Chapter Two

• Jurisdiction: New York

Chapter two

What Every (Non-Immigration) Lawyer Needs to Know About Immigration Law

Jaclyn Kelley-Widmer
Beth Lyon
Stephen Yale-Loehr

I. Introduction

Over 41 million foreign-born people live in the United States. This group makes up over 13 percent of the U.S. population. No matter what kind of law you practice, you may represent someone who is not a U.S. citizen. Immigration law touches all aspects of law, including family law, corporate law, mergers and acquisitions, labor and employment law, criminal law, tax law, trusts and estates, real estate law, litigation, and workers' compensation law.

This chapter provides an overview of how immigration law intersects other areas of law. The bottom line: if you represent someone who isn't a U.S. citizen, contact an immigration lawyer to make sure your advice in another area of law doesn't adversely affect your client's immigration status.

II. Family Law

Immigrant families are in the spotlight due to controversial policies and significant media attention around recently arriving family groups.² In addition to issues surrounding immigrant families at the border, more traditional family law cases that commonly involve immigration issues include international adoption, marriage cases, and guardianship and custody where the parents, children, or both are foreign nationals.

A. International Adoption

Attorneys assisting with international adoptions must follow different procedures depending on whether the country of adoption is part of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.³ The Hague Convention is an international treaty that provides important safeguards to protect the best interests of children, birth parents, and adoptive parents who are involved in intercountry adoptions.⁴ Families adopting children from Hague Convention countries must work with a Hague Convention-certified Adoption Service Provider, in addition to an immigration attorney.⁵ These families must file a petition for adoption and get approval from the U.S. Citizenship and Immigration Services (USCIS) before adopting the child.⁶ The adoptive parents also must obtain an immigrant visa for the child before bringing the child to the United States.⁷ In contrast, when adopting from a non-Hague country, the petition forms differ, and the visa application should be submitted after the formal adoption proceedings, not before.⁸ Attorneys advising adoptive parents must carefully assess the specific requirements of each situation.

B. Marriage

Many immigrants believe that if they marry a U.S. citizen or a lawful permanent resident, they will automatically become eligible for a green card. In fact, only individuals who entered lawfully with certain types of visas are typically able to adjust status within the United States on the basis of marriage.⁹ Others must return to their country to obtain their visa, a system known as "consular processing." Those with undocumented time in this country may face a bar to return if they leave the United States.¹⁰ However, some of those to whom the bar applies may be eligible for a waiver of unlawful presence that could allow them to process stateside, or for a waiver of unlawful presence that allows return after consular processing.¹¹ Because the determination of whether an individual can become a resident requires a detailed analysis of their immigration history and present laws regarding waiver eligibility, it is wise to consult with an immigration attorney when counseling a couple with at least one immigrant in the pair.

C. Undocumented Children and/or Parents

Family law practitioners who work with undocumented or mixed-status families should be aware of some basic requirements for youth immigration relief so that they can identify eligible children they encounter. Undocumented children may be eligible for Special Immigrant Juvenile Status (SIJS), a form of relief that leads to permanent residency.¹² To qualify, the child must have been abused, neglected, or abandoned by at least one parent, and it must be in the child's best interest not to return to her home country.¹³ To pursue this relief through USCIS, a state juvenile court with jurisdiction over the child must make a predicate order including findings to this effect.¹⁴ Usually, attorneys seek SIJS predicate orders in a family law court setting, such as guardianship, custody, or dependency.¹⁵ Delinquency courts also may issue SIJS predicate orders.¹⁶ Additional courts vary by state.¹⁷

In most states, SIJS is no longer available after the child turns 18 because the juvenile court no longer has jurisdiction over the child. California and New York have modified their family court guidelines to permit jurisdiction up to age 21, in line with the SIJS statute.¹⁸ However, in 2018, the Trump administration announced that regardless of these new laws, it would not grant SIJS to applicants between the ages of 18 and 21.¹⁹

Timing is critical for SIJS cases. Family law attorneys may be the first to spot SIJS-eligible youth. Connect with an immigration attorney before filing any petitions in state court to make sure to capture the SIJS option before the child ages out.

Undocumented children and their parents may be eligible for asylum if they have experienced or fear that they will experience persecution in their country of origin.²⁰ Applicants typically must file their application for asylum within one year after entering the United States, so it is particularly important to make a timely referral to an immigration attorney.²¹

Finally, undocumented parents may come to a family law attorney to make a guardianship plan for their children if the parent is deported. Various organizations have prepared "toolkits" or guides for assisting immigrant families in preparing for potential separation.²² Such guides encourage immigrant parents to establish alternative caregiving arrangements, which could be legally formalized, and also suggest setting up a power of attorney to give another trusted person the power to make decisions for their children.²³ In addition, the New York Office of Court Administration's Advisory Council on Immigration Issues in Family Court makes public its numerous guidance memos for judges about the intersection of immigration and New York State family law.²⁴

III. Corporate Law

U.S. companies often hire foreign nationals as employees. In doing so, they must comply with immigration law, corporate law, and sometimes export controls regulations.

Companies must properly complete the I-9 employment authorization form for all employees, not just foreign-sounding or -looking employees.²⁵ Federal law prohibits: (1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; (2) national origin discrimination in hiring, firing, or recruitment or referral for a fee; (3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify; and (4) retaliation or intimidation.²⁶ Employers who violate these laws may be fined.²⁷

Mergers and acquisitions can be particularly tricky when a company has foreign national employees. Some visas are job- and employer-specific. If a business reorganizes, sometimes a company must file a new or amended visa petition if there are material changes in the terms and conditions of employment. For example, an E-2 visa holder may fall out of status if the company is sold to people from a country that does not have an E treaty with the United States. Or an L-1 intracompany transferee may fall out of status because she did not work for the acquiring company for a year before being transferred to the United States.

The export licensing regulations of the Commerce Department and the State Department deem an export to be made if a foreign national has access to certain controlled technologies. The regulations mainly cover the defense and high-tech industries, as well as other industries that use sensitive technologies. Companies that allow a foreign national access to controlled technology with an export license can be jailed or fined.²⁸

Foreign nationals in the United States as nonresidents cannot form an S corporation. However, they can form C corporations and LLCs.²⁹

IV. Tax Law

Foreign nationals may be subject to U.S. taxes, depending on their status and length of time in the United States.³⁰ Even undocumented immigrants may be U.S. tax residents if they spend at least half of the year in the United States. Green card holders are automatically deemed U.S. tax residents, even if they live abroad. If a foreign national is a tax resident, they must pay taxes on their worldwide income, not just on the money earned in the United States. If they fail to file a tax return, they may be become deportable.

Generally, only noncitizens authorized to work in the United States by the Department of Homeland Security (DHS) can get a Social Security number.³¹ Lawfully admitted noncitizens can get many benefits and services without a Social Security number. For example, foreign nationals do not need a number to get a driver's license, register for school, get private health insurance, or apply for school lunch programs or subsidized housing.³² If foreign nationals need a number for tax purposes, but they are not authorized to work in the United States, they can apply for an Individual Taxpayer Identification Number (ITIN) from the Internal Revenue Service (IRS), and numerous individuals do so. In 2015, 4.4 million individuals used an ITIN to pay taxes, and about half of all undocumented immigrants use an ITIN to pay taxes each year.³³ The IRS has a guide on how to obtain an ITIN.³⁴

V. Criminal Law

All non-citizens in the United States can face immigration consequences following an arrest or conviction, whether they are a lawful permanent resident ("green card holder"), an undocumented immigrant, or someone with another form of immigration status.³⁵ The Supreme Court's 2010...