Applying for DACA? Here are the pros and cons

Posted on February 18, 2015 | Comments Off on Applying for DACA? Here are the pros and cons

The Deferred Action for Childhood Arrivals (DACA) program doesn’t come close to the proposed DREAM Act, which offers undocumented immigrants, who came to the U.S. as children, a path to permanent residence or citizenship.

But DACA offers key benefits, including relief from removal and work permits for three years.

Qualified applicants must weigh the pros and cons before filing a DACA request.

 

Who Qualifies for DACA?

DACA was introduced in 2012 by then-DHS Secretary Janet Napolitano. You may apply for DACA by filing a Form I-821D along with your Form I-765 and documentation proving that you:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007;
  • Are at least 15 years old (unless you are in removal proceedings or have a final removal or voluntary departure order, in which case you may apply even if you are under 15);
  • Were physically present in the United States on June 15, 2012, and at the time of filing your DACA application with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The new DACA – which was expected to roll out on February 18 but was temporarily blocked by a federal court order – expands relief to those who:

  • Entered the United States before January 1, 2010, instead of before June 15, 2007;
  • Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
  • Are out of status as of November 20, 2014, rather than as of June 15, 2012
  • Are of any age (removes age limit requiring the person to be born since June 15, 1981, as long as the person entered the United States before age 16).

[UPDATE #1 : On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

What Are the Pros and Cons of Applying for DACA? 

PROS

Here are a few reasons to apply for DACA:

You get relief from removal and work authorization for three years

Previously, the deferred action period and work permits under DACA were issued in two-year renewable periods. As of November 25, 2014, these benefits are extended to three years and may be renewed as long as DACA continues.

Those who are currently in removal proceedings, have a final removal order, or have a voluntary departure order can also file for DACA. If you are in immigration detention or in the custody of Immigration & Customs Enforcement (ICE), you must first obtain your release as a DACA-qualified applicant. If you are released from custody, you may then file your DACA request with USCIS.

You are in authorized stay and are not accumulating unlawful presence

DACA is a form of authorized stay in the U.S. This means you are not accumulating unlawful presence during the deferred action period.

Normally, you begin accumulating unlawful presence in the U.S. once you turn 18, which may bar you from reentry to the U.S. for three or ten years (even if you otherwise qualify for an immigrant visa or green card). If you are unlawfully present in the U.S. for more than 180 days but less than 1 year, you are barred from re-entering the U.S. for three years. If the unlawful presence is 1 year or more, you are barred from re-entering the U.S. for 10 years.

If you came to the U.S. illegally, you must usually depart the U.S. to consular process your immigrant visa based on marriage to a U.S. citizen or permanent resident.  The 3-year/10-year bar kicks in once you depart the U.S. to attend your immigrant visa interview at the U.S. Consulate abroad. You would then need to obtain a waiver by showing your absence from the U.S would cause “extreme hardship” to your  U.S. citizen or permanent resident spouse. The waiver can be very difficult to get due to the strict requirements.

You will continue to accrue unlawful presence while your DACA request is pending, unless you are under 18 at the time of the request. If you are under 18 when you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 and the request is still pending. If you receive DACA, you will not accrue unlawful presence during the deferred action period.

Although deferred action does not give you lawful nonimmigrant status or immigrant status in the U.S, it helps protect you from accruing unlawful presence, which carries immigration penalties. Having authorized stay in the U.S. during the deferred action period can be especially beneficial if you were to later qualify for an immigrant visa.

You may travel outside the United States with advance parole

As a DACA recipient, you may apply for advance parole to leave the U.S. and return legally in DACA status. But you must first apply for advance parole by filing a Form I-131, Application for Travel Document.

USCIS will grant advance parole only if your travel abroad is for:

  • humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
  • educational purposes, such as semester-abroad programs and academic research, or;
  • employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Advance parole allows you to leave the U.S. for these purposes, but is not to be used for vacation or for general travel.

