K-1 Visa Adjustment of Status and the Affidavit of Support

A very common issue with K-1 visa holders, is whether they need an affidavit of support when they apply for adjustment of status in the USA. After-all, they would have provided an affidavit of support to the USA Consulate at the time that they were applying for the K-1 visa.

photo: MigrationPK

K-1 visa holders must marry their fiance within 90 days of entering the USA. Thereafter, they can file for adjustment of status from the K-1 visa to a green card. The immigration service in the USA will require another affidavit of support with the I-485 form. The question is what to do if the parties are separated or divorced, and the immigrant cannot get another affidavit of support.

Recently, in the case of Matter of Sesay, the Board of Immigration Appeals (BIA) confirmed that an immigrant can still get a green card even if they are no longer married to the USA citizen sponsor.. What the BIA did not discuss, is what happens to the requirement of the affidavit of support.

I have had several clients come to my office after entering on a K-1, getting married and divorced, and having their adjustment denied because they had no new affidavit of support. In one case, this month, the immigration service actually approved my client’s green card, even with no new affidavit of support. Fortunately she had a copy of the affidavit of support that was presented at the USA consulate when she got the K-1 visa. That was not enough initially , however, as the immigration service previously denied her adjustment case when she could not provide a NEW affidavit of support. I convinced them to reopen that case, and they approved it.

I have another K-1 adjustment case in Immigration Court with the same exact issue. Hopefully the immigration judge will agree with me, or the government lawyer will withdraw their demand for a new affidavit of support. In the end, however, the purpose of the affidavit of support is to prove that the immigrant will not become a public charge. You would think that the original affidavit would be enough, or that other evidence would be sufficient to allow fiances to get the green card to which they are entitled under the law.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Fighting Unemployment can Backfire on Employer

In a recent case from Pennsylvania involving a retaliation claim under Title VII involving an employer who opposed a former employee’s claim for unemployment compensation who had also filed a charge of discrimination, the court found that the employer could be liable.

Under Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.  A federal district court in Pennsylvania held that an employer’s request that its agent contest the employee’s claim for unemployment compensation and state that the employee was ”discharged for gross negligence causing a financial loss to the employer,” amounted to retaliation under Title VII.  The employee claimed that this appeal prevented her from continuing to receive unemployment compensation benefits and made it impossible to find new employment.

The employer argued that there was no adverse employment action in contesting the employee’s unemployment benefits claim because it occurred after her employment had already ended.  Even though the employer cited previous case law where a court found no adverse employment action because contesting unemployment came after employment ended (the case involved the Age Discrimination in Employment Act and not Title VII), it noted that in this case the employee was already collecting benefits then lost them, suffering economic harm and damaged her chances of procuring future employment.

For whatever reason, it seems that employers are contesting unemployment more often these days. However, as this case points out, there can be some risk for an employer who does so, thereby exposing themselves to liability under Title VII of the Civil Rights Act (a federal law that applies to employers with 15 or more employees).

The case is STEZZI v. CITIZENS BANK OF PENNSYLVANIA, Dist. Court, ED Pennsylvania 2012, Case No. Civil Action No. 10-4333.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Shintech Faces EEOC Race Discrimination Charge

Our law firm filed a race discrimination charge against Shintech, of Freeport, Texas, on behalf of a Hispanic worker who was recently fired.

photo: wbrz.com

The charge is currently under investigation at the EEOC. It alleges that our client was fired, after 13 years of employment, with no warning and with no valid cause, other than he was non-white.

It is alleged that our client and another non-white worker were both fired by the company, solely because of their race, and over a minor incident. The charge alleges that white workers who violated company rules and engaged in serious infractions were not fired, yet our client and another man were fired for a far less serious matter. The EEOC will conduct their investigation where they will determine if there is sufficient cause to support the charge of race discrimination.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Another DREAM Act-Deferred Action Case

Today, I got hired on another DREAM Act-deferred action type immigration case.

photo: Hartfordfavs.com

Too bad the President had to order this program and that Congress is so politicized that they can’t agree to help young people. My new client is a nice 18 yr old girl from Mexico who was brought to America as a baby. She knows how to drive, but can’t get a license; she finished high school, but can’t go to college without proper ID. The State of Texas makes it very difficult for undocumented immigrants to enroll in college and to get a driver’s license.

Thanks to the DREAM Act, or in particular, the President’s Deferred Action for Childhood arrivals program, I will hopefully get my 18 yr old client a work permit, social security number and a driver’s license in just a few short months. If you want to know more about this program, I made a video about it which you can watch here.

