Open letter to Homeland Security

[WifeOHunkyJohn 2]

I agree with the lost tax argument. Very stupid. We throw away billions each year by not having a guest worker program, and by making things like online poker and certain drugs illegal (but I digress as my views are not very popular when it comes to that, I realize).

One suggestion however - why not have your wife take up work on a cash basis "under the table" - dogwalker, babysitting, tutoring....any of these can be done and pay quite well these days.

I did dog walking for a charity and it was great. No need to worry about being paid under the table cos it didn't pay, and every day I would come home completely in love with at least 3 dogs at a time.

There are tons of charities out there who would love help and volunteers, and if you have a favorite cause, that's what I would suggest while you twiddle your thumbs waiting for the USCIS to finish the paperwork.

Better than watching daytime tv... and I should know cos I tried it. *shudder*

[Caladan 19]

I am generally not interested in distinguishing much between legal and illegal as the status is often pretty fluid, and to be honest, every time some maroon comes up with an idea to ensure that illegals have to do XYZ all it means that my LEGAL husband gets six times the headache. I do think it would be helpful for people to understand what the legal process is like, though, so they don't make idiot suggestions like 'round 'em all up' or 'why would you worry, isn't he automatically a citizen?'

[igomo 0]

According to my lawyer it is a right. He says that under the law the spouse of a USC has the right to become a legal resident. Immigration is there to make sure there's no fraud to gain the right. One could argue it's a privilege as it's something you have to pay for though.

I love these threads where someone insists the government should be 'accountable' to us when it comes to immigration.

It was never lost on me that I was asking my government for the PRIVILEGE to bring a foreign-born person into this country to live. A privilege - not a right. Granted, I had paid a fee and I was entitled to some level of customer service, but it was also not lost on me that the answer to my petitions did not necessarily have to be the answer I wanted. The fees are generated to push the papers to grant the privilege.

Yes the system is broken. Yes it should be better. But the government is hardly 'accountable' to you.

[WifeOHunkyJohn 2]

This may be grounds for a new thread, but I just want to share with everyone: A few weeks ago, I wrote a few looong emails to MSNBC.com and the editors of Newsweek magazine (one of my faves) requesting that they do a feature on immigration - with an emphasis on legal immigrants.

If anyone is interested, message me and I'll send you a copy of the letter. Maybe if we get more people bugging them, they'll respond? It would be nice to have the plight of legal immigrants highlighted, for what its worth.

It's just such a shame that so much focus is put on illegal immigration. And I say that as the wife of a Mexican who entered on K1.

I'd be interested to know what they had to say in response to your wife's letters. I am surprised that no-one in the mass-media has really focussed on the plight of us legals. In fact I have been thinking recently of writing to Glenn Beck (CNN) to make him aware of the plight us legals find ourselves in.

This was my first decent response...

Date: Tue, 12 Dec 2006 13:31:01 -0800

Dear (me),

I'm a reporter at the Union-Tribune and would like to talk with you about your e-mail regarding the FBI name check.

Can you call me at 619-293-1280?

Thanks,

Onell Soto

Staff Writer

It ended like this...

Subject: RE: FBI namecheck

Date: Mon, 29 Jan 2007 11:18:17 -0800

From: onell.soto@uniontrib.com

To: (me)

(me)

I'm sorry, I've been inundated with other stories and have not been able to explore the situation with regard to the FBI namecheck, other than to talk with some immigration lawyers and confirm it is, indeed, a problem.

I wish I could devote more time to it, but I don't see it happening in the next few weeks. But check back, I think it's something we might be able to deal with at some point.

I'm sorry I don't have better news, or more time.

Cordially,

Onell Soto

Staff Writer

Others just said they would forward the emails onto the relevant departments, who were not polite enough to follow up. But I still persist cos I'm stubborn

Annie

[MonicaMexico 0]

'why would you worry, isn't he automatically a citizen?'

That last one is what makes me cringe - a lot of people assume that once you marry it's automatic - no paperwork, no fees, no waiting. HA!

