Know your rights if ICE visits your home

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If you are undocumented and immigration (ICE) agents knock on your door, know that you have rights. Please find the full information in this document that you can download and print.  

Timothy R. Bakken
Lawyer

Ineffective in most areas, Trump has succeeded in attacking immigrants in his first 100 days.

BAKKEN LAW: Trump has been one of the least effective presidents early in his first term when it comes to tangible legislative and policy results.  However, he has been extremely effective at creating a climate of fear and anxiety in immigrant communities as well as in businesses and industries that rely on immigrants. Read this CNN article about Trump's first 100 days here.  

Time will tell if this anti-immigrant tone and approach will translate to comprehensive changes in the law.  At the very least, it seems likely that the United States under Trump will be less welcoming to, and provide less opportunities for, immigrants whether they seek to enter the U.S. to protect their lives, to support their families, or to contribute positively in all the ways immigrants have for centuries.

Timothy R. Bakken
Founder
 

Trump’s aggressive deportation actions are ripping apart families.

Despite Trump’s assertions that he is focusing on deporting immigrants with serious criminal convictions and those who pose risks to national security, the reality is starkly different.  As this article in The Guardian describes, Trump’s immigration policies are being enforced by ICE agents who are arresting, and placing in removal proceedings, people with very minor, or no, criminal records.  

A recent poll shows that a large majority of Americans favor immigration rules that do not punish those who have been in the U.S. illegally if they have been working, paying taxes, and have not been convicted of serious crimes. 

Clearly, the Trump administration’s immigration proposals and its current actions related to deportation policy are out-of-step with the views of most Americans.

Timothy R. Bakken

A reminder of the reality of H-1B visas.

Contrary to some reports, the H-1B visa program does not punish U.S. workers or unfairly benefit foreign workers.  My clients include companies with employees holding H-1B visas alongside a far-majority of those companies’ workforces who are U.S. citizens.  U.S. companies using the H-1B visa program properly do so by hiring highly educated, highly skilled, and very well-paid H-1B employees who fill very specific needs for the companies and their customers.  

As explained in this letter to the editor in the Washington Post, we should not punish innovative and successful U.S. companies who are committed to following our immigration laws simply because an extremely small number of businesses use the H-1B program improperly. 

Read the full Washington Post article "The H-1B visa program is not 'much abused'" here.  

Timothy R. Bakken

U.S. Citizen Children Impacted by Immigration Enforcement

BY AMERICAN IMMIGRATION COUNCIL, 28. MARCH 2017: In the United States today, more than eight million citizens live with at least one family member, often a parent, who is undocumented. Children make up the majority of these U.S. citizens; almost six million citizen children under the age of 18 live with a parent or family member who is undocumented. Consequently, immigration enforcement actions—and the ongoing threats associated with them—have significant physical, emotional, developmental, and economic repercussions not only for the deported individuals, but for the many children who stay behind. Deportations of parents and family members have serious consequences that affect children and extend to communities and the country as a whole.

This fact sheet provides an overview of the U.S. citizen children who could be impacted by immigration enforcement actions, the challenges and risk factors that these children face, and the existing mechanisms designed to protect children if a parent is detained or deported.

Millions of U.S. citizen children have undocumented parents and family members.

• 4.1 million U.S. citizen children under the age of 18 live with at least one undocumented parent, according to estimates of 2009-2013 census data.
• 5.9 million U.S. citizen children under the age of 18 live with an undocumented family member, according to estimates of 2010-2014 census data.
• Roughly half a million U.S. citizen children experienced the apprehension, detention, and deportation of at least one parent between 2011 and 2013, based on estimates using Immigration and Customs Enforcement (ICE) data.

Immigration enforcement—and the threat of such actions—can negatively impact a child’s long-term health and development.

• A child’s risk of having mental health problems like depression, anxiety, and severe psychological distress increases following the detention and/or deportation of a parent. Since late 2016, doctors and service providers have reported anecdotally that they have seen more children exhibiting stress- and anxiety-related behavioral changes, including symptoms of “toxic-stress,” due to fear that a family member will be deported.
• A study of Latino citizen children from 2013-2015 found that post-traumatic stress disorder (PTSD) symptoms were significantly higher for children who had at least one detained or deported parent.
• A 2010 study of immigration-related parental arrests (at home or worksites) found that the majority of children experienced at least four adverse behavioral changes in the six months following a raid or arrest. Compared to the previous six months, children cried or were afraid more often; changed their eating or sleeping habits; and/or were more anxious, withdrawn, clingy, angry, or aggressive.
• Even before birth, immigration enforcement can put a child’s health at risk. The 2008 worksite raid in Postville, Iowa—the largest single-site immigration raid in U.S. history—was tied to premature and underweight births, complications that put babies at risk for infant death or long-term health problems. Researchers found that babies born to Latina mothers in Iowa within 37 weeks of the raid were 24 percent more likely to be underweight compared to the previous year. This increased risk was not evident in babies born to non-Latina white mothers in Iowa.

The detention or deportation of a parent puts children at risk of economic instability.