You receive social benefits and economic opportunities

In general, DACA recipients have more economic opportunities and are more socially integrated than those who do not qualify for DACA. With authorized stay and work permits, they find it easier to get a new job, open their first bank account and receive their first credit card.

Getting a driver’s license is a key benefit, especially for young immigrants. Currently, otherwise-eligible DACA recipients can apply for a driver’s license in every state except Nebraska.

Some state laws and college systems also allow certain students to pay in-state tuition, regardless of their immigration status.

A Star Tribune article states “For many who did apply, DACA has paid off. A national survey of DACA recipients last year found that almost 60 percent obtained a new job, 45 percent increased their earnings, about half opened their first bank account and 57 percent got a driver’s license.”

Your information, for the most part, will not be shared with enforcement agencies and will not be used against you 

USCIS has stated that it will not share information provided in a DACA request with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal proceedings against you or your family members, unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances.

CONS

Here are a few drawbacks to consider when applying for DACA:

You have no path to permanent residence or citizenship in the U.S.

Past DREAM Act proposals includes a path to permanent residence and citizenship in the U.S. The DREAM Act is a legislation that must be passed by Congress to become law.

Meanwhile, DACA offers only work permits and relief from removal for a temporary period, but no path to lawful immigrant status. It is not new law.

Basically, DACA is a program or policy directing DHS on how to enforce immigration laws. Deferred action existed long before DACA, but DACA provides a formal process for qualified applications to seek this temporary relief. Because it was made available by an Obama Administration policy, it could easily end under a new U.S. President.

You have no lawful immigration status in the U.S. 

As a DACA grantee, you are considered lawfully present in the U.S., but you still have no lawful nonimmigrant or immigrant status.

Lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card) or temporary visa classification, such as H-1B worker, B-1/B-2 visitor, or F-1 student.

Employers and state officials sometimes believe your lack of immigration status means you are unlawfully present. You might be wrongly denied a job, driver’s license, etc. because you have DACA status, instead of lawful immigration status. Although deferred action gives you authorized stay, your lack of immigration status can make it tougher for you to get social benefits and economic opportunities.

You have no right to travel and return to the U.S. based on DACA grant alone

DACA gives you no lawful status that allows you to travel abroad and return to the U.S. Instead, you must first pay the  filing fee for advance parole (travel document) and file the Form I-131 with USCIS. If you depart the U.S. without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Being approved for advance parole does not guarantee that you will be able to return to the U.S. At the port of entry, the Customs and Border Protection (CBP) officer may deny your entry if he finds you are “inadmissible” due to health or security reasons or other factors.

If you leave the U.S. after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure (even with advance parole) could mean you followed through with the deportation or removal.

Your opportunities to integrate socially and economically are temporary

Congressional Republicans seek to defund DACA. House Republicans attached amendments affecting the 2012 deferred action program to the DHS 2015 fiscal year funding bill. While the bill passed the House, it has been blocked by Senate Democrats.

DHS has also halted the rolling out of the expanded DACA on February 18, due to a federal district court order temporarily blocking its implementation. The new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would extend to certain parents of U.S. citizen and lawful permanent residents and was expected to kick off in May 2015, is also on hold.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

While applicants can continue to file and renew requests under the old DACA, the future of this program is uncertain. And the expanded DACA and new DAPA are being challenged even before kick off.

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

Your information may be shared with enforcement agencies and may be used against you in certain situations

USCIS may share the information in your DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

If USCIS denies your DACA request and your case involves a criminal offense, fraud, or a threat to national security or public safety (or exceptional circumstances), USCIS will refer your case to ICE. You may then face the risk of being removed from the U.S.

Persons who have been convicted of certain crimes or apprehended at the border or at ports of entry while trying to unlawfully enter the U.S. are considered to be enforcement priorities. Other enforcement priorities include persons suspected of terrorism, espionage, or abusing the visa or visa waiver programs. To a lesser extent, persons who have been issued a final removal order after January 1, 2014 are also enforcement priorities.

