Homeland Security Shifts Focus to Employers
March 31, 2009 by Thomas Esparza
Filed under Features
A new policy will aim enforcement efforts at those who hire illegal workers. But immigration raids will continue, sources say.
By Josh Meyer and Anna Gorman, L.A. times
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Reporting from Los Angeles and Washington — Stepping into the political minefield of immigration reform, Homeland Security Secretary Janet Napolitano soon will direct federal agents to focus more on arresting and prosecuting American employers than the illegal laborers who sneak into the country to work for them, department officials said Monday.
The shift in emphasis will be outlined in revamped field guidelines issued to agents of Homeland Security’s Immigration and Customs Enforcement, or ICE, as early as this week, several officials familiar with the change said.
The policy is in line with comments that President Obama made during last year’s campaign, when he said enforcement efforts had failed because they focused on illegal immigrants rather than on the companies that hired them.
Ready or Not move “There is a supply side and a demand side,” one Homeland Security official said. “Like other law enforcement philosophies, there is a belief that by focusing more on the demand side, you cut off the supply.”
Another department official said the changes were the result of a broad review of all immigration and border security programs and policies that Napolitano began in her first days in office.
“She is focused on using our limited resources to the greatest effect, targeting criminal aliens and employers that flout our laws and deliberately cultivate an illegal workforce,” the official said.
A Simple Plan movie full Homeland Security officials emphasized that the department would not stop conducting sweeps of businesses while more structural changes to U.S. immigration law and policy were being contemplated.
Agents, however, will be held to a higher standard of probable cause for conducting raids, the officials said, out of concern that at least one recent raid in Washington state and another planned sweep in Chicago were based on speculative information that illegal workers were employed.
The officials spoke on the condition of anonymity because they were not authorized to discuss the coming policy changes.
The new guidelines would mark a fundamental shift away from what was happening at the end of the Bush administration, said Doris Meissner, who served as commissioner of ICE’s predecessor — the Immigration and Naturalization Service — under President Clinton.
The law governing employer enforcement requires proof that a business knowingly hired illegal workers. So without an effective way for employers to verify workers’ status, Meissner said, “It is very easy for that ‘knowingly’ to be a big loophole.”
Meissner, a senior fellow at the Migration Policy Institute think tank in Washington, said the Bush administration also vowed to go after employers but rarely did so. In later years, it drew criticism by conducting large-scale raids at businesses across the country aimed almost entirely at workers.
The Clinton administration, in contrast, used a combination of laws to go after employers for smuggling, violating labor laws and engaging in criminal conspiracy, she said. “At the end of the day, when you make cases like that, you have more impact.”
Advocates on both sides of the issue have been awaiting major changes in immigration policy since Obama’s election — particularly since he tapped Napolitano, a former border state governor and prosecutor, to head the Homeland Security Department.
Conservatives have warned that any easing of enforcement efforts will result in more arrivals of illegal workers, who will compete for jobs held by Americans.
Atlantis: The Lost Empire divx And immigrant rights groups have complained that the lack of reform measures to date under Obama suggested the White House was backing down from campaign pledges to curb workplace enforcement efforts.
buy Dead End Those concerns ratcheted up dramatically when ICE agents swept into a manufacturing plant in Bellingham, Wash., in February and arrested dozens of people on suspicion that they were in the country illegally.
Napolitano suggested to Congress that she was unhappy with the raid and that she would “get to the bottom of this.” But, she added: “In my view, we have to do workplace enforcement. It needs to be focused on employers who intentionally and knowingly exploit the illegal labor market.”
Homeland Security officials confirmed that a planned raid in the Chicago area was delayed in recent weeks because senior administrators expected “a higher level of scrutiny to be applied,” one official said. “Politics has nothing to do with it. It is all about the quality of the investigative work and the effectiveness of targeting the employers.”
Michael W. Cutler, a retired senior special INS agent, said the Obama administration needed to go after workers and employers to send a message that it would not condone illegal immigration.
“Who is more responsible for prostitution, the hookers or the johns? It is a shared responsibility,” said Cutler, a fellow at the Center for Immigration Studies, a group opposed to illegal immigration.
He said it would be “dumb” to “go after employers and not the illegal aliens. That means they are going to make very few arrests. And the message that sends is that if you can make it across the border, you’re home free. No one is going to be looking for you.”
Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles, said the Obama administration also needed to target employers who did not pay minimum wage and who exposed workers to unsafe conditions. But she said she hoped the new guidelines would mark a good first step by halting mass raids.
“What happened during the Bush administration is unconscionable,” she said. “At the end of the day, it really targeted a group of vulnerable workers who just were trying to bring the food to the table.”