[igomo 0]

Sure. Fee increases, more bureaucracy, all that is put in place to discourage legal immigration. It is somewhat of a deliberate force to ensure that the supply of cheap labor remains available.

I am generally not interested in distinguishing much between legal and illegal as the status is often pretty fluid, and to be honest, every time some maroon comes up with an idea to ensure that illegals have to do XYZ all it means that my LEGAL husband gets six times the headache. I do think it would be helpful for people to understand what the legal process is like, though, so they don't make idiot suggestions like 'round 'em all up' or 'why would you worry, isn't he automatically a citizen?'

[WifeOHunkyJohn 2]

Note - he doesn't reply to my "follow up" emails, even though I continue to try.

[Chris Parker 10]

I thought that they forgave illegal work done by spouses of USCs.

They do, but it's still illegal and VJ does not condone illegal activity. My husband worked illegally and it was forgiven, but I fail to see why you'd bother going through the visa process just to come here just to break the law. There are options other than work until you get the EAD.

"It is not a crime to work with employment authorization. It is just a civil violation."

So, to say that it is illegal to work without authorization is not technically correct. It is illegal to use false or fraudulent documents or misrepresent status in completing Form I-9 for an employer, but it not illegal to actually work. The only consequences of working without employment authorization, from the employee's perspective, are charges of deportation for violating status and/or other possible sanctions for immigration violations. In any case, since an application for adjustment of status is pending, and spouses of USC may apply for this benefit even if they have worked without authorization, there is nothing considered wrong about working without an EAD so long as you do not have to complete a Form I-9 for the employer.

Furthermore, while adjustment applicants are only entitled to apply for employment authorization under 8 CFR 274a.12( c)(9) (in other words, not authorized to work until the EAD is approved by USCIS discretion), K3's entitled incident to their admission in K3 status under 8 CFR 274a.12(a)(9). So for a K3, they are authorized to work upon admission, but only lack proper evidence of that employment authorization. In fact, a K3 should be able to get a SSN card by merely showing their I-94 with K3 status to SSA the same way a K1 can, however for some reason SSA has chosen not to accept proof of K2, K3, or K4 status alone as evidence of employment authorization like they do for K1's (see https://secure.ssa.gov/apps10/poms.nsf/lnx/0100203600). I recall the reason for this given in the LIFE regulations is that the K3 status also legally terminates 30 days after an adjustment or immigrant visa application is denied, so the status could be expired even though the I-94 says it is unexpired. However, SSA also verifies I-94 status now before issuing an SSN (and EAD's for that matter can also be revoked), so that rule could be argued to be outdated. Consequently, even without the EAD, a K1/K2/K3/K4 is tehnically authorized to work under the regulations upon admission to that status, even though SSA won't issue SSN's to K2/K3/K4's without seeing an EAD and employer's cannot accept an I-94 from a K1/K2/K3/K4 without also containing an employment authorization stamp.

So, the OP could have legitimate grounds to complain to SSA about refusing to issue an SSN to a K3 without an EAD, and maybe even to USCIS for Form I-9's design disallowing certain authorized workers from actually working, and might even be able to successfully sue both of them for damages (which I wouldn't actually do until he has adjustment of status approved, because that decision is discretionary on USCIS), but as to the rest of his complaints, they have no grounds as I see it.

[Chris Parker 10]

According to my lawyer it is a right. He says that under the law the spouse of a USC has the right to become a legal resident. Immigration is there to make sure there's no fraud to gain the right. One could argue it's a privilege as it's something you have to pay for though.

Only when applying for an immigrant visa. The USC's I-130 and I-129F petition is an entitlement, as is the immigrant visa and the application for admission upon arrival.

Nonimmigrant visas like K3 and adjustment of status are discretionary. There is no right under those cricumstances

[Chris Parker 10]

According to my lawyer it is a right. He says that under the law the spouse of a USC has the right to become a legal resident. Immigration is there to make sure there's no fraud to gain the right. One could argue it's a privilege as it's something you have to pay for though.