The deportation, and even the arrest or detention, of a parent or other household family member has significant short- and long-term financial implications. U.S. citizen children and any remaining family members can face substantial economic disadvantages following the removal of a primary provider.

• An analysis of 2014 median family income estimated that a family’s income would decrease 50 percent following the deportation of a family member.
• A study of immigration enforcement in six U.S. locations between 2006 and 2009 found that families lost 40 to 90 percent of their income, or an average of 70 percent, within six months of a parent’s immigration-related arrest, detention, or deportation.
• The ability to afford housing may become more tenuous following the deportation of a provider, resulting in the loss of a family’s home and more frequent relocations.
• A 2016 study of immigration enforcement and housing foreclosures found that “deportations exacerbate rates of foreclosure among Latinos by removing income earners from owner-occupied households.” Furthermore, the research revealed that counties with 287(g) agreements, which authorize immigration enforcement collaboration between local police and ICE, had substantially higher foreclosure rates among Latinos.

U.S. citizen children may end up in the child welfare system following the detention or deportation of their parent.

Parents—regardless of immigration status, detention, or deportation—have a constitutional right to custody of their children (unless deemed unfit). While both the immigration and child welfare systems generally recognize that it is in a child’s best interest to remain with a parent or family member, the complexity and lack of coordination between agencies can lead to prolonged family separation and even termination of parental rights.

• If a parent is unable to arrange childcare or custody prior to detention or deportation, the child may be taken by the state’s Child Protective Services (CPS) for placement and case management. The child is usually placed in an emergency shelter; group home; or with a relative, friend, or stranger in a foster home while custody is determined in family court.
• An estimated 5,000 U.S. citizen children in foster care had a detained or deported parent in 2011, according to a national study.
• Children in foster care in counties with 287(g) agreements were 29 percent more likely to have detained or deported parents compared to non-287(g) counties studied in 2011.

There are limited mechanisms to safeguard parental rights, which are incredibly difficult for parents to regain following detention or deportation.

All parents have the right to receive a notification of custody proceedings affecting their children, attend such proceedings, and receive copies of related court documents. Yet there are few enforceable, permanent policies in place to protect these rights.

• Federal law mandates that parental rights be terminated if a child has been out of a parent’s custody for 15 of the past 22 months. Policies and procedures vary by state, but in order to maintain or regain parental rights, CPS generally implements a reunification plan that requires a parent to have regular contact with the child and participate in family court hearings. Detained or deported parents have historically faced significant barriers to these requirements.
• Parents may request release from detention in order to care for their children while they are in immigration proceedings; however, ICE does not guarantee that it will exercise discretion in such cases.
• In 2013, ICE issued its Parental Interests Directive to prevent and mitigate the impact of immigration enforcement on parental rights. Broadly, the guidance aims to better facilitate parent-child visitation; parental participation in custody proceedings; and ensure the role of a parent is recognized in case reviews and initial detention, transfer, or prosecutorial discretion decisions.
• In 2015, the Children’s Bureau within the Department of Health and Human Services (HHS) issued an information memo encouraging child welfare agencies and case workers to review ICE’s directive and work with ICE to ensure family services “focus on safety, permanency and well-being” regardless of immigration status. 

Despite these directives, significant issues persist. Since ICE is not required to inform CPS of a parent’s whereabouts, CPS may still have difficulty locating and properly notifying a detained parent; family courts and caseworkers may not understand why a parent is detained and unable to participate in proceedings; and ICE officials may underestimate the impact that enforcement has on U.S. citizen children who are likely to be left behind.

Parents with a final deportation order must make the difficult decision of whether or not to bring their children—including U.S. citizen children—with them.

ICE issued more than 200,000 deportations for parents with citizen children between 2010 and 2012, according to the most recent government data available. While the government does not track whether U.S. citizen children stay in the United States or leave with a deported parent, both scenarios occur and pose challenges.  

• If parental rights remain intact, parents facing a pending deportation may make custody arrangements for their children to stay in the United States. Under the Parental Interests Directive, ICE is supposed to ensure “appropriate efforts, where practicable,” are taken to allow a detained parent to make guardianship or travel arrangements for the child prior to deportation.
• If a child’s custody is still being determined after a parent has been deported, the ability of the parent to regain custody or participate in proceedings—even if the court requires the parent’s attendance—is extremely limited. ICE, for example, may consider facilitating the travel of a deported parent back to the United States only if the proceedings are to terminate parental rights.
• Deported parents have the right to reunite with their children outside of the United States as long as the reunification plan is ongoing, but this requires significant coordination between family members, the parent country’s consulate, and U.S. state and federal agencies. It can be difficult for deported parents to prove that they can provide for their children in a stable and safe environment in the country of deportation, based on many of the same conditions that may have triggered the parent’s migration to the United States in the first place.

Download the Fact Sheet here.

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

BY USCIS, 3. APRIL 2017: U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

• Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system. 

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

Further information

For more information about the new H-1B visa fraud and abuse detection initiative, visit the Combating Fraud and Abuse in the H-1B Visa Program web page.

For information about H-1B petition requirements, visit the USCIS H-1B webpage.