Consult an Experienced Immigration Attorney Before You Apply for DACA

Overall, the benefits and protections you get from applying for DACA outweigh the risks and limitations.

Before you request DACA, you should first consult a reputable attorney or get authorized legal assistance to help you weigh the pros and cons.

Beware of immigration services that are not authorized to offer legal advice. For help on how to avoid and report immigration scams, go to uscis.gov/avoid-scams or uscis.gov/es/eviteestafas

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Federal Judge Issues Injunction; Expanded DACA and New DAPA on Hold for Now

Posted on February 18, 2015 | Comments Off on Federal Judge Issues Injunction; Expanded DACA and New DAPA on Hold for Now

In response to a federal judge’s order temporarily blocking President Obama’s executive action on immigration, the Department of Homeland Security (DHS) has halted plans to roll out the expanded Deferred Action for Childhood Arrivals (DACA) program today. Whether DHS will launch the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015 is also uncertain.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

The White House said  Obama’s actions “are well within his legal authority.” The U.S. Department of Justice plans to appeal and will likely request an emergency stay of Judge Hanen’s decision at the 5th Circuit Court of Appeals in New Orleans.

Money, Money, Money

In his 123-page decision, Judge Hanen ruled that the Obama administration failed to comply with the Administrative Procedures Act because it did not follow the notice-and-comment rulemaking process in implementing the new policies. The judge did not rule on the primary legal claim that the deferred action programs are unconstitutional.

The Texas-led coalition of states in the lawsuit are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

The judge found that Plaintiffs would suffer economic injuries as a result of the deferred action programs and therefore have standing to file the lawsuit.

Texas, in particular, stated that the DHS Directive would create a new class eligible to apply for driver’s licenses, the processing of which would add substantial costs to its budget. The judge noted, “Texas’ undocumented population is approximately 1.6 million, and Plaintiffs’ evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA.” The judge added there would be increased costs associated with processing a wave of new driver’s licenses.

In 2013, an estimated 86.3% of the U.S. workforce commuted to work in private vehicles. This is especially true in the 26 states that filed the lawsuit, as none of them have extensive mass transit systems.  Because federal law requires the issuance of driver’s licenses to deferred action recipients, Judge Hanen found that the states would suffer economic injuries as a result of the new programs.

Plaintiffs also argued that the DHS Directive will create a discriminatory employment environment that encourages employers to hire DAPA beneficiaries instead of lawful residents.  They noted that DAPA beneficiaries are more affordable to hire because it is likely that employers will not be required to provide them with health care or suffer a penalty for not doing so.

“…no effective way of putting the toothpaste back in the tube…”

On page 120 of his order, the judge reasoned, “If the preliminary injunction is denied, Plaintiffs will bear the costs of issuing licenses and other benefits once DAPA beneficiaries  – armed with Social Security cards and employment authorization documents – seek their benefits. He added, “once these services are provided, there will be no effective way of putting the toothpaste back in the tube should Plaintiffs ultimately prevail on the merits.”

Although the deferred action programs will add to social and economic costs, they will also bring additional benefits and revenues. The net effect of socially and economically integrating deferred action recipients into the American community is positive.

DACA and DAPA recipients with work permits will be able to work lawfully as employees, and are likely to increase their tax payments. These programs are expected to generate federal and state income tax revenue.

The programs will also help prevent unscrupulous employers from taking advantage of undocumented workers by paying them low wages and subjecting them to unacceptable working conditions. This should lead to an overall improvement in wages and working conditions for U.S. workers.

In one report, the Immigration Policy Center, American Immigration Council describes the various ways in which executive action on immigration creates a positive impact. It states, “Immigrants – including the unauthorized – create jobs through their purchasing power and entrepreneurship, buying goods and services from U.S. businesses and creating their own businesses, both of which sustain U.S. jobs.” It further states, “The presence of new immigrant workers and consumers in an area spurs the expansion of businesses, which also creates new jobs.”

