Do I Need a Visa to Travel Abroad?

Tue, 14 Oct 2008 22:16:41 GMT

Do you know what a visa is? In the United States we have two different types of visas: immigrant visas and nonimmigrant visas. Nonimmigrant visas are usually for tourists and business visitors. Those who hold immigrant visas are entitled to stay in the U.S. permanently and eventually apply for citizenship.

Most Americans think visas are only needed by those visiting or attempting to move to the United States, but that is not the case. While the United States does require visas for certain travel to the U.S., most other countries have similar policies in place as well.

The U.S. Department of State outlines the specific requirements for Americans traveling abroad. In many cases, the need for a visa depends a lot on the length of your stay. Many countries, including Western Europe, Chile, Peru, Thailand, the Caymans and Bermuda will let you enter with just a valid passport and return flight information and allow you to stay up to 90 days in a 6 month time period. A valid passport is usually also required for sea travel including ferry service in countries with cruise ship ports.

Visa requirements vary from country to country. If you are planning to visit as a tourist for less than 90 days a tourist visa should cover your stay. If the trip is specifically for business you may be required to obtain a special visa depending on the purpose of your business. For example in the United States we have visa specifically for people of extraordinary talent such as athletes. They require a different visa than a head of an international corporation visiting the United States branch office.

A few countries, such as Egypt and Bangladesh will allow you enter with an airport visa (landing permit), this is not recommended as the operating hours of these facilities do not always correspond with flight arrivals.

For the remaining countries requiring a visa upon entry you must obtain your visa prior to your departure. Additional prerequisites may be required including a passport with at least six months or more validity, a completely blank page for the country’s visa and, in less developed countries, evidence of yellow fever and other vaccinations. For additional information traveling with a visa click here.

Getting your travel visa is fairly simple in the internet age. There are a number of companies online that will process your visa application for you for the cost of the visa (this varies from country to country) and a small processing fee. Or you can visit your local consulate to complete the process.

When planning your next adventure abroad, make sure your passport and any necessary visas are valid are taken care of prior to departure to ensure a hassle-free trip.

For more information on visas, contact an immigration attorney today

Can I work in the U.S. if I am not a U.S. citizen?

Mon, 26 Jan 2009 13:06:53 GMT

Even if you are not a U.S. citizen or a lawful permanent resident, you may still be able to work in the U.S. By gaining a work permit, or an Employment Authorization Document (“EAD”), you become eligible to work in the U.S. for a certain period of time, so long as you fall within a certain category of persons. Additionally, depending on your occupation and education, you may qualify to work in the U.S. as a nonimmigrant H-1B alien.

You are required to obtain an EAD in order to work in the U.S. if you fall within certain categories, including students, fiancés of U.S. citizens, and persons seeking asylum or refugee status. You can find a complete listing of these categories on Form I-765, or the Application for Employment Authorization, which you must fill out in order to apply for an EAD.

The normal filing fee for an EAD application is $340.00. However, in some circumstances, you may not have to pay a fee. For example, if you have applied to adjust your status to that of a lawful permanent resident, you do not have to pay a filing fee for an EAD application.

Additionally, you may qualify to work as a H-1B alien if you are employed in a specialty occupation. In order to qualify as a person working in a specialty occupation, you must hold at least a bachelor’s degree, and be engaged in the theoretical or practical application of a certain body of knowledge, such as architecture, engineering, medicine, or law. If you qualify as a person working in a specialty occupation, a specific employer files an application on your behalf, up to six months before your proposed employment date. There is a base filing fee of $190.00 for an H-1B application, along with other fees, depending on the employer’s circumstances. For instance, an employer can have its application processed within 15 days if it pays a $1,000 premium processing fee. The various applications and forms necessary in order to employ a person as a H-1B alien are also available at www.uscis.gov.

You currently can work in the U.S. as a H-1B alien for up to six years at a time, which may be extended under some circumstances. For instance, this time period may be extended up to ten years if you are working on certain Defense Department projects. Once your time period has expired, however, you must leave the U.S. for at least one year before again applying for an EAD.

