Is working with Not Valid For Employment SSN a problem?

Cynthia writes, "I have worked for over 10 years with my own Social Security number that was issued to me when I was younger. However, the social security number does state on it "Not Valid for Employment." I have also filed taxes with this number every year that I have been employed. I understand that I am still breaking the law, however, I did not falsify any documents or steal anyone's identity. Would this still affect me in filing for DACA?"

Now, the good news is that you did not steal someone's identity or used false number or submitted fake documents, all of which are separate crimes.  So you are better off than many other DREAMers who have done all of these including working without authorization. As far as working with a Social Security number that does not authorize you to work, you have definitely broken the law, though, what you can be charged with depends on the prosecutors (at this time it is not clear if USCIS will refer these cases for action or simply reject the applications or even approve them considering that this is not going to give you any legal status and only defers deportation), but just as an example, here are a few that you could be charged with:
  • Using false documents to be employed: A maximum penalty of 10 years without parole in federal prison and a fine up to $250,000.
  • Making a false statement on an I-9: A maximum penalty of 5 years in federal prison without parole and a fine up to $250,000.
  • Misusing a Social Security number: A maximum penalty of 5 years in federal prison without parole and a fine up to $250,000.
In addition, the taxes that you have filed can complicate the situation.  I am not saying that you have done anything wrong on your taxes (I am no expert on taxes and I have not seen yours) but even though you paid your taxes, which is a good thing, every time money is involved in interaction with the United States Government, even a dollar not paid or received if you did not deserve it can create tax fraud situations.

I would say that you should consult an attorney who is well versed in immigration, Social Security, and tax matters (don't just call an attorney to discuss filing your DACA application but schedule a consultation for an hour and pay for it) and then find out all the implications for you.  For someone like you who has lived for so long like this, it might be better to wait (till we find out what USCIS decides in similar cases) or simply hope for action from Congress in which such problems will be forgiven.  When President issued this executive order, he was merely trying to help otherwise law-abiding undocumented youth but he has no authority to grant an amnesty.

Should I take the risk of applying for deferred action even with false SSN issue?

Lee writes, "I have used many invented SSN at different jobs.  I have also filed taxes starting 2009.  I have everything ready in my DACA application to turn in, but the form I-765 WS is obviously giving me many headaches. I don’t know if I should just be honest and add my income and expenses (I live on my own, 25 years of age, I basically paid all the regular bills and expenses as an American average man: rent, car, bills, daily expenses, etc.).  I live on a paycheck-to-paycheck basis, therefore, I really don’t have any assets.  I have read many post and recommendations in your blog and I don’t know If I should wait for applications to be rejected or just turn mine in?  Any thoughts on this matter are extremely appreciated."

My advice would be to wait for a few months.  In immigration matters, and actually in all legal matters, honesty is the best policy.  The risks of telling a lie are huge in all immigration cases but they are particularly high in this one: there is no appeals process.  So if the prosecutor has even a little bit of doubt he can reject your application and you would not be able to do anything about it.  This is even worse than what rights someone has for a tourist visa. 

Your case is a complex one for sure.  You have a messy history with multiple SS# and then you have a taxes paper trail.  The advantage of waiting are twofold.  You can watch what happens to others and then respond accordingly.  Two, you can simply decide that you would rather wait for an amnesty that will allow you to erase your past crimes.  The last thing you want is for your application to be rejected and then also charged with identity theft and tax fraud.

In any case, I strongly encourage you to discuss this with your attorney but also think it through yourself because many attorneys simply are interested in you filing the application so that they can get paid.  So just pay for an hour of consultation first.

Country of residence for DACA application

In my instructions to complete the USCIS Form I821D, in answer to question #9 of Part 1, asking for country of residence, which I have suggested should be chosen as the United States, has caused some confusion.  Some of you have been wondering that because you are not a legal resident of the United States, you have to pick the country of your citizenship.  

My attorney friends are pretty sure it has to be the US because one of the requirements for DACA is "Have continuously resided in the United States since June 15, 2007, up to the present time."  In fact if someone does not reside in the US, they are not eligible.  In your application you also have to submit "Proof you continuously resided in U.S. since June 15, 2007." 