Judge Hanen’s Ruling Does Not Involve Old DACA

In his February 17 statement, Homeland Security Secretary Jeh Johnson announced:”The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it.”

Johnson added, “Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.”

Under the expanded DACA, more undocumented immigrants or those who fell out of status and arrived in the U.S. as children would qualify for deferred action and receive employment authorization for three years. The new DAPA would extend to undocumented parents of Americans and lawful residents. The implementation of both programs are now on hold.

There is no set timeline for when the Fifth Circuit would issue a ruling on an appeal from the Justice Department. In the meantime, qualified applicants who are interested in applying for deferred action under expanded DACA or new DAPA should continue collecting required documents, in the event that the injunction is lifted.

Judge Hanen’s ruling does not involve the old DACA that was introduced in 2012 by then DHS Secretary Janet Napolitano. Those who qualify for deferred action and work authorization under the old DACA can still apply and re-apply for these benefits.

[UPDATE: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Posted on February 9, 2015 | Comments Off on Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Several elements must be met for an applicant to be permanently inadmissible to the United States under INA 212(a)(6)(C)(ii), i.e. false claim to U.S. citizenship. A 212(d)(3) waiver may be requested if you are barred on this ground and seek to enter the U.S. as a nonimmigrant. There is no immigrant waiver for this inadmissibility bar.

What are the Potential Defenses to a False U.S. Citizenship Claim? 

A person who is charged with INA 212(a)(6)(C)(ii) may raise a defense as follows:

1) The false claim was made prior to September 30, 1996

False U.S. citizenship claims made before September 30, 1996, when the immigration laws changed, does not permanently disqualify you from obtaining a green card or immigrant visa.

If your false claim to U.S. citizenship was made to a private entity, such as an employer or a bank, prior to September 30, 1996, the lifetime bar does not normally apply.

False U.S. citizenship claims before this date must have been willfully made to a U.S. government official in connection with a visa application, a request for admission to the U.S,. or an attempt to obtain immigration benefits, for you to be deemed inadmissible or removable on this ground. (NOTE: You might still, however, need a waiver for the fraud or willful misrepresentation.)

2) The false claim was not for a “purpose or benefit”  under immigration law or any other federal or state law 

One could argue that the potential benefit is not directly linked to a false U.S. citizenship claim (i.e. the outcome would have been the same regardless of the person’s citizenship status).

One could also argue that the false U.S. citizenship claim was made to avoid a negative outcome, and not to obtain a benefit.

An example is lying about being a U.S. citizen to a police officer to avoid being reported to the immigration authorities (where the arrest would have been made despite citizenship status and where avoiding deportation is not a “benefit”).

3) The false claim was made by someone else 

False claims made by someone else on your behalf, when you were not aware of and did not participate in the claim, should not disqualify you from getting a green card or immigrant visa.

For example, you might have signed the I-9 form, but did not check the box indicating your immigration status or eligibility to work. Rather, the employer checked the box on your behalf without your knowledge (even though, by law, they are not supposed to do this).

USCS may initiate efforts to obtain the I-9 records, whether through a Request for Evidence to you or through a request (subpoena to produce records) to the employer. If your signature appears in the Employee Information and Attestation section of any I-9 form, USCIS could ultimately hold you responsible for the US citizenship box being checked. Typically, it will come down to the adjudicating officer’s discretion, including whether the officer believes your explanation based on your testimony and the underlying circumstances of your unauthorized employment.

4) The false claim was timely and voluntarily retracted

If you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. The retraction has to be in the same proceeding and not in a different proceeding, for example.

What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.

5) The false claim falls under a specific exception

There is a narrow exception to being deportable — due to a false claim to U.S. citizenship — if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen when you made the claim.

6) The false claim referred to being a U.S. national, not a U.S. citizen

There is ambiguity in old versions of Form I-9 (prior to April 3, 2009), which combined a “citizen or national of the United States” into one box. In this situation, the person may argue that the I-9 doesn’t show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.

