September 2012

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com

 

United States Citizenship and Immigration Services (USCIS) has announced the extension of the validity date noted on the existing I-9 Form (August 31, 2012). The form's expiration date can be found in the top right hand corner.

 

This spring, USCIS published a revised I-9 form and requested comments from the public for a sixty-day period that ended in May. It was widely anticipated that a variation of the new form would be circulated and implemented prior to the August 31, 2012 expiration date. However, despite receiving thousands of comments, including from Maggio + Kattar, USCIS has re-opened the comment period on the new I-9 form through late September 2012. Employers should continue their existing I-9 compliance practices and consider providing the agency with any additional comments before the new comment period closes on Thursday, September 27, 2012.

 

To learn more about best practices in I-9 compliance and E-Verify, please join Managing Shareholder Jim Alexander and Director of Compliance, Theresa Nahajzer, along with our partners, INS Zoom on a Webinar entitled: "E-Verify is it really as easy as 1-2-3?" on Thursday, September 20th from 2-3 p.m. EDT. To learn more, click here.  

Being a U.S. taxpayer with international assets and income is no fun. U.S. taxpayers with foreign assets and financial interests must file a variety of forms with the Internal Revenue Service and the U.S. Treasury Department. Consequently, filing an incorrect return, or failing to file a return, is not uncommon. According to the Tax Payer Advocate Service 2011 Report to Congress, the filing requirements are detailed in at least eight relevant IRS publications, totaling 563 pages and the documents referred to in the publications adds 4,727 pages of instructions, 667 pages of forms, and another 1,928 pages of form instructions, for a total of 7,322 pages.

 

The United States Supreme Court has now weighed in on U.S. taxpayer obligations, highlighting the risk of deportation or removal from the U.S. if a tax payer does not meet her or his filing requirements, under certain circumstances. In 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false corporate tax return for a restaurant he operated with his wife. Ms. Kawashima for her part, pleaded guilty to aiding and assisting in the preparation of a false tax return. The total tax loss to the U.S. government was in excess of $200,000. The Kawashimas had been U.S. lawful permanent residents since June 1984. U.S. Immigration and Customs Enforcement ("ICE") charged the couple with removability as a result of their conviction in 2001 of so-called aggravated felonies. The U.S. Supreme Court subsequently upheld their removal.

 

In Kawashima v. Holder, the U.S. Supreme Court interpreted the Immigration and Nationality Act to mean that willfully making and filing a false tax return, or aiding in doing so, is an "aggravated felony" which makes a person subject to removal if the government's revenue loss exceeds $10,000. It is important to mention that the burden of proof that is necessary for the government to establish the charge of filing a false return is not as difficult as with its "bigger brother," tax evasion.

 

While a minor mistake on a tax return will not amount to being a removable offense, U.S. taxpayers with international assets and income should take steps to avoid major problem areas and must be aware of the following reporting and filing requirements:

 

1. A U.S. taxpayer must report all worldwide income on Form 1040 regardless of whether foreign taxes need to be paid. Those foreign taxes can be used to lower U.S. taxes. Income includes not only ordinary income like wages, interest and dividends, but also capital gains and royalties.   
2. A foreign bank account must be reported on Schedule B, Part III of Form 1040 regardless of its value and the taxpayer must list the name of the country in which the account is sited.   
3. Form 8938 reporting applies to specified foreign financial assets in which the taxpayer has an interest in taxable years starting after March 18, 2010.  For most individual taxpayers, this means they must file Form 8938 with their 2011 income tax return if the aggregate value of the specified foreign financial assets is more than the reporting thresholds of more than $50,000 on the last day of the tax year ($75,000 at any time during the tax year) for unmarried taxpayers and those married taxpayers who file separate income tax returns. The threshold amounts increase to US$ 100,000 and US$ 150,000, respectively, for married taxpayers filing jointly.   
4. U.S. persons who have an interest in or signatory authority over a foreign account with a value over $10,000 are required to file the FBAR (Foreign Bank Account Report) form, also known as Form TD F 90-22.1.

