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Orange County Immigration & Naturalization Law Blog

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Employment immigration represents a vital opportunity

Modern California businesses that want to bolster their work forces have many avenues for doing so. Within the field of employment immigration, for instance, a range of schedule types and classifications makes it possible to expand your talent pool beyond national borders and forge important international connections in the process. Like other forms of employment, however, these immigration-based workforce supplementation methods and allowances are guided by a host of state and federal laws.

At Wilner & O'Reilly, our job is to impart your organization with the knowledge it needs to succeed and source top talent. We've represented countless employers and their workers as they sought visas, labor certifications and waivers. We've also assisted firms that needed to demonstrate their regulatory compliance for U.S. Department of Labor and U.S. Immigration and Customs Enforcement audits. Our ability to conduct strategic analyses of a given situation and find solutions that help you benefit from the law allows us to promote a healthier immigrant workforce culture.

Getting permission to work in California

One way to become a permanent resident in the United States is through an offer of employment. Either the person wishing to come to the country can petition for a green card based on a job offer, or the employer can petition for an employee's green card using Form I-140. Those who are currently living outside of the country can become permanent residents through consular processing.

Consular processing involves the USICS coordinating with the Department of State to provide a visa when one becomes available. This assumes that the I-140 petition has been approved. Those who are living outside of the country can use Form I-485 to ask for an adjustment of their status to permanent resident. When submitting the I-485 form, it is a good idea to submit the approved Form I-140.

Undocumented workers protected under California labor laws

California residents may not be aware that the state's labor laws protect undocumented immigrant workers. While the U.S. Supreme Court has ruled that federal law prevents the National Labor Relations Board from reviewing cases involving these workers, employment immigration attorneys in California may pursue claims on their behalf for violations of state laws that regulate matters such as working conditions and pay.

These laws provide legal protections for workers in California even if they are not legally authorized to be working in the United States. Workers must be paid at a rate at least equal to the state's minimum wage, and they are entitled to overtime pay after working either eight hours in a day or 40 hours over the course of a week. Undocumented workers may pursue legal remedies if their employer has violated California wage laws, and they may report unsafe work conditions to Cal/OSHA.

What subjects are covered on the U.S. naturalization test?

In order to gain U.S. citizenship after birth, in California or any other state, people may apply for derived citizenship or they may apply for naturalization. Derived citizenship is based on a parent already being a citizen. Naturalization is governed by the Immigration and Nationality Act.

The naturalization process begins with the filling out and filing of the Application for Naturalization, Form N-400. Sometime after the application is filed, the applicant is required to pass a naturalization test that covers ability with the English language and knowledge of U.S. civics.

Immigration for family members of citizens

California residents who are U.S. citizens and who wish to bring spouses, unmarried children under 21 or parents from a foreign country to the United States can do so under certain conditions. Those individuals can get a visa number immediately, but some other family members may be able to do so as well. Children who are married or over the age of 21 as well as siblings may also be able to get a green card.

The difference for these types of relatives is that they may have a waiting period before they can obtain a visa because the government only permits a certain number in this category to immigrate per year. This process can begin outside the United States or after an individual has arrived in the United States.

Evolving rights of undocumented workers in California

The California Supreme Court recently handed down an important ruling in favor of undocumented immigrant employees, which states that undocumented immigrants now have the legal right to sue their employers for certain illegal activities. Now under California law, if an employer reports an undocumented employee to immigration authorities as retaliation for a lawsuit or for reporting illegal treatment in the workplace, the business of that employer could lose its license, and the employer could face charges of criminal extortion.

Previously, undocumented immigrants have avoided reporting their employers for fear of deportation. As one undocumented employee stated, he was afraid to come forward about his employer's refusal to pay him because he did not want to create larger problems in the future. The employee, who worked in a local restaurant, noted that the communities in which he was working are small, and industry employers tend to know each other. The employee feared that if he stood up for his rights to fair wages, other potential employers would retaliate against him as well.

ACLU reaches settlement with immigration authorities

Government agents may now be held accountable for coercing immigrants in California to sign voluntary departure forms after settling a lawsuit filed by the ACLU on behalf of a group of immigrant plaintiffs. The lawsuit accused the government of using intense pressure to compel illegal immigrants to sign the voluntary departure forms, which allowed the government to bypass the trial process to which these immigrants are entitled.

According to one estimate, approximately 70 percent of the 400,000 people being deported from the U.S. have not been seeing a judge prior to their departure. The Border Patrol has been targeting immigrants who have already been living in the U.S. for years and who have already adjusted to an American lifestyle. In 2009, Border Patrol agents deported three students who were on their way to high school. In another case, an illegal immigrant who had been residing in the U.S. since 2001 was deported after she and her 13-year-old American-born son were stopped on the street. Another man said that he had been living in the U.S. for 11 years when he was asked to sign a voluntary departure form and return to Mexico.

Requirements for immigrants seeking health care

Orange residents may be interested in some of the difficulties that immigrants and others are having with signing up for health care under the new California insurance exchange. Eligibility requires submitting proof of legal residency or citizenship, but there may be issues in delivering this message.

After the passage of the Affordable Care Act, California instituted its implementation of the program, dubbed Covered California. Since this insurance exchange was established, over 1.2 million residents of California have signed up for health care. Generally, the person's citizenship or legal status in the country is checked against a federal database and automatically cleared. When this does not work, they must submit proof of their status in order to be eligible for coverage.

180,000 California immigrants taking advantage of DACA program

California residents who are interested in immigration issues may wish to know some statistics about the implementation of the DREAM Act in California. While many have applied for deferred deportation, there are still many others who are not taking advantage of the program, according to reports.

According to a report from U.S. Citizen and Immigration Services, 180,000 young people in California have applied for relief from the threat of deportation under the Deferred Action for Childhood Arrivals program. This number is the highest in the nation. However, the Migration Policy Institute says that this number represents only around half of those in California who would be eligible for the program.

What is dual citizenship?

Dual citizenship is basically when an individual is a citizen of two countries simultaneously. Some California residents might hold dual citizenship if they were born in the U.S. to immigrant parents or if they were born in another country to a citizen of that country and a U.S. citizen. Someone who has become a naturalized U.S. citizen can also seek to regain citizenship in his or her country of origin, which will cause the individual to have dual citizenship.

Someone with dual citizenship does have several advantages over someone who is a citizen of a single country, such as the ability to become a resident of either country without excessive legal complications. However, there can be drawbacks as well; someone with dual citizenship might have to pay taxes to two different countries, regardless of where the individual lives. Each country might also have residency requirements.