Also a common understanding of residence is what one would consider as one's home, where one normally resides, though, in some cases, there maybe a time period, e.g., for the last 12 months, or a place one has spent most of the year.  USCIS has not specified what it is looking for here and that is why it is fair to understand that if you live in the US, that is your residence (I also think that the whole premise of deferred action by President Obama is that if these individuals established residence in the United States as children, they should be allowed to reside here till Congress legalizes their status).  In fact, if one were to be in the US on a student visa, for example, and would want to change it to another visa category, they would need to pick the US as country of residence.  In some cases, though, US Government will insist that you apply for a visa in your home country (e.g. changing from a tourist visa to work visa is not allowed within the US) and that is why the country of residence and country of citizenship are important.

I actually believe that if one were to pick another country as residence but then in their current address question they would not be able to put their overseas address because the only option is a standard US address (the USCIS expects you to have all your current and future addresses in the US); that would simply cause a lot of confusion.  My hope is that answering this question by adding another country will not necessarily disqualify someone because the adjudicating officer will see that your current residence is in the US and assume that you simply made a mistake (in other words, if you already submitted the application with this mistake, it is not going to be an issue).

Should I lie to USCIS about working illegally to get my work permit?

Melissa writes, "I came to U.S. when I was 15. I'm currently in 3rd year in college. I'm living with my mother - who is also here illegally, and I did work off the books for the past year. I spoke with a lawyer and she told me that I should tell the truth about my income, and just explain it below, that I'm working off the books in order to support myself, and this will be enough proof that I need the work permit.  She also mentioned a few times that she cannot tell me to lie to the immigration services.  I have a lot of doubt on whether to tell the truth, and say on the application that I work off the books, or should I write that my income is zero, and that my parents support me. If I make the second choice, isn't that going to affect my parents, who are here illegally and work off the books as well?  I'm really confused.  We only get one chance to send the application; I don't want to miss my chance of being here at least half legally."

Merely holding odd jobs maybe looked upon leniently by the USCIS:  I have been hearing about a lot of very complex cases, but yours appear to be somewhat simpler and easier.  I am assuming that you have been working without using a fake or stolen Social Security number, which by itself is a separate crime (and the penalties are much more serious).  So, if all you have done is work without authorization, you have simply broken one of the laws (and probably one that is more likely to condone particularly if you worked odd jobs here and there in a restaurant or small business), and not two, as many DREAMers have done.

My understanding is that whatever you report in your forms is not going to affect anyone else in your family.  That is a commitment from the USCIS.  So your actions have no impact on your parents.  People who need to worry more are your employers, who have broken many US laws and can be fined.

If my assumption is correct that you have been working without a false SSN, it would be fine to apply, show your actual income, and then explain in the notes section, something like, "In order to defray some of the costs of college after financial hardship in my family, I have been working part-time since (enter date).

Being illegally in the country and working without authorization are serious crimes and typically most immigration benefits are denied to them:  Remember that everything that you say in the application can be cross-checked by the USCIS and you maybe ordered to verify or to provide evidence for anything that the prosecutor has doubts about.  So obviously every time you break the law, there is a risk that you maybe punished for it (alternatively, it would not be surprising for the prosecutors to ignore this because this is only a deferral and your status is not being legalized).  The risk that you and others have is that by voluntarily admitting to your crime, you are creating a record in your alien file and some of this may come to bite you later on.  While your case is one of relatively low risk, my advice for people like you is that if you can wait for a few months, you should.  It will be good to find out what happens to those who took the risk of confessing their crimes.  If they are denied, you would have saved hundreds of dollars and your hope would be a piece of legislation that not only grants you legal status but also forgives crimes like working without authorization.  On the other hand, if we learn that USCIS is not penalizing those who worked without papers, you can submit your application.  In the meantime, you can start compiling all the documents that you will need.  There is no end date for this program and it will continue as long as Obama is president.