There are limitations on the number of H-1B aliens that can work in the U.S. each year. Currently, there is a limit of 65,000 workers per year; this limit has been temporarily increased in some past years. There is also a maximum of 20,000 workers holding a masters’ degree or higher that are not subject to the regular H-1B alien cap.

How can I help my employee become a U.S. resident?

Mon, 26 Jan 2009 13:17:45 GMT

Aside from relative petitions, employee petitions are another common way to help a person become a U.S. resident. In this global age, it is not uncommon for employers to recruit employees on an international basis. In order for a foreign national to permanently live and work in the U.S. as a resident, the employer has to go through an application process with the U.S. Citizenship and Naturalization Service (USCIS). Furthermore, there are specific requirements as to the type of foreign employees that are eligible for this type of immigration process.

Typically, the employer must first obtain a Labor Certification Application (LCA) from the U.S. Department of Labor. However, for some classes of employees, the LCA is not required. Following the approval of the LCA, or if the LCA is not required, the employer must file Form I-140, Immigrant Petition for Alien Worker with the USCIS Service Center, or in the case of employees who qualify as “Special Immigrants,” as defined in the following paragraph, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Eligible foreign employees may be living either inside or outside of the U.S. at the time of the petition. However, employees must fall within one of four occupational categories in order to be eligible for lawful permanent residency on the basis of their employment. Employees must either be “Priority Workers”, such as professors or multinational executives, “Professionals with Advanced Degrees or Persons with Exceptional Ability”, “Professional or Skilled Workers”, such as workers holding college degrees or skilled laborers not available in the U.S., and/or “Special Immigrants”, such as religious workers or some physicians.

Once the application is approved, you must wait until the employee is given an immigrant visa number by the U.S. Department of State, even if he or she is already in the U.S. The approved application gives the employee a “priority date”, or a place in line among the other persons also seeking lawful permanent residency through the same occupational category. Waiting periods for immigrant visas vary according to a number of factors, such as the country or region of the employee, and the number of other persons seeking the same type of visas.

After receiving an immigrant visa number, the employee is entitled to an immigration visa to enter and work in the U.S. At this point, the employee’s spouse and unmarried children under age 21 also are generally able to petition for immigrant visas, or to adjust their status to that of lawful permanent residents, as well. If the employee is already in the U.S., then he or she must file the necessary application in order to adjust his or her status to that of a lawful permanent resident. If the employee is not yet in the U.S., then he or she will complete the process at a local U.S. consulate office.

How can I help my fiance(e) become a U.S. resident?

Mon, 26 Jan 2009 13:09:58 GMT

If your fiancé(e) is a foreign citizen, you will need to know the procedures for bringing your fiancé(e) to the U.S., and for him or her to become a permanent resident of the U.S. Keep in mind that there are some very strict timelines that apply to immigration to the U.S. on the basis of an intended marriage, and failure to meet those timelines can result in your fiancé(e) having to leave the U.S.

First, you must file an application at your local U.S. Citizenship and Immigration Service (“USCIS”) Service Center for your fiancé(e), which is called K-1 immigration classification. At this time, you can also apply for your fiancé(e)’s unmarried children under age 21 to immigrate to the U.S. Once the application is approved, your fiancé(e) will have to go to the nearest U.S. Embassy or consulate and obtain a visa. This visa will permit your fiancé(e) to enter the U.S. for a 90-day period as a non-immigrant, for the purposes of marrying you and becoming a lawful permanent resident of the U.S. Your marriage must occur within that 90-day period, and if it doesn’t, then your fiancé(e) must leave the U.S. Plus, your fiancé(e) generally must remain in the U.S. during this 90-day period; if he or she leaves during this 90-day period, then he or she may have to a get a new visa in order to reenter the U.S.

In addition to marrying within the 90-day period, you and your fiancé(e) must have met in person at least once in the two years prior to filing for K-1 status for your fiancé(e). The only exceptions to this rule are if meeting in person would violate historical customs, or if meeting in person would cause extreme hardship. Plus, both you and your fiancé(e) must be free to marry one another, i.e., you cannot already be married to someone else.

Once your fiancé(e) enters the U.S., he or she can apply for authorization to work in the U.S. As a practical matter, it is unlikely that the work permit will be issued within the 90-day period for marriage; in this case, your fiancé(e) – now spouse – will have to reapply for a work permit.

