Saturday, September 1, 2012

Deferred Action: Do I Need a Lawyer?

I had a consultation last week with a young woman interested in the new deferred action for young people program.  She admitted that at first, she thought that since the forms all looked straight forward, and since she could find all of the documents USCIS wanted, she thought she could do it all on her own.

But then, she saw one of the questions in the Form I-765WS, or the worksheet for the application for employment authorization.  Specifically, the worksheet asks for her to list her current annual income.  She paused when she got to this question, because by admitting that she has a current annual income, she is admitting that she is working illegally.

I think this is a very savvy point, and one that a lot of immigration lawyers who are writing on this topic are missing.  The grant of deferred action is discretionary.  That means, the Government is by no means obligated to grant it to anyone.  By filling out these forms and sending them to the Government, you are calling attention to yourself.  If the Government denies the application, there is always a possibility that the applicant will be placed in removal/deportation proceedings.

If you put an income down, you are admitting to working illegally.  This is itself a reason for the Government to remove you from the United States.  On the other hand, if you put down zero, when you were in fact working illegally, you have just lied in an attempt to gain an immigration benefit.  Lying on an immigration form can earn you a lifetime ban from ever receiving a visa.  And remember, the FBI is doing a background check on you.

Personally, I would find it hard to believe that any person who was brought here under the age 16, and is currently over 18 has not worked "under the table."  If people are being honest, then the Government will receive thousands of applications with people admitting to illegal work.  Now this is just my opinion, but I would not expect illegal work in and of itself would lead to a denial of deferred action.  But I cannot guarantee that.

The real concern is whether USCIS will ask follow-up questions.  If you admit to an income, then USCIS could follow-up with a Request for Evidence.  That is, the Government may ask how you earn your income.  For one thing, the Government could be looking for people who have used another person's green card, or have claimed to be a U.S. citizen, in order to get work.  So, it is entirely possible that the Government will ask you how you got your job, where you worked, and whether you used a false ID card.  It may also spark the Government to ask whether you have been paying taxes on your income.

This is where things could get treacherous.  Using a false ID to get work is a crime.  Using an ID that you know belongs to someone else is identity theft, which is an aggravated felony and can earn you a lifetime ban from receiving immigration benefits.  Claiming to be a U.S. citizen is also a kiss of death for any future immigration benefits.

But, you would not be the only person to be put at risk by responding to these types of questions.  USCIS can ask for details of your job, including your employer.  If your employer has hired you knowing your immigration status, then the employer has violated the law and can face civil and criminal penalties.  Sure, if your job has been with a local fast food restaurant, you may not care too much for your employer's liability.  But, what if you worked for your uncle in his construction business?  Do you really want to risk having your uncle found to be in violation of U.S. employment law?

So you see, even answering a simple question on an immigration form can have real, adverse consequences.  If you are going to apply for deferred action, you need to know the full risk you are taking.  The best person to explain the risks is an experienced immigration lawyer.  Even then, many experienced immigration lawyers are missing some of the possible pitfalls present in this Government program.

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