Monday, March 29, 2010

How to Prepare for a Marriage Interview

Every applicant for a visa will be interviewed by an official from the U.S. Citizenship and Immigration Service (“USCIS”). It is USCIS’s opportunity to ensure that the intended immigrant is a real person, and that there is no fraud. The trickiest of interviews tend to be
those where a young marriage is involved.

The spouse of a U.S. citizen can become a permanent resident without waiting for a visa to become available under the preference system. That means that there is no long wait. Being a spouse of a U.S. citizen has other advantages under immigration law. A spouse can adjust in the United States, and does not have to go overseas to process at a U.S. consulate. If a spouse entered legally, the spouse can be out of status when he or she applies for permanent residency. Plus, unauthorized work will not count against the spouse of a U.S. citizen.

All of these benefits under the law create a temptation for a foreigner present in the United States to find a U.S. citizen to marry, so that the foreigner can apply for permanent residency. This is particularly true where the foreigner is out of status. It is because of this temptation that USCIS is suspicious of young marriages.

How, then, can a candidate for a visa based on a marriage prepare for a USCIS interview? The first bit of advice is to try to relax and be yourself. The USCIS officer may ask questions just for the sake of getting to know you as a person. Simply answer the questions honestly.

Next, it is a good idea to talk to your spouse about your history together before going to the interview. Talk about how you met. Reminisce about your dates. Talk about what you got each other for special holidays. Don’t try to memorize every detail. Simply go over your history so it is fresh in your mind. If your answers appear too memorized, it might draw suspicion.

Don’t shy away from bad facts. If your spouse’s parents don’t like you, say so. If you hated the last birthday present you got, don’t hide that fact. Real life has its conflicts. USCIS officers know that.

It is a good idea to have pictures with you at the interview. Try to review them before hand, and remember who was with you, who took the pictures, and what you were doing.

Review your written petitions. The interviewer will ask questions about them. It may have been months since you last saw them. Refreshing your memory is a good idea. If you see mistakes, be sure to correct them up front in the interview.

USCIS insists on evidence of a shared life together. Having a joint bank account is one way to show a joint life. But, don’t open a joint bank account simply to have one. USCIS officers may ask if you have other accounts, and which accounts you use to pay the bills and deposit your paychecks. If you have a long standing account that you use frequently, but the account with both of your names is one that is used infrequently, that will create more suspicion.

Be prepared for questions that might otherwise appear too personal or out of bounds. Some USCIS officers will ask who sleeps on which side of the bed. Some will ask about the decor of your bedroom. Don’t be insulted. Just answer calmly and accurately.

If there is suspicion during the interview, USCIS may bring out the questionnaires. They will ask one spouse to leave the room, and have the remaining spouse fill out a written questionnaire. They will tell you that it is voluntary. Of course, if you refuse it can be held against you. This is not criminal law, thus the 5th Amendment does not apply. Once finished, the USCIS officer will ask you about your answers.

Then, the other spouse will be brought in to answer the same questionnaire. The USCIS officer will compare answers. Be prepared that this might happen.

If you and your spouse normally speak in your native language, be careful about that during your interview. The interviewer can become annoyed if you speak to each other in a language other than English. If your spouse does not speak English, you must bring the interpreter. Again, try not to talk to each other in front of the officer in your native language.

If you have a lawyer, it is a good idea to have the lawyer present in the interview. The lawyer’s role is limited to that of an observer. That is, your lawyer cannot interrupt and answer questions for you. But, if an interviewer is being abusive, your lawyer can, and should, interpose. The best advice is simply to relax and tell the truth. A little preparation beforehand can help calm your nerves, and have you ready to answer whatever questions the interviewer poses.

Wednesday, March 17, 2010

Some Efforts to Comply with Immigration Laws Can Open a Company to Liability for Employment Discrimination

The United States uses employers to help enforce certain immigration laws. Employers, for example, are responsible to verify the identity and employment authorization of all new hires. An employer who knowingly hires a person who is not authorized to work in the United States can face stiff penalties.

Sometimes, however, in their zeal to comply with U.S. immigration laws, employers adopt policies that could run afoul of antidiscrimination laws. For example, I recently attended a conference where the goal was to educate churches on compliance with tax and other federal laws. The presenter warned the attendees that the Department of Homeland Security was more aggressive than the IRS, and stated that at a minimum the church should have a copy of a person’s driver’s license, green card and visa. His theme was that all paperwork should be completed before any work was done.

The problem with this approach (aside from the faulyt assumption that a person with a green card has or even needs a visa) is that it opens the employer to legal liability for employment discrimination. On page 1 of the I-9 form, in the very first text box, the government warns:

It is illegal to discriminate against any individual (other than an alien not authorized to work in the United States) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee.

Page 5 of the I-9 lists the type of documents that are acceptable. The documents are divided into 3 lists: A, B and C. List A documents show both identity and authorization to work. If a new hire shows a document on list A, the employer can require no further identification.

List B documents show identity. List C documents show authorization to work. If a new hire does not have a list A document, he or she must show both a list B and list C document.

Many of us are used to showing a driver’s license and a Social Security card when we start a new job. The driver’s license is a list B document that shows identity and a Social Security cards is a list C document that shows authorization to work. But, those are not the only acceptable documents.

For example, certain foreigners may be in the United States with the authorization to work. Such foreigners may have an employment authorization document, with or without a photograph. If the new hire has an employment authorization document without a photograph, that is a list C document and shows authorization to work. The foreigner can show the employment authorization document, and a driver’s license, which shows identity, and be able to work. In this situation, the employer cannot require the new hire to show a Social Security card. If the employer does require the new hire to show a Social Security card before permitting the person to work, the employer has engaged in a discriminatory practice and can be held liable for damages to the new employee.

If a person shows a green card (also known as the I-551), that person cannot be required to show any other form of documentation. A green card falls under list A, and demonstrates both identity and authorization to work. Similarly, if a U.S. citizen shows an unexpired U.S. passport, that is sufficient to show both identity and authorization to work. Moreover, if a new hire shows an employment authorization document with a photograph, that document alone is sufficient to permit the new hire to work. In these situations, the employer cannot require further identification. If the employer does, the employer has engaged in a discriminatory practice and can be held liable.

In adopting policies to ensure an employee’s ability to work in the United States, the employer should be mindful of the potential employment discrimination liability. Reading Form I-9 thoroughly, and understanding it is a good first step in balancing the duty to comply with the duty to avoid discriminatory practices.