U.S. persons may also have to file additional forms with regard to interest in foreign entities (including trusts) and the receipt of foreign gifts.

 

A taxpayer who fears that he or she may not be in compliance should consider participating in the 2012 Offshore Voluntary Disclosure Procedure ("OVDP"). It includes a penalty framework, which requires individuals to pay back-taxes, interest and penalties for up to eight years and a penalty of 27.5% (in some cases only 5%) of the highest aggregate balance in foreign bank accounts/entities or value of foreign assets during that time.

 

But most importantly for immigration purposes, participants in the 2012 OVDP will avoid criminal prosecution and the danger of deportation or removal from the U.S.

 

* We sincerely thank our colleague, Max Riederer van Paar, of the law firm Rubin, Winston, Diercks, Harris & Cooke LLP for providing this critical tax update. To learn more about this case or to consult with Max on any international tax matters, please visit his website. 

U.S. Customs and Border Protection ("CBP") has announced plans to eliminate Form I-94, Arrival/Departure Record. CBP has indicated that the reasons for eliminating the Form are twofold. First, CBP already has access to the information gathered on the Form I-94, both through the foreign national's application for a nonimmigrant visa at the U.S. consulate as well as the web-based Advance Passenger Information System (APIS).   Further, CBP has indicated that eliminating Form I-94 will save the agency considerable money and resources.

 

In lieu of the I-94, CBP plans to issue an admission stamp in the nonimmigrant's foreign passport.   This admission stamp will include a handwritten notation which includes the status and authorized period of stay. CBP will also create an electronic record for arriving nonimmigrants.

 

Originally, CBP had planned to gradually phase out the I-94 form beginning in the late summer 2012, and only at a few smaller airports. However, CBP's most recent plans call for imminent, system-wide elimination of the form. Nonimmigrants arriving at air and seaports using the web-based APIS will no longer receive a functional I-94. However, nonimmigrants arriving at a land border, and certain classes of arriving aliens, such as refugees, will continue to be issued a valid Form I-94.

 

The elimination of Form I-94 raises several issues, and many unanswered questions about the process remain. First, it appears that CBP may be acting outside the scope of its regulatory authority, as the current regulations require the issuance of Form I-94. Second, employers who are completing I-9 forms will face difficulties, as the regulations currently authorize employers to accept a foreign passport and properly endorsed I-94 card as proof of employment eligibility and identification. Third, this new procedure exposes foreign nationals to possible denials of a requested extension or change of status because they do not have the required I-94 card.

 

The unilateral actions of the CBP in acting outside the scope of its authority are similar to the type of behavior exhibited by the immigration agencies in the time period after September 11.   If you have further questions on how these changes may impact you or your employees, please contact the legal professional you work with at Maggio + Kattar.

The U.S. Department of State (DOS) October 2012 Visa Bulletin reports that the employment-based second preference (EB-2) "worldwide" category moved forward substantially to January 1, 2012. Additionally, other employment-based immigrant visa categories that were recently "unavailable" will become available again albeit with continued retrogressed dates (EB-2 India: September 1, 2004; China: July 15, 2007). The 2013 fiscal year's visa numbers will become available on October 1, 2012 and are included in the October Visa Bulletin.

 

In the summer, DOS had anticipated that the worldwide EB-2 quota would again become current with the new fiscal year's visa numbers available on October 1, 2012. Unfortunately that has not occurred. A possible explanation is a continued "upgrade" of cases where an individual files a new case in the EB-2 category but had previously established an EB-3 priority date.  DOS has observed this happening more frequently, of late, in the worldwide category although it has been routine for nationals of India and China in the past as these nationalities have long experienced quota backlogs across the employment based third preference category.  