Following your marriage, your fiancé(e) – now your spouse – should apply to become a permanent lawful resident of the U.S. Your spouse will receive conditional permanent residency for a period of two years, which is the only type of residency available based on a marriage that is less than two years old. Assuming that you and your spouse are still married after two years, then your spouse will become eligible for regular permanent residency.

Approximately 90 days prior to the expiration of the two-year conditional residency, you and your spouse must jointly file to remove the conditions on your spouse’s residence. If you don’t jointly apply to remove the conditions during this timeframe, your spouse risks losing his or her conditional residency and having to leave the U.S.

How can I help my relative become a U.S. resident?

Mon, 26 Jan 2009 13:14:25 GMT

One of the most common ways in which a person can become a U.S. resident is through a relative that is already a resident of the U.S. If you are a lawful permanent resident of the U.S., you can file an application for your husband, wife, or unmarried child(ren) of any age to also become lawful permanent residents. If you are a naturalized U.S. citizen, it may be even quicker for your spouse or unmarried children to immigrate to the U.S.; furthermore, as a U.S. citizen, you can also petition for your married child(ren) to immigrate to the U.S., and, if you are over the age of 21, your sibling(s) and/or parent(s). Although the application process for a relative can be time-consuming, and is not guaranteed to be successful, it is often the easiest way to reunite your family in the U.S.

The first step to helping your relative become a lawful permanent resident of the U.S. is to file Form I-130, Petition for Alien Relative. When you file your petition, you must provide proof of the relationship between you and your relative, and proof that you can financially support any relative(s) that you sponsor for immigration into the U.S.

If your petition is approved, your relative will be assigned a visa number in the category of people from the same country or region who are also seeking to become residents of the U.S. through their relatives. In other words, your relative will be given a place in line, based on the date that he or she received a number. Therefore, it is best to file your application as soon as possible, as it may take several years before your relative’s visa number reaches the head of the line. Unfortunately, your relative may not live or work in the U.S. while waiting for his or her visa number to reach the head of the line. In fact, if your relative is found in the U.S. illegally, then it will affect his or her ability to obtain a visa when his or her number reaches the head of the line.

When your relative’s visa number comes to the head of the line, the U.S. Department of State will contact your relative and invite him or her to apply for an immigrant visa, which would allow him or her to immigrate to the U.S. You will also have to file an Affidavit of Support for your relative. In this affidavit, you must prove that you are able to financially provide for your relative should he or she immigrate to the U.S. Without a financial sponsor, your relative cannot immigrate to the U.S.

Finally, if you should become a naturalized U.S. citizen during this waiting period, you should immediately notify the USCIS Service Center or the National Visa Center of your citizenship, depending on the stage of your relative’s application process. Because you are now a U.S. citizen, your spouse and any unmarried children under the age of 21 will become automatically eligible to immigrate, without the waiting period. However, there is still likely to be a waiting period for children over the age of 21.

How do I become a U.S. citizen?

Mon, 26 Jan 2009 13:03:49 GMT

If you are born in the U.S., you are automatically a U.S. citizen. If you are not born in the U.S., however, you still may be able to become a U.S. citizen through the naturalization process. A naturalized U.S. citizen enjoys all of the same rights and protections as a U.S. citizen by birth. Among these rights is the right to vote, the right to hold an elected position or a federal job, and the right to enjoy priority status in bringing relatives to live in the U.S.

There are several requirements that you may have to meet in order to become a naturalized U.S. citizen. You must live in the U.S. continuously for a certain period of time, and within the same U.S. Citizenship and Immigration Services (“USCIS”) district for a certain period of time. You must have knowledge of U.S. history and government, and be able to read and write in English. You must be of good moral character. You also must believe in the principles of the Constitution, and have a positive view of the U.S. If you meet all of these requirements, you can become a U.S. citizen through the naturalization process. In some circumstances, you may not have to meet all of these requirements, such as, for example, if you are the spouse of a U.S. citizen. All people who wish to become naturalized citizens, however, must exhibit good morals, a belief in the Constitution and its principles, and have a favorable disposition toward the U.S.