Only when applying for an immigrant visa. The USC's I-130 and I-129F petition is an entitlement, as is the immigrant visa and the application for admission upon arrival.

Nonimmigrant visas like K3 and adjustment of status are discretionary. There is no right under those cricumstances

I would further note that even where it is an entitlement, the eligibilility requirements are more than just merely being the spouse of USC for it to be considered a right...

1) Adam Walsh law also made certain USC's ineligible to petition for a spouse.

2) Immigrant visa applicant must not be a member of any inadmissible class, or a discretionary waiver, if available, may become necessary.

So, the lawyer's statement that the alien spouse of USC has a legal right to become a permanent resident seems very inaccurate and misleading to me, I wouldn't use him.

Edited September 13, 2007 by Chris Parker

[LaL 418]

I thought that they forgave illegal work done by spouses of USCs.

They do, but it's still illegal and VJ does not condone illegal activity. My husband worked illegally and it was forgiven, but I fail to see why you'd bother going through the visa process just to come here just to break the law. There are options other than work until you get the EAD.

"It is not a crime to work with employment authorization. It is just a civil violation."

So, to say that it is illegal to work without authorization is not technically correct. It is illegal to use false or fraudulent documents or misrepresent status in completing Form I-9 for an employer, but it not illegal to actually work. The only consequences of working without employment authorization, from the employee's perspective, are charges of deportation for violating status and/or other possible sanctions for immigration violations. In any case, since an application for adjustment of status is pending, and spouses of USC may apply for this benefit even if they have worked without authorization, there is nothing considered wrong about working without an EAD so long as you do not have to complete a Form I-9 for the employer.

Furthermore, while adjustment applicants are only entitled to apply for employment authorization under 8 CFR 274a.12( c)(9) (in other words, not authorized to work until the EAD is approved by USCIS discretion), K3's entitled incident to their admission in K3 status under 8 CFR 274a.12(a)(9). So for a K3, they are authorized to work upon admission, but only lack proper evidence of that employment authorization. In fact, a K3 should be able to get a SSN card by merely showing their I-94 with K3 status to SSA the same way a K1 can, however for some reason SSA has chosen not to accept proof of K2, K3, or K4 status alone as evidence of employment authorization like they do for K1's (see https://secure.ssa.gov/apps10/poms.nsf/lnx/0100203600). I recall the reason for this given in the LIFE regulations is that the K3 status also legally terminates 30 days after an adjustment or immigrant visa application is denied, so the status could be expired even though the I-94 says it is unexpired. However, SSA also verifies I-94 status now before issuing an SSN (and EAD's for that matter can also be revoked), so that rule could be argued to be outdated. Consequently, even without the EAD, a K1/K2/K3/K4 is tehnically authorized to work under the regulations upon admission to that status, even though SSA won't issue SSN's to K2/K3/K4's without seeing an EAD and employer's cannot accept an I-94 from a K1/K2/K3/K4 without also containing an employment authorization stamp.

So, the OP could have legitimate grounds to complain to SSA about refusing to issue an SSN to a K3 without an EAD, and maybe even to USCIS for Form I-9's design disallowing certain authorized workers from actually working, and might even be able to successfully sue both of them for damages (which I wouldn't actually do until he has adjustment of status approved, because that decision is discretionary on USCIS), but as to the rest of his complaints, they have no grounds as I see it.

...nm

[Chris Parker 10]

(see https://secure.ssa.gov/apps10/poms.nsf/lnx/0100203600)

...nm

Sorry, apparently that link was incomplete.

https://secure.ssa.gov/apps10/poms.nsf/lnx/...33;opendocument

[Caladan 19]

You'll note of course at the link that it says K-3 may be issued a card but NOT ALLOWED TO WORK. SSA doesn't govern whether an alien is permitted to work. That's USCIS's call.

Beyond that, you're correct that the problem with illegal work is usually illegal identification. But having a social security card doesn't mean you're entitled to work, or legally permitted to work absent DHS authorization. The I-9 is a condition of employment.

It just means that it's unlikely anyone is going to give a damn.