 

As previously reported in our May 2012 Immigration News + Analysis, the EB-2 category for nationals of India and China became unavailable in June after rapid movement forward during the earlier part of fiscal year 2012.  For the new fiscal year 2013, DOS had predicted that the EB-2 category for India and China would move forward to August or September 2007; however, China will be at July 2007 and India only moves forward to September 2004.   Based on prior DOS reports, it is not expected that substantial movement in the India or China immigrant visa numbers will occur during the first two quarters of this new fiscal year.

 

The employment-based third preference (EB-3) category continues to be significantly backlogged for worldwide applicants (October 22, 2006), India (October 15, 2002), China (February 8, 2006), and the Philippines (August 1, 2006).

 

The other employment-based immigration visa categories -- EB-1, EB-4 and EB-5 categories - Employment-Based First, Fourth and Fifth -- all remain current in October. We will keep you posted on the progression of visa numbers and continue to call on Congress to take action to "rightsize" immigrant visa numbers to the current needs of U.S. businesses.

Since the Deferred Action for Childhood Arrivals (DACA) program filings began on August 15, 2012, several issues, including questions about supporting documentation, confidentiality and false social security numbers have been raised by applicants and immigrant rights groups.  .

 

The most common concern relates to gathering of necessary supporting documentation to satisfy the qualifications for DACA eligibility. The government expressly stated on August 14, 2012 that affidavits will not be accepted. Difficulties are likely to arise for applicants who entered without inspection and must prove that they entered before June 15, 2012 and that they were under 16 years of age when they came to the United States. Similarly, there are concerns with relying on documentation from employers about work history to satisfy the physical presence requirements. However, employers may become reluctant to provide documentation if they suspect Immigration Customs Enforcement "ICE" may use that information to initiate worksite investigations for I-9 compliance. Another hurdle that applicants will likely face is finding creative ways to prove that they were present in the United States on or about June 15, 2012.

 

The issue that is likely to be the most worrisome for undocumented DACA applicants living in the United States is the confidentiality of the information they provide and future immigration enforcement.   Confidentiality remains a concern despite assurances by USCIS that personal and biographical information submitted by DACA applicants will not be used for immigration enforcement purposes, unless the information reveals fraud, criminal offense, or a threat to national security or public safety. Because unauthorized immigrants must not only announce their presence without status but also provide biographical information to the government when applying, USCIS assurances have done little to ease applicants' fears. Many potential DACA applicants also worry about how the information they provide could be used against family members who are not DACA eligible.  

 

Questions have also arisen regarding the risks associated with the request on the Application for an Employment Authorization Document ("EAD") --  Form I-765 -- where DACA applicants are asked to indicate "all previously used Social Security Numbers," especially where the applicants may have used a fraudulent number.Disclosing the use of a fraudulent social security card could lead to criminal charges and may amount to a crime involving moral turpitude, depending on the jurisdiction. Additionally, applicants who disclose the use of a fraudulent social security number may compromise their chances of eligibility for a more permanent benefit, like U.S. legal permanent residency. Even if a client does not disclose the use of a fraudulent social security number on Form I-765, this number may appear on the supporting documents they provide to USCIS to satisfy the DACA requirements.  

 

Only time will tell how USCIS will exercise its prosecutorial discretion in the context of DACA applicants and whether these fears are warranted.

The U.S. Embassy in India is implementing a new visa processing system that will make it easier for applicants to apply for visas.   Beginning on September 26, 2012, U.S. visa-issuing posts in India-the Embassy in New Delhi, and the consulates in Mumbai, Chennai, Kolkata, and Hyderabad-will now follow standardized procedures for online scheduling of visa appointments and payment of fees, as set forth in a new website.

 

The new system makes it possible, for the first time in India, for visa applicants to schedule appointments both online and by phone through call centers that can be accessed both in India and in the United States.   Under the new system, applicants will make two appointments:  first with one of the Offsite Facilitation Centers (OFC's), which are located in each of the cities where there is a U.S. visa issuing post, to submit their biometric fingerprints and photos, and thereafter at one of the visa issuing consular sections to be interviewed for their visas.   The new system will reduce congestion and processing delays at U.S. visa issuing posts by reducing the number of administrative steps that must be taken at the consular section in connection with the visa interview.  Although the Embassy hopes to make it possible for future applicants to make both their OFC and visa appointments on the same day, for now, most visa appointments, and all first-time visa applicants, will need to make two appointments on two different days.