When you apply for naturalization, you must complete a certain application form. You Along with your application form, you must also pay a filing fee, and submit two passport-sized photographs of yourself. The current filing fee is $595.00. If you are under the age of 75, you may also have to pay a fee in order to be fingerprinted, which is currently $80.00. Depending on your situation, you may also be asked to submit certain additional documents to the USCIS along with your application.

After you submit the necessary forms to your local USCIS Service Center, you will be scheduled to attend a naturalization interview at a USCIS district office or another location. You must attend this interview, or your application will be denied, unless you reschedule the interview within one year of your application. Right now, there is a very high number of applications for naturalization, so the naturalization process may take six months or more, and your interview may be scheduled to take place after regular business hours, or on a weekend.

You should bring identification and any other requested documents to your interview. At your interview, the USCIS officer will place you under oath, and ask you questions about your application and background information. It is important to be truthful when filling out your application for naturalization and meeting with a USCIS officer for your interview. Even if you have committed only a minor crime, if you do not disclose this crime on your application and/or to the USCIS officer who is interviewing you, your application for naturalization could be denied.

Once your application for naturalization is approved, you will attend a formal naturalization ceremony at which you will take the Oath of Allegiance to the United States. In some circumstances, you may be able to take the oath at the same time as your naturalization interview. You will also receive a Certificate of Naturalization, which is proof of your status as a naturalized U.S. citizen.

How do I become a lawful permanent resident of the United States?

Mon, 26 Jan 2009 13:01:01 GMT

If you are a legal immigrant in the U. S., or if you have permission to work and live in the U. S., you can apply to become a lawful permanent resident of the United States. This process is commonly known as getting your “green card”. As a lawful permanent resident, you can live and work permanently in the U. S., so long as you do not commit any act that would make you removable from the U.S. under federal immigration laws, such as certain crimes. Becoming a legal permanent resident is also a necessary step to becoming a naturalized U.S. citizen.

First, you must have an immigrant visa number before you can apply to become a lawful permanent resident. Because the number of immigrant visa numbers available each year is limited, you may not get an immigrant visa number right away. In some cases, you might have to wait years between the time that your immigrant petition is approved and the time that you receive your immigrant visa number.

Next, you’ll need to complete and file various forms with the U.S. Citizenship and Immigration Services (“USCIS”), including two color photographs taken within the last 30 days. You may have to complete different forms depending on your situation.

With some exceptions, you must pay a filing fee in order to apply for lawful permanent residence. The usual filing fee is $1,010.00, but this fee is different if you are over 80 years old, or under 14 years old. Plus, if you were admitted to the U.S. as a refugee, you do not have to pay the filing fee. USCIS can also charge you an additional $1,000.00 filing fee if you are required to file a supplemental application that gives more information. There is a fee waiver application that you can file with the USCIS; depending in your circumstances, you might qualify for a waiver of the usual filing fee.

You also will be required to submit to a FBI fingerprint background check, which will take place at either an Application Support Center, or a Designated Law Enforcement Agency. Most applicants for lawful permanent residence, with a few exceptions, must also submit to a medical examination by a civil surgeon that is approved by USCIS.

After you submit your completed application to USCIS, you will have to go to a USCIS office for an interview, where you will answer questions about your application. You can check the status of your application with the USCIS office that received your application.

While you are waiting for your application to be approved, you can apply for a work permit. You also can leave the country during this time period, if you receive advance permission to do so, which is called “advance parole”. If you don’t receive advance parole before leaving the U.S., you will abandon your application for lawful permanent residence, and you may not be able to legally re-enter the U.S.

How to Get Immigration Assistance for Little or No Cost

Fri, 07 Nov 2008 00:50:37 GMT

A good attorney is important to a positive outcome in many legal proceedings. While that is true in most areas of the law, it is especially important in the field of immigration law. Some immigrants who are seeking to lawfully remain in the United States are indigent and lack the resources to hire a private attorney. Likewise, some immigrants are not familiar with immigration law and the American court system.

