Employers will not be able to deduct payroll expenses of unauthorized workers for tax purposes, according to a plan outlined by Representative Steve King of Iowa. King, currently the senior Republican on the Judiciary subcommittee on immigration, is expected to chair the committee next year. According to a recent New York Times news article dated December 13, 2010, King will make this measure his priority as chairman of the immigration subcommittee.
This bill was introduced last year by King. His idea is that by taking away the incentive of tax deduction, employers will see that there is no financial benefits of hiring unauthorized workers. He estimated that instead of paying $10 an hour to hire somebody illegal, employer actually would have to shell out $16 an hour without the tax benefits. The result of his proposal, according to King, would be massive firings of unauthorized workers by employers across the nation and creation of new jobs for American workers.
Perhaps the most controversial aspect of the proposal is the removal of a privacy firewall that has protected the taxpayers' information stored at Internal Revenue Service from scrutiny of other government agencies. King's proposal requires that IRS shares its data and information with the Department of Homeland Security and the Social Security Administration. By comparing the taxpayers' private information such as names, dates of birth, social security numbers, etc., against the database of the SSA and DHS, the immigration officers would then be able to identify the taxpayers who are not legal in the country.
However, King's proposal goes against the long-standing privacy firewall that IRS has enjoyed. The mandate of IRS is to collect taxes and to generate revenues. The agency has kept taxpayers' data and information private for the most part. The fear is that if such private information is disclosed to third parties and other government agencies, taxpayers will be afraid to file tax returns and share their private information. Potentially this could cause a big drop in tax revenues. Under this economic environment and in the face of a government deficit in excess of $13 trillion, one may wonder whether this is a good time to introduce such a proposal.
Whether or not King's proposal would really result in less hiring of unauthorized workers is questionable. Many employers hire illegals not for the tax benefits. Some of them do it out of ignorance because they don't understand the legal requirements and are confused by the immigration documents. Some other employers resort to hiring unauthorized workers because they truly couldn't find enough American workers to work for them for various reasons.
The New York Times article also reported that King is an opponent of the Dream Act - a law that would allow minors who were brought into the U.S. under the age of 16 who have completed high school to have a way to be legalized, as long as they have no criminal record, pay all taxes, attend college or join the military, and met all all legal requirements. The Dream Act has enjoyed bipartisan support by members of both parties in Congress. In fact, House just passed one version of it recently. Many immigration scholars argue that the Dream Act should be passed so that all the tax payers' monies that went into educating these youngsters will not be lost with their deportation. King also considers implementing new measures in border enforcement including construction of more physical fence barriers to stop illegal immigrants from crossing the border.
Showing posts with label Unauthorized Employment. Show all posts
Showing posts with label Unauthorized Employment. Show all posts
Thursday, December 16, 2010
Monday, August 23, 2010
Avoid Unauthorized Employment by Renewing EAD Early
Recent case processing time tables of the U.S. Citizenship and Immigration Services indicate that it is taking three months for the agency to process the I-765 Application for Employment Authorization (EAD) This is true with all four USCIS service centers and the National Benefits Center (NBC). The 90-day schedule applies to all categories of applications including employment-based applicants, family-based applicants, refugees, and other categories. Hence, applicants should file their I-765 applications as early as possible to make sure that they have a new EAD in hand before their current EAD expires.
Importance of an EAD
When a person is applying for Lawful Permanent Residence status, the EAD is an important document for the applicant. Not only does it allow the person to work legally in the United States
Delay in Processing
Although the USCIS has always indicated that it would take up to 90 days to process an EAD application. In the past, if there was nothing unusual about the application, it was usually approved well under 90 days. However, in an attempt to centralize filing of applications within the USCIS Lockboxes, the agency has changed the filing locations of the I-765 applications. One side effect of this change was delay in processing as a result of the extra time needed to re-route these applications. As a result of this delay many applicants are facing the possibility of working without authorization. Under the law, a foreigner in the U.S.
How to handle delay in processing
If a person’s EAD is expiring and the new EAD has not been approved yet, there are several ways to handle this situation. First of all, the USCIS is making accommodations to allow applicants to make service requests once an EAD application has been pending for more than 75 days. It means that an applicant or his lawyer may contact the National Customer Service Center (NCSC) to make a status inquiry about the status of the I-765 application before 90 days have passed. Secondly, if an applicant is going to lose his job because of failure to obtain a new EAD, he or she may contact the USCIS to request expedited processing of the pending I-765 application. Documentary proof of imminent termination of employment is required to support such a request.
An applicant may also make an INFOPASS appointment to visit the local USCIS office to request assistance. The local offices may no longer issue interim or temporary EADs to applicants. The local office, however, may contact the USCIS service center involved to request for an update of the status of the pending I-765 application. If there is no outstanding issue, the local office should request that the I-765 be approved in a timely manner.
Conclusion
An EAD is required for a foreign to work legally in the U.S.
Monday, May 10, 2010
245(i) Applicants not Subject to Unauthorized Employment Restrictions
Many clients of our firm have expressed concerns about their previous unauthorized employment when they are applying for lawful permanent residence status through adjustment of status in the U.S. Their concerns are valid as the law specifically prohibits a foreigner from working in the U.S. without permission by the U.S. government. Specifically, Section 245(c)(2) of the Immigration and Nationality Act makes an applicant ineligible for adjustment of status if he or she engaged in or continued to accept unauthorized employment. In other words, for a foreign national who has worked illegally, even if he has an approved immigrant visa petition sponsored by a family member or employer, his application for a green card may still be denied.
