Government, Human Resources, and Law

Employers fall in middle of new immigration-waiver process

February 12, 2013
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Avila

As Congress prepares to debate legislation based on the immigration reform proposal presented in January by eight senators — four Republicans and four Democrats — temporary changes are already taking effect across the country.

The U.S. Citizenship and Immigration Service recently announced an administrative change to its waiver process for unlawful immigrants seeking citizenship in the U.S.

Undocumented immigrants who have spent six months or more in the U.S. and are seeking citizenship must first apply for and receive the waiver to overcome the unlawful presence inadmissibility bar. Previously, the waiver process required them to leave the country.

The point of the rule is to avoid extreme hardship for immediate family members of the individual applying for U.S. citizenship.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” Secretary of Homeland Security Janet Napolitano said.

Luis Avila, an attorney with Grand Rapids-based Varnum, explained that the new provisional waiver process allows qualifying immediate relatives — a spouse, children and parents — of U.S. citizens currently present in the U.S. and seeking permanent residence to apply for and receive provisional unlawful presence waivers without leaving the U.S.

In the past, the waiver process could take up to a year. The new rule reduces the amount of time it takes to get the waiver, so that unlawful immigrants are able to return to work more quickly.

“It is important to note that the laws governing the standards for adjudication of the waiver and immigrant visa have not changed,” Avila said. “This new process does not lower or raise the standard for a successful waiver of inadmissibility or immigrant visa application.”

As unlawful immigrants seek citizenship through the new process, employers should be aware of a few important details.

“Employers should be very aware that some of these immigrants — whether it’s the DREAMers for the deferred action or people that are seeking to establish extreme hardship — will often look for letters from their employers or some sort of employment verification to show immigration that they’ve been employed or earn a certain amount or to show they’ve been physically present in the U.S. for an extended period of time,” Avila said.

“Oftentimes, employers are willing to help, because they like the employee and they want to help them. If they can help them get legal status, then great. The problem is that once employers know that they are employing individuals that don’t have authorization, they will automatically create a potential obligation and liability for themselves.

“Federal immigration law provides civil and criminal penalties for businesses that knowingly hire or continue to employ unauthorized workers," Avila added. "So employers should be very aware that providing a letter or some document specifically for these purposes and then continuing to employ the individual could result in significant penalties for them.

“We recommend that they place the employee on unpaid leave until they obtain work authorization.”

The DHS has reported that up to 25,000 immigrants apply for the waivers each year. Most of those waivers are granted.

The new process will take effect March 4.

Avila is seeing an increase in interest regarding the new process and said it is due to a lessened risk of leaving the country and not being able to return for years.

“They are willing to take advantage of this, because, at the end of the day, these are people who are already facing the potential of being arrested by immigration on any given day,” Avila said.

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