Where to Find Help

There are several different types of agencies that might be able to assist immigrants for little or no cost. These types of organizations include:

Charitable Organizations: Some groups, such as Catholic Charities, provide free or low cost legal representation to those looking to live legally in the United States.
Community Legal Services Groups: These groups include local community legal service groups such as Greater Boston Legal Services and Legal Aid Foundation of Los Angeles. They provide immigration assistance as well as other legal aid to qualifying individuals.
Legal Advocacy Projects: There are a number of legal advocacy projects that focus solely on immigration and asylum matters. Two examples of these types of organizations include the Florida Immigration Advocacy Center and the Florence Immigrant and Refugee Rights Project in Arizona.
Law Schools: Some law schools have immigration law clinics where law students are able to represent immigrants free of charge. The law students are closely supervised by experienced law school faculty. Many, but not all, of these programs are closed or are available only on a limited basis during the summer months.
Private attorneys: Some private attorneys are willing to accept immigration cases pro bono. Many attorneys do a certain amount of pro bono work each year in a variety of fields because they are looking to give back to the community or because they are looking for experience in a particular field.

What Kind of Help Is Available

Individuals and organizations that chose to offer free or low cost services are able to put limitations on their services. Therefore, each individual and organization can decide which services they are willing to offer so long as they do so in a nondiscriminatory manner. For example, they may decide whether or not they will represent criminal aliens but they may not decide to represent female criminal aliens but not male criminal aliens.

Since each individual and organization can decide what services they want to offer, it is useful to ask the following questions of any attorney with whom you might wish to work, as they are applicable to your situation:

Do you represent criminal aliens?
Do you charge and if so, what are your fees?
Do you speak any languages other than English?
Do you represent aliens in asylum?
Do you represent undocumented aliens?
Are there any other limitations on your representation?

Many individuals have just once chance to remain in the United States legally. A skilled attorney is, therefore, important to make sure that they have every chance to succeed in the quest to remain in the United States. If attorney’s fees are out of reach for a person wishing to remain in the country then a low cost or free attorney may be available to assist in immigration matters.

Overstaying Your Visa

Tue, 14 Oct 2008 21:26:15 GMT

Visitors to the United States come to the US for a variety of reasons such as to work, to explore, to visit family or to get married. Many non-citizens wish to remain in the US beyond their visa time limit, but rather than take the proper legal steps or leave and return to the US, they will take the riskier step of overstaying their visa and staying below the radar of the United States Citizen and Immigration Services (formerly the INS). However, no matter what the reason, if you are here under a visa and overstay your authorized time, the consequences may be severe.

Consequences

Overstaying your visa is never a reasonable option and should be avoided if at all possible. It is best to seek the advice of an immigration law attorney if you wish to extend your stay or if you have overstayed your visa. An attorney can properly advise you on the best path to avoid expulsion from the country and other severe repercussions. For example, if you were planning to overstay your visa to find a job and found an employer to sponsor you during your overstay, in the end you would still almost certainly be deported.

Typically, if you overstay your visa for more than 180 days you will face removal proceedings to be deported from the United States. Additionally, if you overstay for more than 180 days but less than one year then you will be inadmissible to the US for three years beyond that time and if you overstay for one year or greater you will be inadmissible for ten years. If you overstay but not more than 180 days you must leave the US but you can apply for a visa to return immediately. There are a few exceptions but they are found in only a small number of extreme situations.

Filing for an Extension of My Stay

If you would like to extend your stay in the US, filing should begin a substantial amount of time before your stay expires. If your stay has already expired, exceptions for filing will be allowed only if you can prove that:

The delay was due to extraordinary circumstances beyond your control;

The length of the delay was reasonable;

You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);

You are still a nonimmigrant (meaning you are not trying to become a permanent resident of the United States, but there are some exceptions); and

You are not in formal proceedings to be removed from the country.

Best Decision

The most ideal situation would be to enter the United States, stay for your allowed number of days and leave. If you would like to extend that stay, begin proceedings with substantial time to complete the process before your authorized stay expires. Consult an immigration attorney before any major decisions or actions are made so he can advise you of any repercussions that may result from those actions.