In these cases, applicants must show they were claiming to be a non-U.S. citizen national as opposed to a U.S. citizen when they completed the I-9.  This inquiry is not necessary when an April 3, 2009, edition or later edition of the I-9 was used because these editions clearly distinguish between a “citizen of the United States” and “non-citizen national of the United States.”

[UPDATE, JUNE 2019] – Different Interpretations of the Law: Does It Matter if the False Claim was Not Intentionally or Knowingly Made? 

In prior guidance, immigration officers, immigration judges, and DHS counsels generally agreed the false U.S. citizenship claim must have been intentionally or knowingly made. Mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim.

But in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals found the plain language of the statute, INA 237(a)(3)(D)(i), does not require an intent to falsely claim citizenship to trigger this ground of removability. The BIA noted the statute does not contain a “knowing” or “willful” requirement for false claims to citizenship. Following this decision, USCIS began to interpret this to mean the applicant need not intend to falsely claim citizenship to be found inadmissible under INA 212(a)(6)(C)(ii).

The U.S. Department of State’s Foreign Affairs Manual (version 03-27-2018), however, still contains a limited exception based on a December 6, 2014 opinion from the DHS Office of the General Counsel. The FAM states:

(1)  Only a knowingly false claim can support a charge that an individual is ineligible under INA 212(a)(6)(C)(ii).  The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (“clearly and beyond doubt”).

(2)  A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.  The individual must establish this claim by the appropriate standard of proof (“clearly and beyond doubt”).

* * *

There is no immigrant visa waiver available under current law for an applicant who is ineligible under INA 212(a)(6)(C)(ii). If you seek to immigrate to the United States, it is especially important to verify whether the bar was properly made. You should raise any potential defenses to prevent adverse consequences due to a false claim to U.S. citizenship.

For more information, read:

Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident (and what you can do to overcome this obstacle)

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

Posted on February 9, 2015 | Comments Off on Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

If you lie about being a U.S. citizen to work, vote in elections, or receive public benefits in the United States, this could stop you from getting a green card or U.S. visa. It can also get you deported from the United States, even if you are already a permanent resident.

A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition.

While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more dire consequences than a criminal conviction.

If getting a green card or U.S. visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.

When Does a False U.S. Citizenship Claim Arise? 

Multiple Situations

False U.S. citizenship claims arise in multiple situations. They include registering to vote in a local, state, or federal election when only U.S. citizens are allowed to do so; claiming to be a U.S. citizen on a job, college, student loan, or mortgage application; and stating that you are U.S. citizen to obtain any benefit for which U.S. citizenship is required.

Most Common Situation: I-9, Employment Eligibility

False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, upon being hired for a job.

All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.

In the Employee Information and Attestation section of the Form I-9, the employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:

I attest, under penalty of perjury, that I am (check one of the following):

  • A citizen of the United States
  • A noncitizen national of the United States (See instructions)
  • A lawful permanent resident (Alien Registration Number/USCIS number) __________
  • An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.

Wrongfully checking that you are a citizen of the United States generally amounts to a false U.S. citizenship claim.

The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.

Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.

Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.

When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). [UPDATE, JANUARY 2018: In prior versions of the I-485, there was no question on whether you have ever misrepresented being a U.S. citizen. But the newer version of the I-485, starting in June 2017, has questions on whether you ever worked without employment authorization, made a false claim to U.S. citizenship, or engaged in unlawful voting.]

Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 ask questions about your employment history.

At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.

Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case.

Some USCIS officers might also subpoena the I-9 records from your prior employer or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection.

If the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.

The U.S. Supreme Court, in Chamber of Commerce of the United States v. Whiting, stated that the I-9 and any information contained in it or attached to it may not be used for any purpose other than for enforcing the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law. False U.S. citizenship claims did not make a person inadmissible or removable until 1996, which was after IRCA was passed in 1986.

But federal courts, including the Eighth Circuit Court of Appeals, have found that an I-9 form can serve as evidence of a false claim to U.S. citizenship, particularly in removal proceedings.