 

In March 2012, the U.S. Embassy in India introduced the "Interview Waiver Program" (IWP), which allows visa applicants who meet certain criteria to be considered for waiver of the personal visa interview requirement.  Together with the new online appointment and fee payment system, the IWP will make it possible for increasing numbers of qualified Indian visa applicants to receive and renew visas without having to visit a consular section to be interviewed by a consular officer.

 

Details of these new procedures can be found on the U.S. Embassy's website at www.newdelhi.usembassy.gov  

Please join us along with our co-sponsor, Catholic Charities, for our final 2012 Immigration Community Forum on "Applying for Benefits and Troubleshooting Complex DACA Cases."  The forum will be held on Tuesday, October 23rd from 9 am until 11 am. The expert panel will cover the full lifecycle of representing applicants for DACA benefits, including the following: best practices in completing and submitting DACA applications to USCIS; assessing criminal convictions to determine eligibility; timing concerns for individuals in removal proceedings; and, evidence for proving physical presence and continuous residence. The discussion will be led by a panel of experts, including: Peggy Gleason, USCIS Ombudsman Office (invited); Heidi Boas, Catholic Charities; and Anna Gallagher, Shareholder, Maggio + Kattar. RSVP by email to:  events@maggio-kattar.com.

Maggio + Kattar and Identity co-sponsored a program, "What you Need to Know and How to Apply under President Obama's "Deferred Action Policy." M+K Managing Shareholder  Jim Alexander led a discussion on who qualifies for Deferred Action, how to apply, and what to avoid, and he answered audience questions at a high school forum in Gaithersburg, MD on August 24th.

 

Anna Gallagher will speak on a panel of experts on VAWA Self Petitions and U Visas on Thursday, September 13th at Crowell and Moring. Fellow panelists will include Peggy Gleason, Senior Advisor USCIS Ombudsman office; Jennifer Guilfoyle and Debbie Smith, Catholic Legal Immigration Network; and Debi Sanders, Catholic Charities Legal Services. The training will focus on how to prepare and file VAWA and U visa petitions.

 

Jim Alexander and Theresa Nahajzer, Director of Compliance, along with our partners at INS Zoom will be presenting a webinar on Employer Compliance, focused on E-Verify. The webinar entitled "E-Verify - Is It Really As Easy as 1-2-3?" will be held from 2:00 to 3:00 p.m. on Thursday, September 18th. To register or learn more, click here.

 

Monique Van Stiphout and Alix Mattingly will present at the District of Columbia Bar Association's Continuing Legal Education course on I-9 Compliance: A Practical Approach to the new I-9 Form and Ensuring Your Clients/Business are Ready for an ICE I-9 Audit on Tuesday, October 3rd. To register or to learn more, click here.     

 

Stephen Pattison will lead the American Immigration Lawyers Association's Rome District Chapter Conference tour of the consular section of the U.S. Embassy in London on October 3rd .

 

Anna Gallagher will participate on a panel at American Immigration Lawyers Association's Rome District Chapter Conference on October 4th on Deportations and Removal during the conference.

 

Mark Yelich will be speaking on a panel at the American Immigration Lawyers Association's 2012 Fall Fundamentals Conference in Washington, DC on October 11, 2012 entitled: Nonimmigrant Visa Workshop with the Experts: L-1.

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


Maggio + Kattar, P.C. | 11 Dupont Circle, N.W. Suite 775 | Washington, DC 20036
maggio-kattar.com | phone 202.483.0053 | fax 202.483.6801

Copyright © 2012 Maggio + Katter, P.C. | All rights reserved.