[athena_ny 1]

I thought that they forgave illegal work done by spouses of USCs.

They do, but it's still illegal and VJ does not condone illegal activity. My husband worked illegally and it was forgiven, but I fail to see why you'd bother going through the visa process just to come here just to break the law. There are options other than work until you get the EAD.

"It is not a crime to work with employment authorization. It is just a civil violation."

So, to say that it is illegal to work without authorization is not technically correct. It is illegal to use false or fraudulent documents or misrepresent status in completing Form I-9 for an employer, but it not illegal to actually work. The only consequences of working without employment authorization, from the employee's perspective, are charges of deportation for violating status and/or other possible sanctions for immigration violations. In any case, since an application for adjustment of status is pending, and spouses of USC may apply for this benefit even if they have worked without authorization, there is nothing considered wrong about working without an EAD so long as you do not have to complete a Form I-9 for the employer.

Furthermore, while adjustment applicants are only entitled to apply for employment authorization under 8 CFR 274a.12( c)(9) (in other words, not authorized to work until the EAD is approved by USCIS discretion), K3's entitled incident to their admission in K3 status under 8 CFR 274a.12(a)(9). So for a K3, they are authorized to work upon admission, but only lack proper evidence of that employment authorization. In fact, a K3 should be able to get a SSN card by merely showing their I-94 with K3 status to SSA the same way a K1 can, however for some reason SSA has chosen not to accept proof of K2, K3, or K4 status alone as evidence of employment authorization like they do for K1's (see https://secure.ssa.gov/apps10/poms.nsf/lnx/0100203600). I recall the reason for this given in the LIFE regulations is that the K3 status also legally terminates 30 days after an adjustment or immigrant visa application is denied, so the status could be expired even though the I-94 says it is unexpired. However, SSA also verifies I-94 status now before issuing an SSN (and EAD's for that matter can also be revoked), so that rule could be argued to be outdated. Consequently, even without the EAD, a K1/K2/K3/K4 is tehnically authorized to work under the regulations upon admission to that status, even though SSA won't issue SSN's to K2/K3/K4's without seeing an EAD and employer's cannot accept an I-94 from a K1/K2/K3/K4 without also containing an employment authorization stamp.

So, the OP could have legitimate grounds to complain to SSA about refusing to issue an SSN to a K3 without an EAD, and maybe even to USCIS for Form I-9's design disallowing certain authorized workers from actually working, and might even be able to successfully sue both of them for damages (which I wouldn't actually do until he has adjustment of status approved, because that decision is discretionary on USCIS), but as to the rest of his complaints, they have no grounds as I see it.

Yeah, I know all that.

There are just a lot of people quick to whine about all the EWIs and overstays who do things 'ILLEGALLY!!!!111' then turn around and then want to work without an EAD or find ways around it that aren't really ways around it (if you know what I mean). I mention my husband's working without auth but was chastised for 'flaunting' it once - so I'm going to the first to say it's not condoned, at this point.

I'll stop myself there, to stop this from turning into an illegal v. legal debate, because there is a lot more I could say and get myself in trouble

[athena_ny 1]

You'll note of course at the link that it says K-3 may be issued a card but NOT ALLOWED TO WORK. SSA doesn't govern whether an alien is permitted to work. That's USCIS's call.

Beyond that, you're correct that the problem with illegal work is usually illegal identification. But having a social security card doesn't mean you're entitled to work, or legally permitted to work absent DHS authorization. The I-9 is a condition of employment.

It just means that it's unlikely anyone is going to give a damn.

Again, trying to stay away from the illegal immigration debate and while there are people from certain circumstances who will stop at nothing to secure employment, and illegal identification aka false ID is a major problem pertaining to unauth'd work, many employers make it easy to get employment without any of the documents generally needed. My husband's employer never had him fill out an I-9, never asked to see his SS card, or anything - he wrote down his ITIN and they didn't blink twice (to anyone who's done a basic google search, an ITIN will always start w/ a 9 so it's obviously when it is not an SSN).