10 COMMON WAYS that Lawyers Harm Their Non-Citizen Clients By ARI SAUER
N
o matter what area of law you practice, your clients come in all colors, shapes, and sizes. For most lawyers, your clients will also come with varying immigration statuses. Immigration status falls into several categories. The most important legal distinction is that of U.S. citizens versus non-citizens (which I will refer to as foreign nationals). All foreign nationals are subject to the laws and regulations found in the Immigration and Nationality Act (INA) and Title 8 of the Code of Federal Regulations. The INA refers to non-citizen foreign nationals as aliens. Foreign nationals usually fall within four categories: 1) Permanent Residents, commonly known as green card holders; 2) Refugees and Asylees; 3) Nonimmigrants, who hold temporary immigration status (examples of common nonimmigrant statuses include: B-1/B2 visitors; F-1 students; J-1 exchange visitors; E-2 investors; and H-1B specialty occupation workers); and 4) Individuals who are in the U.S. without status, either because they entered the U.S. without status or they violated a condition of their status. Each immigration status has its own eligibility requirements, rights and benefits, and obligations for maintaining status. The following is some common ways that lawyers fail to take into account the complexities of U.S. immigration law and their foreign national clients’ rights and obligations. 1. N ot asking your client if they are a U.S. citizen: In order to know whether any of the other items apply to your client, you first need to know whether your client is a U.S. citizen or not. Asking your client where they were born and their immigration status is a simple and helpful addition to your standard initial consultation process. Unfortunately, few lawyers ask these important questions. Immigration status can be relevant to a whole 14
host of areas of law, including, but not limited to: criminal law, family law, employment law, corporate law, and tax law. You can’t tell someone’s immigration status by how they look, how well they speak English, or the fact that they have U.S. citizen family members. Many foreign nationals speak English fluently and are completely assimilated as Americans. Therefore it’s recommended that you ask all of your clients whether they are a U.S. citizen and, if not, what their immigration status is. 2. M aking assumptions about what your foreign national clients can and cannot do in the U.S.: There are a lot of misconceptions about the U.S. immigration laws and foreign nationals that even lawyers believe. For example, if your client is in the U.S. without status, that doesn't necessarily mean they are deportable. There are a number of ways that an individual without status might be eligible for an immigration benefit or relief from deportation that provides them with status or allows them to remain in the U.S. in an authorized period of stay. Also, being married to a U.S. citizen, or having U.S. citizen children, doesn’t necessarily make a foreign national eligible to remain in the U.S. All foreign nationals have certain rights and responsibilities which differ depending on their particular immigration status. For example, foreign nationals are generally allowed to invest in and own a business in the U.S., but that doesn’t necessarily mean they are allowed to run the business while in the U.S. Whether or not a foreign national is authorized to work in the U.S. will depend on their immigration status. While some foreign nationals are’nt allowed to work in the U.S., others are required to work in a particular occupation, for a particular employer, or they will lose their immigration status. Also, foreign nationals are generally allowed to