CGFNS for Physical Therapists
March 31, 2009 by Thomas Esparza
Filed under Employers
CGFNS International (hereafter “CGFNS”) has been asked for its views on the educational requirements for applicants for a CGFNS VisaScreen certificate as a Phyiscal Therapist (hereafter “PT”)
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Interim Decision #3637 Matter of Juan Carlos ZORILLA-VIDAL, Respondent
March 30, 2009 by Thomas Esparza
Filed under Attorneys
Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
768
Matter of Juan Carlos ZORILLA-VIDAL, Respondent
File A045 240 272 – Miami, Florida
Decided March 20, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a
conviction for criminal solicitation under a State’s general purpose solicitation statute is a
conviction for a violation of a law “relating to a controlled substance” under section
237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006),
where the record of conviction reflects that the crime solicited is an offense relating to a
controlled substance.
Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed.
Coronado-Durazo v. INS
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FOR RESPONDENT: Sandra Echevarria, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathy Giraitis, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated July 3, 2007, an Immigration Judge terminated removal
proceedings against the respondent. The Department of Homeland Security
(“DHS”) has appealed from that decision. The respondent opposes the appeal
and urges that we affirm the Immigration Judge’s decision. The appeal will
be sustained, the proceedings will be reinstated, and the record will be
remanded to the Immigration Judge for further proceedings.
The respondent, a native and citizen of Colombia, was convicted on
February 26, 2003, of criminal solicitation in violation of section 777.04(2) of
the Florida Statutes, based on his plea of no contest to a charge that he solicited
the delivery of cocaine, an offense in violation of section 893.13(1)(a)(1) of the
Florida Statutes. Under Florida law, the elements of criminal solicitation are
(1) commanding, hiring, requesting, or encouraging another person to commit
a crime and (2) the intent that the other person commit the crime.
Bar v. Marable
Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
1
Circuit’s in
Dolt, see United States v. Liranzo
decision to be distinguishable, both because the Sentencing Guidelines do not employ the
“relating to” phrase and because the Board was entitled to deference in this context.
v. Gonzales
2
In Coronado-Durazo v. INS, supra
statute precluded the construction placed upon it by
Matter of Beltran.
769
Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects
that the crime solicited is the delivery of cocaine. We answer this question
in the affirmative and hold that our own precedent decision in
Beltran
Matter of Beltran
237(a)(2)(B)(i) of the Act will be sustained and the Immigration Judge’s
decision to the contrary will be vacated.
We recognize that the Ninth Circuit has adopted precedent that
is directly at odds with our holding in
Matter of Beltran, supra. See, e.g.,
Coronado-Durazo v. INS
the Sixth Circuit has held that the Florida solicitation statute at issue here does
not define a “controlled substance offense” for purposes of the career offender
provision of the United States Sentencing Guidelines, even where the solicited
crime was trafficking in cocaine.
See United States v. Dolt
(6th Cir. 1994). Yet two other circuits—the Second and the Fifth—have
affirmatively upheld the rule of
Matter of Beltran
precedents.
Mizrahi v. Gonzales, 492 F.3d 156, 164-65 (2d Cir. 2007);1
v. Ashcroft
United States v. Dolt, supra
change in nationwide law as to whether a conviction for soliciting the delivery
of cocaine under Florida’s general purpose solicitation statute can constitute a
conviction for violating a law “relating to a controlled substance” within the
meaning of section 237(a)(2)(B)(i) of the Act. On the contrary, the fact that the
more recent Federal circuit court decisions are consistent with
Matter of Beltran
reinforces our continuing view that it was correctly decided and remains viable
outside the Ninth Circuit.
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Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
770
In conclusion, we reaffirm our precedent in
Matter of Beltran
that the respondent’s Florida conviction for soliciting the delivery of
cocaine is a conviction for an offense under State law relating to a controlled
substance that makes him removable from the United States under section
237(a)(2)(B)(i) of the Act. Accordingly, the DHS’s appeal will be sustained,
the removal proceedings will be reinstated, and the record will be remanded to
the Immigration Judge.
ORDER:
the decision of the Immigration Judge is vacated, and the removal proceedings
against the respondent are reinstated.
FURTHER ORDER:
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.
Ten Common Tax Return Errors Foreign Nationals Should Avoid
March 25, 2009 by Thomas Esparza
Filed under Families
by Paula N. Singer, Esq.
Many foreign nationals submit incorrect tax returns (or do not submit at all) because of lack of awareness of the different rules that can apply to foreign nationals’ returns. This is the case whether the returns are prepared by paid preparers or by the foreign nationals themselves. Because of the new IRS focus on international tax compliance and the new paid preparer penalties, foreign nationals and their tax return preparers should expect the IRS to scrutinize their returns. They should also expect the immigration service to review their returns more closely when they are requesting future immigration benefits.