The Widow's Penalty

Wed, 23 Apr 2008 12:25:25 GMT

Current immigration law requires deportation of the alien spouse of a U.S. citizen if their marriage does not last past two years. This law was intended to prevent sham marriages where a non-citizen would marry a U.S. citizen to quickly gain legal residency and then just as quickly get a divorce. Now, the United States Citizenship and Immigration Service, USCIS, argues they are required to deport aliens whose spouse dies within two years of being married.

This law has become known as “the widow’s penalty” and has been the subject of numerous lawsuits against the USCIS. The argument revolves around who is an immediate relative of a deceased person.

When a non-citizen marries a citizen, the citizen spouse may “sponsor” their alien spouse for residency by filing form I-130 “Petition for Alien Relative.” Form I-130 may only be submitted by an “immediate relative” such as a spouse, parent or child. The government is now arguing that at death spouses are no longer “immediate relatives” and thus, the petition must be denied. If the application has been approved prior to the death however, the USCIS will not rescind it because of a spouse’s death.

In the one case that has been ruled on by a Circuit Court of Appeals, second highest to the Supreme Court, the San Francisco based Ninth Circuit ruled that a person does not lose “immediate relative” status with their spouse simply because their spouse dies. To take advantage of that ruling a class action lawsuit has been filed in Los Angeles to force the USCIS to cease all similar deportations.

Other cases that have been filed against the USCIS include a citizen who died in Iraq while working as a Department of Defense security contractor, and another who died while saving two boys from drowning in San Francisco and was posthumously awarded a Coast Guard heroism medal. Those two men died protecting others and now because of their sacrifice their widows are being deported, one of whom must also take her son who is a citizen. These women are now forced to resort to filing a lawsuit to stay in the country.

Because the legal issue involves the interpretation of a statute Congress can fix this mess by simply changing the statute. Unless Congress decides to change the law’s ambiguous language the issue is destined to be settled in the courts. However, because of the current political climate, changing any aspect of immigration law has proven difficult. An amendment was introduced this past Congress but failed when the overall immigration reform bill failed.

Congress has acted though to speed up the immigration process for non-citizens who are serving in the military. This shows that Congress does realize that persons who make extraordinary sacrifices deserve more support from their adoptive country. Immigration policy is now a touchy subject, but supporting the troops has always been seen as an obligation.

The Ninth Circuit ruling does not guarantee that these women will be able to stay. What it guarantees is that when processing applications the USCIS cannot unilaterally deny them because their husbands made the ultimate sacrifice, leaving them now widows.

For more information on the widow's penalty, contact a qualified immigration attorney in your area today.

What Happens When You Divorce a U.S. Citizen Prior to Becoming a U.S. Citizen?

Mon, 12 Oct 2009 14:03:37 GMT

The lives of most divorcees change once a divorce is finalized. However, if one of the divorcees is not a United States citizen then that person may face an additional challenge and need to fight for the right to remain in the United States. Generally, when an immigrant marries a U.S. citizen and the couple resides in the United States, the immigrant spouse is provided with a conditional permanent resident status until the couple has been married for two years. In order to obtain full permanent resident status, the immigrant spouse must file a petition with the INS prior the second anniversary of obtaining a conditional permanent resident status. If the couple is still married then the immigrant spouse becomes a full permanent resident. However, if the couple is divorced then the immigrant spouse is deportable.

Exceptions to the Deportation Rule if the Couple Divorces Within the First Two Years of Marriage

While the presumption is that a divorcee who does not have permanent resident status will be deported, there are exceptions to that general rule. In order to remain in the United States, the divorcee, usually with the help of an immigration attorney, needs to prove one of the following:

· That the marriage was a marriage entered into in good faith and that the marriage was terminated due to no fault of the immigrant. A court is likely to find that the marriage was entered into in good faith, and not for purposes of immigration status, if the couple lived together as husband and wife, if the couple had a child together or if the couple owned property together.

· That the immigrant would face extreme hardship if deported; or

· That the immigrant was battered or treated with extreme cruelty by the spouse who was the U.S. citizen.

If any of these three exceptions are proven then the immigrant may remain in the United States.