USCIS Form I-765WS for stay at home moms

Karla writes, "Well, I am single but my boyfriend works and he pays for my four kids and my expenses.  I don't know what to answer for income and expenses.  I don't know if I should put just mine or also include their expenses.  I do want the work permit because I want to be independent and help with my kids' expenses.  Help me please!"

So for income, if you are not working, then write zero.  Now, imagine if your boyfriend would dump you or lose his job, what would it take for you to pay for you and your kids?  Those are your expenses.  They should include housing, food, utilities, transportation, education, clothing, daycare, etc.  If you own anything valuable, write down in your assets.  Do not write down things that belong to your boyfriend because in reality they are not yours even though you may love each other and when he is being romantic, he might tell you every day that they are also yours.

Now, finally, in part 3, write something like,  "I would like to work not only to help my boyfriend with the expenses, but also to be independent so that if our relationship falls apart, I would not be on the streets with my four kids."

Should I hide my money from USCIS to justify economic necessity?

Henry writes, "Since I am approaching my 30s now and have been working hard over the years, I have managed to save money that I keep in my bank.  I know I have to provide information on my assets in in I-765WS but I was also planning to use my bank history as evidence of my addresses and to prove that I have been in the country.  In order to justify an economic necessity for a work permit I am afraid that having over $25K, that I have, might hurt my case.  To get a legal opinion, I talked to an attorney and she told me that I should transfer my money to someone else to show that I have very few assets. Is it the right thing to do?"

Now, obviously you should listen to your attorney, because I am not an attorney.  Still I do not agree with her advice that you should transfer the money to someone else because basically you will be trying to provide misleading and false information to the USCIS, which can not only lead to rejection of your application, you may also be prosecuted (though realistically that probability is low since perjury cases like this are rarely pursued, though, it can be used against you in an immigration court if you were being deported).  It addition, you will be doing something that can be easily caught.  Your bank will keep the history of that transaction for years and USCIS can get that information with a few clicks (to see that someone just emptied out their checking account just before applying for a work permit due to economic necessity is a big, screaming red flag).  Maybe you can get away with this, and maybe thousands of immigrants get away with tricks like this all the time in dealing with the United States while getting a visa or to immigrate here, but I cannot recommend doing this because it is immoral, illegal and there is a huge risk of being caught, maybe not this time, but at another time.

Why will USCIS punish DREAMers for working illegally when everyone is doing it?

Billy writes, "I am already 25 years old, I have been in this country forever, have a college degree, and have been working illegally with a fake Social Security number for many years.  I do not think this fact is not known to the authorities that millions of illegal immigrants are working without papers.  So looking at your opinion and those of other legal experts that I should not apply for DACA because I have broken the law seems a bit illogical to me.  Wouldn't they consider the fact that people like my age and education wouldn't just stay at home and not work? I am frustrated that while doing the best I could to make my life better is now going to hurt me."

Working illegally is a serious crime and may not be ignored:  At this point no one knows what will happen to those who have worked illegally, because USCIS has not given any guidance and no cases have been decided yet.  What you are saying is logical from a humanitarian point of view but if I understand it right, the program does not condone illegal behavior of any type.  There is no amnesty built in to the executive order and while working without a SSN sounds like a harmless thing to do by an undocumented immigrant who risked his life to get here or constantly lives in fear of being deported, in reality, working without an authorization is as serious as any other felony.  I am personally not yet convinced that USCIS will approve these cases and basically send a message to everyone that you can simply use a fake SS# or other documents like a green card (or simply tick the US citizen box on the job application) and there will be no consequences.  As it is there is strong opposition to the decision on legal grounds because it condones illegal behavior and encourages others in the future to engage in similar behavior, but letting people get away with a crime will be shocking to anyone. 

Any decision by the USCIS has huge consequences on the whole legal system because if applicants like you were approved, many other immigrants who are being prosecuted for identity theft or working without authorization can make a case in court that charges against them should be dropped as well.  In addition, USCIS will need to approve other immigration cases in which the applicant work without authorization or broke other similar laws.