Ten Common Mistakes to Avoid
The following are ten common tax return mistakes that foreign nationals need to avoid:
1. Filing the wrong tax return
Foreign nationals can be nonresident aliens (Form 1040NR or 1040NR-EZ), resident aliens (Form 1040 or 1040EZ), or dual-status taxpayers (Form 1040 with a Form 1040NR statement for those arriving, or Form 1040NR with a Form 1040 statement for those departing, who elect dual-status treatment.) Many foreign nationals, particularly foreign students and exchange visitors, who remain nonresident aliens for a period of years under the 183-day residency formula, and arriving foreign workers not in the United States a full calendar year, submit a Form 1040 claiming deductions such as the standard deduction, which are not available to nonresident aliens or dual-status taxpayers.
Currently e-filing is not available for Forms 1040NR, 1040NR-EZ, or dual-status tax returns. Those foreign nationals who use e-filing, therefore, frequently submit the wrong return.
2. Filing using married filing jointly status incorrectly
A nonresident married to a U.S. citizen or resident alien as of December 31st may elect to file as a resident jointly with his or her spouse. Residents include a spouse who made a first-year choice election to be a part-year resident. However, two married nonresident aliens may not make the election to file jointly as residents. They must file as nonresident aliens using married filing separately rates, which are the highest rates.
3.
Failing to include all income in the return
Foreign nationals who are resident aliens are subject to U.S. income tax on worldwide income in the same manner as U.S. citizens (though in limited circumstances they may still be entitled to tax treaty benefits). Foreign nationals who elect to file as a resident with a U.S. citizen or resident spouse must include their worldwide income in their U.S. return.
Resident aliens frequently fail to include foreign income in their U.S. return for a variety of reasons:
- Foreign investment income is taxed at source so they think they have no obligation to include it in their U.S. tax return
- They know that their foreign investment income should be included in their U.S. return, but rules such as foreign tax credits are too complicated for them to deal with
- Their capital transactions are not taxed in their home country and they expect that the transactions are not taxable in the U.S. either
- Their tax preparer never asked them about income from abroad so they did not know that it was income for U.S. tax purposes
4. Claiming incorrect personal exemptions
In order to claim more than one personal exemption amount, nonresident alien taxpayers must be U.S. nationals or residents of Canada, Mexico, or Korea (South). Nonresident alien students and business apprentices from India may claim a spousal exemption (if the spouse meets certain restrictions) and exemptions for children who are U.S. citizens or resident aliens.
In order for a dependent to be claimed for a personal exemption by a resident alien taxpayer, the dependent must be a U.S. citizen, resident alien, or U.S. national, or a resident of Canada or Mexico at some point during the tax year in question.
5. Incorrectly claiming a tax treaty benefit
The United States has income tax treaties with over 60 countries. Many foreign nationals, particularly foreign students and scholars, may be eligible for treaty exemptions from tax. Eligibility for treaty benefits is based on tax residency (not citizenship) in the treaty country as described by the treaty article under which a benefit is claimed.
Treaty benefits for income such as dividends, interest, rents, and royalties require the taxpayer to be a resident of the treaty country and not a resident of the United States when the income is paid. Generally, tax treaty provisions for students, trainees, teachers, and researchers allow the taxpayer to keep the treaty benefits even if they are no longer tax residents of the treaty country and/or have become tax resident in the United States.
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6.
Claiming improper temporarily-away-from-home expense deductions
Taxpayers who have been providing services who are temporarily away from their tax home may claim deductions for their travel, meals, and lodging. (Expenses related to their family members are generally not deductible.) To be temporarily away, taxpayers must be at their temporary work location for a period anticipated to be a year or less. Their tax home is their principal place of business. A short absence of a few months between visits is not sufficient to restart the clock for purposes of these deductions. If travel, food, and lodging have been paid or reimbursed by their employer, deductions may only be claimed if the amounts are included as compensation in gross income on Form W-2, 1042-S or 1099-MISC.
7. Excluding certain taxable capital gains on stock sales on Form 1040NR
Capital gains on property other than real estate are fixed or determinable annual or periodic income subject to 30 percent tax on the net gain (reportable on page 4 of Form 1040NR) unless an exception applies. Nonresident aliens can exclude their capital gains on property such as stock if:
- The capital gain is foreign source or
- The capital gain is U.S. source, but the recipient is in the United States for less than 183 days in the tax year.
Foreign nationals in nonimmigrant categories such as A (diplomats), G (employees of international organizations), F, J, and M (students) and J and Q (nonstudents) typically remain nonresidents for a number of calendar years under the 183-day residency formula, but are physically present for purposes of the 183-day capital gain.