Unauthorized Employment and Adjustment
Such a rule may seem harsh to the illegal immigrants considering many of them came to the U.S. for economic opportunities. Some others, such as those who were brought to this country as children, simply have to work, legally or illegally, to survive. Fortunately, Congress makes certain exceptions to this prohibition. First of all, applicants who are parents, spouses or children of U.S. citizens are not subject to this rule. These applicants are considered "immediate relatives" of U.S. citizens and an exception is made to foster family reunion. Secondly, for applicants who base their green card application on an employment visa, as long as they come to the U.S. lawfully and the total number of days of their immigration violations (including unauthorized employment and other status violations) is no more than 180 days, they are still eligible to adjust status.
Immediate Relatives and 180-Day Exception
What about those applicants who are not immediate relatives of U.S. citizen and who have more than 180 days of status violations or unauthorized employment? Generally, they are not eligible to apply for adjustment of status unless they meet the requirements under section 245(i) of the Immigration Act, which makes an exception to allow foreign nationals with immigration violations to apply for adjustment of status. For instance, a person entered the U.S. on a tourist visa, overstayed her period of admission, and also worked without authorization. Several years later, she applies to adjust her status to become a legal resident based on an approved family-sponsored visa petition (I-130) filed by her U.S. citizen brother. In this situation, she would not be eligible to apply for a green card unless she is also eligible for section 245(i) relief. The requirements for section 245(i) were discussed in previous articles. Suffice to say that one must have filed a non-frivilous immigrant visa petition on or before April 30, 2001, to be eligible for section 245(i) relief.
245(i) and Unauthorized Employment
In spite of the exceptions provided by section 245(i) of the Immigration Act, some adjustment applications are still being denied because of the applicant's unauthorized employment. One such employment-based adjustment case was denied by an immigrant judge because the applicant had engaged in more than 180 days of unauthorized employment. However, on appeal, the Board of Immigration Appeals (BIA) reversed the judge's decision and held that Section 245(i) does allow the applicant to apply for adjustment of status.
In Matter of ALANIA-Martin, decided on April 30, 2010, the BIA examined the language of the statute and also the legislative history and intent. The Board also reviewed the regulations promulgated for section 245(i) by the government. The conclusion is that section 245(i) does allow applicants who had engaged unauthorized employment to apply for adjustment of status if they are otherwise eligible.
Conclusion
Although these exceptions of law permit a foreign national who have engaged in unauthorized employment to apply for adjustment of status, it does not mean that their green card applications will always be approved. Adjustment of status is a discretionary application and the U.S. government may still deny an adjustment application if there exists serious immigration violations and other negative aspects in the case. One must proceed carefully and file substantial supporting evidence to support an adjustment application.
Unauthorized Employment and Adjustment
Such a rule may seem harsh to the illegal immigrants considering many of them came to the U.S. for economic opportunities. Some others, such as those who were brought to this country as children, simply have to work, legally or illegally, to survive. Fortunately, Congress makes certain exceptions to this prohibition. First of all, applicants who are parents, spouses or children of U.S. citizens are not subject to this rule. These applicants are considered "immediate relatives" of U.S. citizens and an exception is made to foster family reunion. Secondly, for applicants who base their green card application on an employment visa, as long as they come to the U.S. lawfully and the total number of days of their immigration violations (including unauthorized employment and other status violations) is no more than 180 days, they are still eligible to adjust status.
Immediate Relatives and 180-Day Exception
What about those applicants who are not immediate relatives of U.S. citizen and who have more than 180 days of status violations or unauthorized employment? Generally, they are not eligible to apply for adjustment of status unless they meet the requirements under section 245(i) of the Immigration Act, which makes an exception to allow foreign nationals with immigration violations to apply for adjustment of status. For instance, a person entered the U.S. on a tourist visa, overstayed her period of admission, and also worked without authorization. Several years later, she applies to adjust her status to become a legal resident based on an approved family-sponsored visa petition (I-130) filed by her U.S. citizen brother. In this situation, she would not be eligible to apply for a green card unless she is also eligible for section 245(i) relief. The requirements for section 245(i) were discussed in previous articles. Suffice to say that one must have filed a non-frivilous immigrant visa petition on or before April 30, 2001, to be eligible for section 245(i) relief.
245(i) and Unauthorized Employment
In spite of the exceptions provided by section 245(i) of the Immigration Act, some adjustment applications are still being denied because of the applicant's unauthorized employment. One such employment-based adjustment case was denied by an immigrant judge because the applicant had engaged in more than 180 days of unauthorized employment. However, on appeal, the Board of Immigration Appeals (BIA) reversed the judge's decision and held that Section 245(i) does allow the applicant to apply for adjustment of status.
In Matter of ALANIA-Martin, decided on April 30, 2010, the BIA examined the language of the statute and also the legislative history and intent. The Board also reviewed the regulations promulgated for section 245(i) by the government. The conclusion is that section 245(i) does allow applicants who had engaged unauthorized employment to apply for adjustment of status if they are otherwise eligible.
Conclusion
Although these exceptions of law permit a foreign national who have engaged in unauthorized employment to apply for adjustment of status, it does not mean that their green card applications will always be approved. Adjustment of status is a discretionary application and the U.S. government may still deny an adjustment application if there exists serious immigration violations and other negative aspects in the case. One must proceed carefully and file substantial supporting evidence to support an adjustment application.
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