Department of Homeland Security Breakdown

Transcription

1 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.

2 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

3 Basic Immigration Terminology Alien Anyone who is not a citizen or national of the U.S. Non immigrant 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

4 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 The BIA will not hear new testimony. The BIA is an administrative appellate body that is part of the U.S. Department of Justice. BIA decisions are the final administrative action in a given case. 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. The BIA is located in Falls Church, Virginia, and comprises 11 Board Members, who are administrative judges appointed by the U.S. Attorney General.

5 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.

6 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 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 I 9 (page 369 text). 4. Employers must make sure employees accurately complete section 1 of the I 9 form. 5. Employers must examine original documents prsented by the employee and complete section 2 of the I 9. Record Keeping Completed and signed I 9 forms must be kept for 3 years after the date of hire or 1 year after termination of employment, whichever is later.

7 TN Visa: Canadian and Mexican Citizens TN (Trade NAFTA) status is a special non immigration 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 one year 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).

8 TN Visa: Canadian and Mexican Citizens Documents Required Proof of Canadian or Mexican Citizenship Statement Explaining the Job Position University or post graduate 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) Non Immigrant Visa Application (Mexicans Only)

9 B 1 and B 2 Visas B 1 The alien is visiting the U.S. for business purposes. Ex: contract negotiation, litigation. B 2 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 B 1 and B 2, Alien must show: 1. He is not abandoning his residence abroad 2. He has sufficient funds for the visit

10 E Visa Categories An E 1 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.

11 F & M Visa Categories F 1 Visa Issued to individuals to attend colleges/universities/language institutes The F 1 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.

12 H Visas H1 B 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. H 2B Unskilled Foreign Worker Individual can work temporarily in the U.S. to fill an offered position that does not require any specific studies or experience One time need based on low U.S. worker availability or seasonal needs. H 3 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.

13 L VISAS An L 1 visa is a visa document used to enter the United States for the purpose of work in L 1 status. It is a non immigrant visa, and is valid for a relatively short amount of time generally three years. L 1 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 L 1 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.

14 O, P, & Q VISAS O VISA The O 1 visa is a non immigrant employment based visa issued to the foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics. P VISAS P1 Athlete & Athletic Team & Entertainment Group Internationally recognized athlete performing at a specific athletic event. P2 Artist & Entertainment Reciprocal Exchange The artist or entertainer is under a reciprocal exchange program between the U.S. and foreign organization P3 Artist & 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 noncommercial 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.

15 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

16 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.

17 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 reenlisted (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)

18 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; 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

19 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

20 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 work related 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 part time 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.

21 Safety Regulations in Employment DOL OSHA is authorized to conduct on site 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 on site 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:

22 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 non mandatory standard; 6. Employee misconduct; 7. Citation Untimely Issued.

23 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 work related. 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.

24 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.