Applicants with doubtful cases should wait:  My personal recommendation for anyone with gray areas like yours is to simply wait for a few months and watch what happens.  Maybe USCIS will indicate that they are willing to forgive working illegally (and people like me were to wrong to interpret the law in this strict manner or they have identified a loophole to help the childhood arrivals candidates) or that USCIS prosecutors simply did not investigate each application carefully or that this is not even a criteria in the internal memo within the Agency or that while people worked without the right to work but created no paper trail or evidence that can lead the prosecutors to find out about illegal behavior (here people who got paid under the table in cash and never filed their taxes may benefit while those who were honest in filing their taxes will be punished), or alternatively, we might hear from other applicants that their applications got rejected because of this.  If you have been like this for so long, another 4-6 months may not make a big difference, even though it is so tempting to get as soon as possible an EAD and then a valid SS# and driver's license.

Do I qualify for work permit if I had two stays?

Carlos writes, "I first came to US when I was 6 years old but I left with my parents when I was 8. During this period I went to school here and I have proof of that.  I came back to the USA again when I was 17 on a a B1 visa and never went back. I do meet all the other requirements for deferred action, such as GED, clean criminal record, I have been here for more than 5 years.  My question is Should I dare apply for deferred action based on my history in the USA.  I was in the country for a few years when I was under 16 years old but not the second time around. I want to do only what is right."

It seems to me that you are not eligible.  You see, when you came the first time and left, it does not matter.  People come and go all the time like this and the USCIS is very clear that if someone were gone for an extended period of time, they are not eligible.  So not only did you not enter before your 16th birthday the second time, you were also absent for a good nine years.  While you can sit down with an attorney to review your case, my opinion is that you do not meet the requirements.  I think your best hope is when the actual DREAM Act becomes law that you might benefit from, assuming that you will meet the requirements of whatever are in the law at that time. 

Should I declare my income if I get paid in cash?

Patricia writes, "I have been working for the last 4 years. Never provided any type of documentation to my employer and was never requested either; I get paid in cash. Should I declare how much I'm making? I do have have an ITIN but only used it to file taxes."

Filing taxes as an illegal alien is tricky:  You did the right thing by filing your taxes, paying what was due, (something that is always looked upon kindly by the authorities and will help you as you go through the various stages of immigration -- this is a great way to show good moral character, a requirement for naturalization) even if you were paid in cash and did not have the authorization to work.  However, it is still legally complex because you worked without authorization (did you also get a W-2?  Why did you file taxes?  Because you wanted to do the right thing or because you wanted your refund?).  The fact that your employer did not ask for any documentation - it is very clear that your employers knew your status and that is why they paid you in cash -- is not going to help you either. 

Legal consultation is a must for messy cases:  If you still wish to take advantage of a work permit and deferred action, I guess you really have no choice but to declare your income because you have filed taxes and there is a huge paper trail that you have created with your tax filings.  I strongly encourage you to consult with an attorney before filing and decide after thinking for yourself as well if it is even worth applying because of the legal mess that you have created.

Can the USCIS find out that I worked illegally?

Karen writes, "I am one of those undocumented immigrants who did not think it through and have worked for years using a fake Social Security number.  What is the probability that the USCIS can find out if I did so?"

Assume that all crimes will be caught:  With all the cool technology out there, if the Government wants, it can find out almost anything.  With more than ten million immigrants in the country and many of them working like you for years, living comfortably, buying homes, it might seem that no one cares, but the reality is that when applying for an immigration benefit, you are voluntarily subjecting yourself to scrutiny by the agencies.  While you have not really explained the complete details of your case because a lot depends on what type of a paper trail exists for you and what exactly you did and how, but it is fair to say that if you broke the law you should be aware that you maybe caught (the fact that you may have heard of people who even became citizens despite breaking the law is no guarantee that everyone else can expect the same result -- there are lots of people who are deported each year or denied immigration benefits because of being a lawbreaker or lying about something).