What are the Possible Consequences of a False U.S. Citizenship Claim? 

Since September 30, 1996, non-citizens who made false U.S. citizenship claims “for any purpose or benefit” under the Immigration & Nationality Act (INA) or any federal or state law are permanently inadmissible. This means you have a lifetime bar to obtaining a family-based or employment-based green card or immigrant visa.

False U.S. citizenship claims not only makes a foreign national inadmissible to the U.S, but also removable from the country. A non-citizen who is in the U.S. and who is found to have lied about being a U.S. citizen to obtain immigration benefits or other benefits under any federal or state law may be placed in removal proceedings before the Immigration Court.

Unlike those who are convicted of crimes involving moral turpitude or those who engaged in fraud or willful misrepresentation to obtain immigration benefits, a person who is found to have made a false U.S. citizenship claim does not qualify for an immigrant waiver to overcome this permanent bar. There is no such waiver available, even if the person has a U.S. citizen spouse who will suffer extreme hardships without his presence in the U.S.

(NOTE: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the Immigration & Nationality Act.  Whether you qualify for the nonimmigrant visa itself is a separate issue.)

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It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S.  But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.

If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.

False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and Form EOIR-42B, cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.

If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.

For more information, read:

Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Ethical Guidelines for Offering Unbundled Legal Services

Posted on January 30, 2015 | Comments Off on Ethical Guidelines for Offering Unbundled Legal Services

When lawyers unbundle their legal services, they break down the tasks related to a client’s case and tackle certain parts, while the client addresses the remaining parts.

Instead of offering a complete set of services from start to finish, the lawyer provides specific, limited-scope representation to clients who can’t afford (or don’t want) full representation.

Unbundled services help pro se litigants and others with limited means gain access to legal assistance they would not otherwise have. It also enables lawyers — particularly solo and small firm practitioners – to compete with big, traditional firms as well as online legal services like LegalZoom and Rocket Lawyer.

The American Bar Association (ABA) encourages lawyers to offer unbundled services or limited representation, when appropriate. Most states have adopted the ABA Model Rule 1.2(c) or a similar rule allowing limited representation.

Minnesota fully adopted the rule, which states, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Despite widespread support for unbundled services from the ABA and many state bars, lawyers need to consider the ethical implications when providing limited representation.

Earlier this month, at an MSBA-sponsored CLE program, Patrick Burns, First Assistant Director of the Office of Lawyers Professional Responsibility, discussed ethical considerations and best practices in limited scope engagements. They include the following:

1. Limited representation creates an attorney-client relationship between you and the client

Delivering limited representation to a person — even it involves a single instance of giving brief advice — creates an attorney-client relationship. If it is reasonably foreseeable that a person will rely on your advice, an attorney-client relationship is created. This means the ethical responsibilities of competence, diligence, confidentiality and loyalty apply in limited scope engagements.

Rule 4.2, MPRC prohibits communication about the subject of representation with a person you know to be represented by an attorney. Even when the person is receiving only limited representation from another attorney, the best practice is to communicate directly with that attorney until the attorney consents to your direct contact with the person.

Conflict-of-interest issues cannot be ignored in limited representation. The lawyer or law firm must run conflicts-of-interest checks against clients receiving full representation as well as those receiving limited representation.

2. The limits of representation must be reasonable under the circumstances of the case

The lawyer must evaluate the nature of the client’s matter, the client’s sophistication and abilities, and whether the limited scope will actually benefit the client.

Even if the representation is limited, it must always be competent and thorough, in accordance with Rule 1.1, MRPC. The lawyer needs to consider the substantive law involved. If a matter is so complex that full representation is required, the lawyer should avoid giving unbundled services. The lawyer also has to carefully assess the client’s needs and objectives, from the get-go, to decide whether full representation or limited scope engagement is appropriate.

