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Monthly Archives: April 2017

What Happens to Children Who are U.S. Citizens When Their Parents are Deported?

We recently wrote about undocumented immigrants with U.S. born children making arrangements for others to care for their children in case the parents are deported. Many parents take steps to legally give power of attorney over their children to U.S. citizens or other immigrants who are in the country legally. Unfortunately, this is not a choice that is available to all parents, either because they have no one to turn to who is willing to care for their children, or because they are deported before they can make plans.

When undocumented parents of underaged children are deported without notice, the most likely outcome is that the children end up in foster care. The parents often cannot challenge the placement of the children in foster care because the parents are in detention or already deported. When the parents are deported, there is no requirement for their children to be deported along with them because the children are U.S. citizens. The children are taken into the state’s foster care system, and in some cases, eventually put up for adoption after parental rights are terminated.

The termination of parental rights does not have to be voluntary, and in some cases, if the court finds that a parent has abandoned the children, even when the parent is absent against his or her own will, parental rights can be terminated. The criteria for what makes someone an unfit parent is not always clear, and it is easy for a parent’s illegal immigration status to be used as an excuse to terminate parental rights.

Deported parents can fight for their children from their home countries after deportation, but that is often a difficult situation. They also may not be able to see their children and may be restricted in other forms of communication.

In some rare situations, it is possible for parents who are primary caregivers to their children to avoid being deported on humanitarian grounds. However, if the children have another parent in the U.S. who is not subject to deportation, the undocumented parent is likely to be deported even if he or she is the primary caregiver.

Fortunately, in most states, a sibling can take on the role of guardian to younger siblings if his or her parents are deported. This can be the best way to ensure that the children stay together and they can be eventually reunited with their parents.

Undocumented immigrants who are married to U.S. citizens or who have children who are over the age of 21 years old who are U.S. citizens should explore the legal options available to them to change their status. The process may often be expensive and may require the undocumented immigrant to return to his or her home country for a period of time.

In the past, not every undocumented immigrant who had an avenue to apply for legal status did so because of the expense and the lengthy process. However, under changing immigration policies, it is best for undocumented immigrants to take advantage of any legal option that can lead to legal status, instead of waiting for immigration officials to come knocking.

Contact us for Legal Assistance

If you are an undocumented immigrant who may be eligible for legal permanent residence or naturalization through a family member sponsoring your application, contact us for more information about eligibility and the application process. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.

DACA Recipients and the Fear of Deportation

Undocumented immigrants who were brought into the country illegally as children were given an opportunity to apply for protection from deportation through the Deferred Action for Childhood Arrivals (DACA) program implemented under the Obama Administration in 2012. Under this program, DACA recipients, also known as Dreamers, were allowed to work legally and go to school as long they registered with immigration officials and met other conditions. It has generally been understood that DACA recipients would not be subject to deportation if they consistently met their requirements.

Recent news of a California resident who is reportedly the first DACA recipient to be deported since the change in government may have other DACA recipients worried that the safety afforded by the program may soon become a liability because registration make it easier for them to be found by immigration officials. However, while the news of DACA recipients being deported may be surprising, nothing has changed in the law to specifically allow for the deportation.

Deportation was always possible under the DACA program, but a DACA recipient was eligible for deportation if he posed a threat to national security or public safety. This means that for the most part, as long as the DACA recipient did not get into major trouble with the law, the chance of deportation was low. This also means that currently immigration officials may exercise more discretion to deport more DACA recipients based on a more relaxed definition of who poses a threat. However, there has been no public announcement of a shift in policy to increase the deportation of DACA recipients.

If you are a DACA recipient and your status is not expired, you can take some steps to ensure that you are not immediately deported if immigration officials pick you up on another matter. The most important thing is to make sure you carry your DACA documentation with you at all times. This will not protect you in every case, and you may still get detained for a period of time. However, immediate deportation will be less likely if you can show you have current DACA status.

Another key step is to know your rights. Police cannot stop you to question you about your immigration status without probable cause or a warrant. You also have the right to remain silent if you are arrested, and you should exercise that right. Do not give the police details that could hurt you later. Finally, if you are picked up and detained, do not sign any paperwork presented by immigration officials without your attorney.

The feeling of security that DACA may have given some may be decreasing, and eligible dreamers who had not yet filed applications for DACA status may be more reluctant to do so now. There are benefits to applying for and updating DACA status, however, before applying, it may be best to talk to an immigration attorney and decide if it is the best move for you.

Contact an Experienced Immigration Attorney

If you have an immigration related issue, or have received a removal order for your deportation, you should contact us for legal assistance. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.

Can Undocumented Workers Receive Workers’ Compensation?

Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.

States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.

If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.

If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.

While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.

However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.

Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.

Contact Us for Employment Related Immigration Issues

All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.

Birthright Citizenship and Immigration

Birthright citizenship has at times been a controversial topic when discussed in the context of immigration. This is because critics argue that allowing children born in the United States to automatically become citizens encourages illegal immigration. However, birthright citizenship is guaranteed under the United States constitution and cannot be changed without a constitutional amendment.

What does this mean for foreign citizens who are in the country, legally or illegally, when they give birth? Generally, the immigration status of the mother and father of a child born in the United States does not change the minute the child is born and acquires automatic citizenship. In some cases, the child may also automatically acquire the citizenship of the parents’ country upon birth, but this does not mean that the child is not also an American.

Parents cannot renounce American citizenship on behalf of their children. Therefore, a parent who does not wish for his or her child to gain automatic citizenship should not give birth to the child in the United States. There are many benefits to citizenship, so it is rare for a parent to want to renounce the child’s American citizenship.

This is part of the reason that there is a booming business in what is known as birth tourism. This term is used to describe travel to the United States, generally on tourist visas, by foreign women who are pregnant with the goal of having their children in the country. Once the child is born, the parents return to their country of origin and raise their children there.

When the child grows up, he can apply for lawful permanent resident status for his parents if he so chooses. In addition, the child can access other opportunities that would be difficult for a foreigner to get, for example, a better chance at admission to a university, employment in the country, or owning property.

Pregnant women traveling to the United States for the sole purpose of giving birth here may run into some issues gaining a visa and being allowed into the country. Immigration officials may require evidence that the woman does not intend to stay permanently within the country, if she is applying for a nonimmigrant visa. The parents may also be expected to prove that they will be able to pay for the cost of the delivery and any other medical complications that may arise. This is because immigration officials do not want the mother and child to be dependent on government resources.

It is important to remember that even if the consulate or embassy in your home country approves a visa, the border patrol agent at the border could still deny you entry into the country. It is therefore best to have a backup plan.

Contact Us for Legal Assistance

If you are an American citizen seeking to sponsor an application for lawful permanent residence on behalf of your parents or siblings, contact us for assistance with the process, and to learn more about what information you will be required to provide in the application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.