8. Failing to file disclosure forms
Foreign nationals who become resident aliens who maintain income-producing assets overseas; transfer assets to foreign entities; are grantors of, or recipients of income from, foreign trusts; or are recipients of certain gifts or bequests from abroad may be required to submit disclosure forms such as:
- Form TD F 90-22.1 to report a financial interest in or signatory authority over a financial account(s) in a foreign country
- Form 3520 to report transactions to or from, and/or ownership of, foreign trusts, and/or gifts from foreign donors or bequests from foreign decedents
- Form 3520-A required to report on foreign trusts with a U.S. owner
- Form 5471 to report U.S. shareholders of foreign corporations (and to determine deemed dividend income subject to current taxation)
- Form 5472 to report foreign shareholders of certain U.S. corporations
- Form 8833 to report certain income tax treaty claims
- Form 8891 to report income being deferred on certain Canadian Registered Retirement Plans
- Form 8898 to report the beginning or ending of bona fide residence in a U.S. possession
Foreign nationals who are nonresident aliens may be required to submit one of the following disclosure forms:
- Form 8840 to report facts supporting a claim of nonresidency status based on a closer connection to a foreign country or countries
- Form 8843 to report U.S. days that do not count for residency determination purposes
- Form 8854 to report information required annually for certain U.S. citizens and long-term U.S. lawful permanent residents
9. Failing to file a federal tax return
Foreign nationals fail to file U.S. tax returns for a variety of reasons:
- Their income was exempt from withholding taxes under a tax treaty and they are unaware of the requirement to file a return for the treaty claim
- Their U.S. income has not been subject to U.S. withholding taxes, as is typical with rents paid to nonresident alien landlords, and the taxpayers are unaware of the obligation to file a tax return to claim offsetting deductions
- All of their income was paid abroad and they are unaware of the sourcing rules that can cause income such as compensation for services in the United States to be U.S.-source income (regardless of the currency or location of the payment) Open Range divx
- Payers neglect to send them required income statements so they are unaware of their tax return filing obligations
Nonresident aliens who fail to timely file their nonresident tax return can lose deductions and credits to which they would otherwise be entitled.
10. Failing to file a state income tax return
Whether foreign nationals have a state income tax filing obligation depends upon whether they are state residents (under the state’s rules) or whether, as nonresidents, they earn income from certain sources in a state that imposes income taxes on individuals, and whether their income meets the state’s filing threshold. Foreign nationals who prepare their own tax returns frequently fail to submit a required state income tax return. In fact, a number of internet sites and special tax preparation software that prepare nonresident federal returns do not prepare state income tax returns.
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About The Author
Paula N. Singer, Esq. chairman of Windstar Technologies, Inc. and partner in the tax law firm, Vacovec, Mayotte & Singer, Newton, MA, has over 25 years of experience providing advice and compliance services to employers on cross-border employment matters. She is also the editor of “US Tax Compliance For Immigrants And Employers: The Lawyer’s Complete Guide”. To learn more, see: http://www.ilw.com/store/tax.shtm. For more information, visit www.windstar.com. For additional information, call 1-800-259-6398 or email:info@windstar.com.
How to File a Freedom of Information Act Request with EOIR
March 21, 2009 by Thomas Esparza
Filed under Attorneys
U.S. Department of Justice
Office of the Director
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
FACT SHEET
Contact:
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(703) 305-0289 Fax: (703) 605-0365
Internet:
October 9, 2008
How to File a Freedom of Information Act Request with EOIR
To file a Freedom of Information Act (FOIA) request with the Executive Office for
Immigration Review (EOIR), your request:
• Must be in writing, either handwritten or typed.
• Must describe the records you seek.
• Must include identifying information such as the full name of the alien whose
records you are requesting, the date and court location of the proceedings, and the
alien registration number (if known).
To request information about yourself, your request must include either:
• A completed
Form DOJ-361
Form G-639), or
• A notarized statement from a notary public who has witnessed your signature on
the request, or
• The following statement, written immediately above your signature on the
request: “I declare under penalty of perjury that the foregoing is true and correct.
Executed on [date].”
To request information about another individual, or on behalf of another individual, your
request must include a notarized statement from that individual giving his or her consent to
release the information to you.
To request information about a deceased individual, your request must include proof of
the individual’s death. (Proof of death may be a death certificate, newspaper obituary, or some
other form of comparable proof.)
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For more information see
http://www.usdoj.gov/eoir/efoia/foiafact.htm
further questions, please contact the FOIA Service Center at (703) 605-1297.
–– EOIR ––
Office of Legislative and Public Affairs
How to File a Freedom of Information Act Request with EOIR
Page 2
The Executive Office for Immigration Review (EOIR) is an agency within the Department
of Justice. Under delegated authority from the Attorney General, immigration judges and the
Board of Immigration Appeals interpret and adjudicate immigration cases according to
United States immigration laws. EOIR’s immigration judges conduct administrative court
proceedings in immigration courts located throughout the nation. They determine whether
foreign-born individuals—who are charged by the Department of Homeland Security with
violating immigration law—should be ordered removed from the United States or should be
granted relief from removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR’s
Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment
cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.
Executive Office for Immigration Review
