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Knowing Your Rights as an Immigrant in the U.S.

July 30, 2013
Minsky, McCormick & Hallagan

Do you feel that an employer didn’t hire you because of your immigration status? Who can you turn to in order to address such discrimination? What should you do if you are stopped by immigration officials and asked about your immigration status? What are your rights if you are sent to immigration court?

All kinds of immigrants in the U.S. may at one time or another face these or many more questions. The following is a very general overview of your rights as an immigrant, specifically relating to your status as a non-citizen in the U.S. If you have any specific questions or concerns, please contact one of our immigration attorneys at Minsky, McCormick and Hallagan, P.C.

Your rights when applying for or starting new employment:  U.S. federal law requires that all employers ensure that their employees are lawfully authorized to work in the U.S. In order to prove employment authorization, an individual must provide certain original documents and fill out Form I-9. The federal government publishes a list of acceptable documents. (Click here to review Form I-9 and the list of acceptable documents). The following is a list of your rights relating to Form I-9:

  • Employers cannot ask you your immigration status, but employers may ask you if you will be able to establish lawful authorization work by the date you start working for the employer.
  • Employers cannot ask or require you to provide specific documents; this is known as an unfair documentary practice (which is prohibited by law). They must accept any document or combination of documents that is listed on the Form I-9.
  • If the documents you present to your employer reasonably appear to be originals and pertain to you, the employer must accept them.
  • You are only required to be lawfully authorized to work on the day you begin your employment; an employer cannot require you to prove lawful work authorization prior to your start date or for a certain period of time after your start date.
  • U.S. citizens and lawful permanent residents cannot be required to re-verify their work authorization; however, employers must re-verify the work authorization for any immigrant whose authorization expires, such as those with Employment Authorization Documents.

Some employers participate in E-Verify, an electronic system which verifies employment authorization and ensures that the Social Security number and documents provided by an employee in fact belong to that employee. E-Verify employers must publicize their use of E-Verify.

Federal law prohibits discrimination based on national origin, citizenship or immigration status, unfair documentary practices during hiring, or retaliation. (Click here for more information). If you feel that you have been subject to one of these forms of discrimination, you can call the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices at (800) 255-7688.

If you are stopped by the police, U.S. Immigration and Customs Enforcement (ICE), or the Federal Bureau of Investigation:  and you are asked about your immigration status, you have the right to remain silent and not answer questions about your immigration status. (Certain exceptions apply if you are at an international border or airport, and for certain individuals on some nonimmigrant visas). If you wish to remain silent, tell the officer that you are exercising your right to remain silent. It is important to never lie about your immigration status or provide false information or documents to any law enforcement official; to do so is against the law and carries consequences.

If immigration agents come to your house:  you do not have to let them in unless they have certain kinds of warrants. You can ask to see the warrant before opening the door; agents can slip the warrant under the door or hold it up to a window so that you can see it. If the immigration agents have a warrant of removal or deportation, the person listed in the warrant should step outside the house to speak with the immigration agent. (Click here to read more about warrants and your rights if you are stopped by the police, immigration agents, or the FBI).

If you are in immigration proceedings (you have been told to appear before the immigration court):  you have a right to have a lawyer. However, the government does not have to pay for your lawyer. Note that this is different than in criminal cases. You must either pay for your own private lawyer or obtain a lawyer through a non-profit organization. Whether or not you have a lawyer, you must appear at all of your court dates, or you may be ordered removed in your absence.

If you are detained in immigration detention by U.S. Immigration and Customs Enforcement (ICE):  generally, you have a right to see an immigration judge who will make a decision about whether you can stay in the U.S. (meaning that you qualify for and show that you deserve some form of immigration relief) or whether you will be ordered removed (i.e. deported). If this is the case, you will be issued a Notice to Appear. This is a charging document in which the government explains why it thinks you should be removed from the U.S.

However, not all immigrants are able to see an immigration judge. You might not be issued a Notice to Appear for the following reasons: a) you were arrested by the Department of Homeland Security (DHS) at a border checkpoint, near the border, or at an international airport; b) you illegally reentered the U.S. after having been previously deported or removed; c) you have been convicted of an aggravated felony and do not have any legal status in the U.S. A different procedure will apply to you if one of these things is the case.

Note that U.S. citizens cannot be placed in removal proceedings and cannot be detained by ICE. U.S. citizenship law is very complicated and you may be a U.S. citizen without knowing it; if you think you may be a U.S. citizen, you should consult with an immigration lawyer at Minsky, McCormick & Hallagan, P.C.

If you fear return to your home country because you face persecution or severe harm based on certain protected characteristics:  you may be eligible for asylum, withholding of removal, or withholding of removal under the United Nations Convention Against Torture. Asylum and withholding of removal have very complicated legal requirements and procedures, but at their essence, they protect an individual from removal or return to their home country where that individual fears persecution by the government or people that the government is unable to control based upon that individual’s race, religion, nationality, political opinion, or membership in a particular social group. The UN Convention Against Torture protects individuals who can show that it is more likely than not that the government in their home country will subject them to torture.

Individuals may apply for this relief affirmatively before U.S. Citizenship and Immigration Services, if they are in removal proceedings before an immigration judge, or if they are being subject to removal from the U.S. Everyone who has such a fear and expresses their fear to immigration officials has a right to either a credible fear or a reasonable fear interview. At this interview, the immigration official will determine whether or not the case will be heard by an immigration judge. However, these protections will only apply to individuals who express their fear, so if you fear return to your home country, you must be prepared to tell an immigration official and explain your fear.

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