What Questions Regarding Immigration Status Can an Employer Ask During the Hiring Process?

The process of interviewing for a job can be made more stressful for many applicants, particularly for immigrants, if a company engages in screening policies that, intentionally or not, discriminate.

An employer is legally permitted to ask an applicant if he or she is authorized to work in the United States. The employer may also ask if the applicant now or in the future will need employment sponsorship. If the applicant will need sponsorship, an employer may legally choose not to hire that person. However, if an applicant has indicated that he or she is authorized to work, the employer may not ask for evidence of such work authorization until the person is actually hired. A potential employer cannot ask an applicant whether he or she has a green card.

Once someone is hired for a job, the employer will need to complete Form I-9, Employment Eligibility Verification within three days. An employee must provide documentation evidencing both identity and his or her authorization to work. The I-9 form has lists of acceptable documentation for each category.

If an employee submits a document (or documents) that appears on the list, an employer cannot ask for a different type of document. Therefore, if a foreign national provides a valid Driver's license and a Social Security card that does not list a restriction "valid with INS work authorization only" then the foreign national has met the requirements of the I-9 form. Since the employee has submitted documentation to establish identity and work authorization, an employer would not be allowed to ask for a copy of the employee's green card or employment authorization card simply because the employee "appears" to be a foreign national. An employer cannot demand a specific type of documentation but must allow an employee to submit any documentation that satisfies the I-9 requirements.

A future blog entry will focus on the requirements of E-Verify and what it means for employers and employees.

Temporary Protected Status Designated for Haiti

Department of Homeland Security Secretary Janet Napolitano has designated Temporary Protected Status (TPS) for Haiti due to the devastating earthquake and aftershocks. The duration of TPS designation for Haiti will be 18 months. As a result, Haitians in the US (and other individuals without nationality who last habitually resided in Haiti) will be able to file applications for TPS. DHS estimates that approximately 100,000 to 200,000 individuals will be eligible for TPS.

To be eligible for TPS, individuals must:

* Be a national of Haiti, or a person without nationality who last habitually resided in Haiti
* Have continuously resided in the U.S. since January 12, 2010.
* Have been continuously physically present in the U.S. since the date of the Federal Register Notice publication, and
* Meet certain immigrant admissibility requirements, and other TPS eligibility requirements (See INA § 244(c), 8 U.S.C. § 1254a and 8 C.F.R. §§ 144.2-244.4.)
* Satisfactorily complete all TPS application procedures as described in the Federal Register notice announcing Haitian TPS, the TPS application instructions (Form I-821), and regulations at 8 C.F.R. §§ 244.6 - 244.9.

When to apply for TPS:
The registration period will start on the date the Federal Register notice is published and continue for 180 days from that date. Applications must be filed during this 180-day registration period.

Individuals must register by filing both an Application for Temporary Protected Status (Form I-821) and an Application for Employment Authorization (Form I-765), with any appropriate fees.

For more information regarding how to apply for TPS, please see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e54e60f64f336210VgnVCM100000082ca60aRCRD&vgnextchannel=e54e60f64f336210VgnVCM100000082ca60aRCRD

Controversial Detention Center in Manhattan to be Closed

Immigration and Customs Enforcement has announced that next month it will close a controversial detention center in downtown Manhattan and transfer the center’s roughly 300 detainees to a county jail in Hudson County, New Jersey. Known as the Varick Street Detention Facility, the detention center is used to process males who are subject to removal (deportation) due to criminal convictions. The Varick Street jail has long been criticized for falling short of national detention standards, not allowing weekend visits for families, and failing to allow lawyers adequate phone access to detainees, among other complaints.

While Varick detainees will be transferred to the Hudson County Correctional Center by the end of next month, they will still return to Varick Street for immigration court hearings. The Hudson County Correctional Center, located in Kearny, NJ, is purported to be an improvement over the Varick Detention Center.

Possible TPS for Haiti?

In the wake of the devastating earthquake that has struck Haiti, the Obama administration has wisely suspended the deportation of Haitians. For years, however, many have called for the administration to designate Temporary Protected Status ("TPS") to Haitians, due to the series of natural disasters and political upheaval that have afflicted Haiti.

TPS is a temporary immigration status granted to eligible nationals of certain countries (or persons without nationality who last habitually resided in the country) designated by the Secretary of Homeland Security because those countries are experiencing temporary negative conditions, such as armed conflict or environmental disasters, that make it difficult for the nationals to return safely or for the countries to accept their return. Individuals who are given TPS are granted a stay of removal and allowed to work in the US during the designated TPS period.

As one positive sign that TPS designation for Haitians may soon come to pass, Secretary of State Hillary Clinton stated the following Thursday on CBS’ Early Show:

“Well, we have, as you know, many Haitian Americans. Most are here legally. Some are not documented. And the Obama administration is taking steps to make sure that people are given some temporary status so that we don’t compound the problem that we face in Haiti.”

We urge that the Obama administration will grant TPS to Haitians very soon.