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

eA 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 bruce.coane@gmail.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.