Couples Who Divorce after 2 Years of Marriage

Generally, an immigrant who divorces a United States citizen after 2 or more years of marriage is less likely to face deportation if the immigrant has already obtained permanent resident status. A divorce may delay the alien’s citizenship process since there is only a three year residency requirement for immigrant married to U.S. citizens and there is a five year residency requirement for immigrants who are not married to U.S. citizens. However, the immigrant will be allowed to remain in the United States.

Your Divorce May Affect the Immigration Rights of Others

Often it is not just the immigrant spouse whose immigration to the United States is affected by a divorce. The divorce could also impact visa applications for other relatives whom you were sponsoring to bring to the United States.

Child Custody and Property Rights Should Not Be Affected

Getting a divorce has many implications for an immigrant spouse in the United States. However, it is important for both spouses to understand that a spouse’s citizenship status has no bearing on a court’s award of child custody or property division decisions. Child custody decisions should be made in the best interest of the child and not based on a parent’s immigration status. Likewise, marital property will be divided according to the laws of your state and a spouse’s immigration status should have no bearing on that award.

There is no question that a divorce raises very real and very serious concerns for an immigrant in the United States. However, an immigration attorney can help an immigrant remain in the United States in many cases and obtain a fair child custody agreement and division of marital property agreement. Therefore, any immigrant should seek prompt legal assistance if he or she is divorcing a United States citizen.

Work Place Injuries do not Discriminate Between Legals and Illegals

Wed, 23 Apr 2008 18:41:17 GMT

Workers’ compensation laws were created to compensate an employee for injuries sustained while on the job. One of the most debated issues in the area of worker’s compensation is whether workers who have entered the country illegally should be granted the same work place protections that legal employees have. Some argue that illegal immigrants should NOT be entitled to workers compensation if injured while working because they are not lawful employees, and should not be here in the first place. Others argue that illegal immigrants SHOULD be covered by the worker’s compensation laws so that employers don’t have more of an incentive to hire illegals as a way to avoid workers compensation liability. The states vary in how they have addressed that question. Most recently, South Carolina ruled in favor of coverage for illegal workers.

Curiel v. EMS

In Curiel v. Environmental Management Services the South Carolina Supreme Court unanimously ruled that illegal immigrants are eligible for worker’s compensation if they are hurt on the job. In that case Curiel, an illegal immigrant from Mexico, was a construction worker for Environmental Management Services (EMS). While on the job he injured his eye and filed for worker’s compensation benefits because of the injury. EMS refused to pay because the company claimed that Curiel was not an employee under the law.

Illegal to pay Illegals

EMS based their case on the constitutional argument that the Supremacy clause of the Constitution invalidates South Carolina’s worker’s compensation statute. The Supremacy clause generally states that any state law that conflicts with a federal law is void. EMS argued that the federal law that makes it illegal to hire illegal aliens trumps the state worker’s compensation law that defines an employee as “every person engaged in an employment… whether lawfully or unlawfully employed.” Thus EMS argued the state law is unenforceable as to illegal workers and Curiel could not collect benefits.

Ruling for Curiel

For several reasons the court ruled that Curiel should be granted worker’s compensation for his injury. Part of the ruling for Curiel was based on public policy reasons. The court stated that if employers could escape liability for claims brought by illegal immigrants, then a ruling for EMS would only encourage employers to continue to hire illegal workers.

The court was not persuaded by the supremacy argument either because it stated that the text and purpose of federal immigration law was not intend to “undermine or diminish” any existing state labor law protections. Thus the two laws were not in conflict with each other. However, Congress is able to change the law so it does conflict if it chooses to do so.

The Future

Two sections of the Constitution allow Congress to act to forbid similar court rulings in the future, the aforementioned Supremacy clause and the Commerce clause. The Supremacy clause will allow Congress to explicitly void worker’s compensation benefits to illegal workers due to federal immigration law. The Commerce Clause grants Congress the exclusive ability to regulate interstate commerce. Congress could pass a law that forbids paying worker’s compensation benefits to illegal immigrants who are injured in interstate commerce. This type of law would likely see a lengthy political battle to become a law and an eventual court battle if it is passed.

For more information on worker's rights, contact a worker's compensation attorney today.

Free Visiting the USA - Visas Articles

Wed, 25 Nov 2009 10:26:30 GMT

Free Visiting the USA - Visas Articles