment

Workers’ Compensation • The purpose of workers’ compensation is to require the employer to

provide coverage for compensation and medical expenses for employees, regardless of fault, for work­related injuries or illness, and the employer in turn cannot be sued under a negligence claim.

• OSHA covers all nonpublic employers who employ one or more persons full or part­time permanent or temporary.

• All employees (executives & managers included) are protected by OSHA.

• The general duty clause under OSHA requires the employer to give each employee employment and a place of employment free from recognizable hazards that cause or are likely to cause death or serious physical harm to the employee.

Safety Regulations in Employment

• DOL –OSHA is authorized to conduct on­site inspections without advance notice, and to issue subpoenas for records or testimony to determine whether employers are in compliance with specific OSHA standards.

• An employer can refuse to allow an inspector to conduct on­site inspections. If this happens, OSHA must get an administrative search warrant from a court.

• OSHA requires an employer to certify in writing that safety or health hazard violations listed in any citations that the employer receives have been corrected.

• Website: http://www.osha.gov

Safety Regulations in Employment

Employer defenses to OSHA citations 1. Physical impossibility of compliance;

2. No violation or no health or safety hazard;

3. “greater hazard” defense;

4. De minimis violation;

5. Vague or ambiguous standard; improperly communicated standard; or non­mandatory standard;

6. Employee misconduct;

7. Citation Untimely Issued.

Safety Regulations in Employment

Compensable Workers’ Compensation Injuries • A compensable injury or illness “must arise out of or in the course

of employment.” • The compensable injury must occur within the time of the

employment, within the physical boundaries of the workplace, and must be work­related.

• Injuries that occur while traveling to and from work are not compensable.

• Injuries resulting from “horseplay, intoxication, or violation of safety rules” are not compensable.

Safety Regulations in Employment

Temporary Disability­ A worker is still receiving medical care and has not reached maximum medical improvement.

MMI­ he best the worker will ever be given his or her injury.

Temporary Total Disability Benefits­ benefits received for the period of time the worker is incapable of doing any type of employment and the employee is still recovering from injuries.

Temporary partial disability benefits­ benefits received when an Employee is recovering from an injury and can return to some type of work but not full duty, and thus gets an actual wage loss.

Permanent Partial Disability benefits­ benefits paid based on any residual Medical impairment after MMI.

Permanent Total Disability­ the compensation awarded to an employee who, because of injuries, can perform no service for which any reasonable job market exists.