Almost 100,000 young people have applied under this new program. It is believed that hundreds of thousands more are eligible, but have not come forward yet for various reasons. Some individuals worry that they may be disqualified due to an arrest or a short visit abroad. Our law firm takes on those more difficult cases, as well, and we do consultations to discuss such cases in-person, or via Skype or phone.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Court Quashes Subpoena for Text Messages

In a sign of how technology is being used in the courtroom, a federal judge had to quash a subpoena last week for text messages of our client.

photo: DarkGovernment

In this case, our client filed a lawsuit for overtime pay against his former employer, Liberty Power Corporation. The lawsuit alleges that he worked overtime and the company failed to pay him for it. The company issued a subpoena to AT & T to get a copy of all of our client’s cell phone text messages. They argued that maybe our client was on his cell phone and not really doing the company’s work after hours. We told the judge that the company was just trying to harass our client with the subpoena and there was absolutely no reason why they should need to see text messages.

The judge agreed with us and quashed the part of the subpoena that would allow company lawyers to read my client’s text messages.

This is just an example of how new technology can allow parties in a lawsuit to invade a person’s privacy. Had we not jumped-in and complained to the judge, the former employer would have been reading all of our client’s personal text messages.

 

 

 

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Israeli Couple Finally Eligible for Green Card

I was hired yesterday by an Israeli couple who have been living illegally in the USA for over 20 years. They came to America legally with tourist visas, fell in love here, got married here, and never left.

The couple had a baby in the U.S., but having a baby does not allow the parents to get any legal status. At the same time, the baby is automatically a USA citizen, by being born in America. However, once that baby grows and becomes an adult, it can sponsor its parents for lawful status when it turns 21 years old.

Now, 21 years later, this couple’s baby is turning 21, and can now sponsor her parents for legal status in the USA. The parents, who have been living in the shadows for over 20 years, have been running a business, paying significant taxes, and generally helping the economy, all with no legal papers.

I am looking forward to helping them through the massive amounts of paperwork to get their legal residence, now that their daughter is turning 21. They can finally come out of the shadows and live an even more productive life in America.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Disability Naturalization – A Way for Older Residents to Become a USA Citizen

In order to become a USA citizen, a person, generally, must first be a lawful permanent resident (green card) for a number of years. In addition, the person must be able to speak English, pass a history test in English and be able to read and write English.

photo: Flickr

Many older residents are unable to understand English sufficiently to pass the test, and therefore never get USA citizenship. There is a solution for those struggling with English, and that is through disability naturalization.

The law provides that if a person is disabled, the English language requirements can be waived. At our law firm, we have helped many people become U.S. citizens, where they could not learn English. In order to qualify, the individual must be certified by a doctor to have a disability that prevents them from learning English. Many times this could be onset dementia, Alzheimers, or other less tragic illnesses that may be affecting memory or language skills.

Any older person who cannot get their naturalization due to lack of English skills should definitely explore citizenship through naturalization through the disability waiver.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

EEOC Charges Against LNR Property LLC Go to Investigative Unit

After a failed mediation at the EEOC, our client’s charges of race and national origin discrimination against LNR Property LLC, of Miami Beach, are being returned to the EEOC’s investigative unit.

The charges were filed in April 2012, after our client was fired. Our client was at the firm for over 10 years. He is a US citizen, born in Haiti. He says that he was the only black person in his department and one of the few non-Hispanics. He says that most of his Hispanic co-workers spoke in Spanish (which he could not understand) and constantly piled work on him, while they took constant breaks and often sat around with nothing to do.

The EEOC will investigate these charges to determine if LNR has violated the law. If the EEOC determines that LNR has violated the law, they may seek conciliation or the EEOC could file a lawsuit. Alternatively, the EEOC can issue a Right to Sue letter, allowing our client to pursue the matter directly in Federal court.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Deferred Action and Work Permits: No Need to Wait in Long Lines

The front page of Thursday’s New York Times, showed a long line of people at a local U.S. Immigration office seeking information and forms about the new rule allowing work permits and deferred action status for young people.

All of the information and forms are available online at the USCIS website, and it is ironic that young people, the largest users of everything internet-related, would be out in the hot sun lining up at the immigration office. Every answer to every possible question, in general, is available on the CIS website. Of course, there are grey areas, and from my perspective, the worst person to ask about grey areas would be an immigration office employee who does not adjudicate the applications. Applicants with grey area questions or other serious immigration issues would be well-advised to seek the help of a competent immigration lawyer.

Finally, while the government made the forms and information available on August 15, the local offices are not accepting the completed applications. Like all immigration forms, the applications must be mailed in, and I always recommend it be done by certified mail.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.

Deferred Action “Amnesty” for Young People Has Complicated Instructions

In true government fashion, the new deferred action program has 9 pages of instructions on how to fill out the form and how to be qualified. It reminds me of reading the instructions to tax forms, although in this situation, the immigration service uses a larger font than the IRS, making the instructions more reader friendly. Either way, if an applicant has any issues or does not have lots of documents, they may have difficulty proving they are entitled to deferred action and the work permit that comes with it.

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About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at houstonlaw@aol.com, 713-850-0066 or 305-538-6800.