Limited-scope representation is less common in litigation cases, is problematic in criminal defense and complex family law matters, and is inappropriate in consumer bankruptcy proceedings.

In other cases, it’s reasonable to provide limited scope engagement to help clients with a specific part of what they are trying to accomplish.  In immigration practice, limited representation is appropriate when parts of the case can be competently handled by a sophisticated and capable client, and the limited scope would benefit the client.

For instance, in a marriage-based green card case, an immigration attorney could start by asking the U.S. citizen petitioner and her foreign national spouse detailed questions about their marriage and the spouse’s immigration history and whether he has ever been arrested, charged or convicted of a crime.  After carefully determining eligibility, the lawyer then advises the clients to move forward with the application.

To save money, the clients might want to prepare the paperwork on their own, but then have the lawyer review it for accuracy and completeness before they file it with USCIS.  The lawyer might also counsel the clients on what to expect at the green card interview, but not represent them at the interview. Assuming there are no red flags (e.g., marital separation, criminal convictions, fraud or willful misrepresentation to obtain immigration benefits), limited representation can work in such cases.

3. The client must consent to limited representation

The client must give informed consent to the limited scope of the representation. The definition of “informed consent” is set forth in Rule 1.0(f), MRPC, which states: “’Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Burns advises lawyers to communicate three key things to the client: a) what services the lawyer will provide to the client, b) what services the lawyer will not provide to the client, and c) what the client will need to do on his own once the lawyer completes his part of the work.

Lawyers also ought to communicate the benefits of full representation and the risks of limited representation. The client needs to acknowledge that he is responsible for all other tasks and issues, which are not included in the limited scope, to complete the matter.

While Rule 1.5(b), MRPC, does not require a written retainer agreement, Burns recommends having one, especially when the representation is limited in scope. The scope of representation and rate or fee must also be communicated before or within reasonable time after beginning the representation.

4.  Limited scope engagements may include ghostwriting 

The Minnesota ethics rules do not address ghostwriting documents, including pleadings, for clients. Although ghostwriting is criticized for deceiving the court, circumventing Rule 11 of Civil Procedure, and unfairly providing advantage to pro se litigants, it is permissible in limited scope engagements.

Burns notes that lawyers who assist pro se litigants by ghostwriting pleadings must ensure that the pleading is not frivolous and has a good faith basis in fact and law. The lawyer is still on the hook for Rule 11 sanctions for drafting the pleading, even when he doesn’t sign it, if such a pleading otherwise warrants such discipline.

Lawyers may indicate they helped in drafting the document, but the client can make changes, take your name off, and has control over what gets filed with the court.

Choosing to not disclose your legal services does not amount to an intent to deceive the court. A pro se litigant’s receiving legal assistance behind the scenes is not material to the merits of the case. But the court may ask the client who helped in drafting the document and could call you in to describe the circumstances of the drafting. So keep a copy of the document in the form you delivered it to the client.

5. Do not ask for a malpractice waiver

It might be tempting to ask clients to waive in advance any possible malpractice claims that may arise from limited representation. But from a practical and client relations perspective, it’s better not to ask for one.

Rule 1.8(h), MRPC sets forth the steps lawyers must take to obtain an agreement limiting malpractice liability. The client must have independent counsel in making such an agreement. It is very unlikely that independent counsel will advise the client to prospectively limit their malpractice claims. Keep in mind also that malpractice claims are different from ethics complaints.

The best practice is to not commit malpractice! Fulfill your ethical responsibilities in limited representation just as you would in full representation. Just be clear on what your duties are and what they are not. You cannot be found negligent for failing to perform tasks that you had no duty to complete.

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In general, limited representation is favored by the ABA, state bars and ethics committees. It increases access to legal assistance and advice, especially for those who cannot afford full representation. Offering a la Carte or unbundled legal services is also good for business. It enables lawyers to compete with big firms and online legal services.

But lawyers must consider the ethical implications when providing unbundled legal services to avoid harming the client’s interests and facing an ethics complaint or malpractice claim.

This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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