An attorney can help you better understand your risks:  Only a consultation with an attorney during which you go over everything with him can determine your risks.  No one really knows at this point to what extent USCIS will dig into each application, but from what I understand lying is a terrible idea (in other words, if you did so, you should not lie about it because you assume that you will not be caught like many other) and I always like to work with the hypothesis that at some point it will come up regardless of how hard you tried to hide it (many people do not realize that even when you get paid under the table or from the employer's personal checking account, the paper trail is long and easy to track down). 

If you receive a notice to appear in person for an interview or a request for evidence (RFE), you will be all by yourself in front of a very competent officer who will have a huge dossier on you (and you would not know what information is in there) and at that point lying can put you in all kinds of legal problems, including immediate arrest and deportation.  I can simply point out the scenarios, but please, I advise you to get all your facts together and schedule an interview with a competent attorney who genuinely wants to help you rather than is interested in just filing your application (which is exactly what a lot of attorneys are trying to do these days).  Remember that in picking an attorney keep in mind your own long term interest and how something small now can come to bite you down the road.  That is why do not seek free consultation for this application.  Instead, pay separately for a consultation on whether to apply or not so that you can get unbiased advice.

How much assets do I need in order to qualify for a work permit?

Charlie writes, "I graduated from high school and then got a degree in Business Marketing. After I graduated in 2008, I started working odd jobs here and there and built my saving account to about $25K. In the USCIS Form I-765WS it states that they would only give EAD to only those who can show an economic necessity to work. So I am afraid to submit this information in the Asset section. What is the best solution for me? I know this will be the only time I will have the chance to get my EAD and DL, so please advise. When I submit my Bank Statement to show evidence for DACA it will show my assets too, so I don't want to risk myself by lying and getting caught either."

Reasonable amount of assets are not an issue:  For most reasonable people, as hard as it is to save $25,000, it isn't a whole lot of money.  If you think about it, since you are not eligible to finance your car, this is the amount you will need to buy a new car.  Or if you get really sick, and assuming that you do not have health insurance, just a few tests and a night in the hospital could run you thousands of dollars.  Or if you have to live by yourself and pay for everything, $25K may not even last a year once you factor in the cost of housing, food, transportation, etc.

Now, USCIS has not given any guidelines about how it will look at these numbers and if there is a cutoff, but it is fair to assume that if you had hundreds of thousands of dollars in assets, then, it is a fair point to ask why you need to work while millions of Americans are unemployed.  Therefore, I would not worry about such a small amount.

USCIS is going to be reasonable if you have a story to tell:  I encourage you to report all the information accurately.  In the explanation section, you should provide a short statement how you have saved this money for a new car or for a medical procedure or just as a safety net for your family (these are just examples and please add your specific story that you can provide evidence for and substantiate if asked by USCIS).  You can add that if you get a work permit you will be able to spend some of this money knowing that you have a paycheck.  The only thing to watch out for is that since you have been working without authorization, this will raise a red flag.

What will happen if I tell the truth about my crime to the USCIS?

Undocumented immigrants have messy histories with instances of breaking the law:  Many DREAMers contemplating applying for a work permit and deferring action on their removal, have written to me mentioning that they have been working with fake Social Security numbers, or have stolen identities, or have bought fake SSN cards, green cards, EAD, etc., or used their ITIN to work.  In other cases, these individuals have broken the law but they were not aware of it.  For instances, many parents never told them that their SS# or green card or passport or visa is fraudulent or that they are not American citizens or are in the country illegally.  As a result, many of these people have ticked the US citizen category in job applications or happily provided documents and numbers that are either made up or illegally obtained.  I have also come across cases where parents have not told the complete story of how the applicants ended up here, hiding details or past removals and such other relevant details.

Cases that are not clearcut will simply be rejected:  It is important for you to recognize that while DACA is a relief available to anyone who meets the eligibility criteria, you must otherwise also be totally clean in every respect (in other words, unlike other immigration cases, there is no amnesty for crimes committed or US laws broken).  In other words, employment without authorization or using false documents or hiding any piece of information are not only grounds enough to reject the application, the action itself is punishable.

US Government will punish lawbreakers:  According to the USCIS, if you knowingly and willfully falsify or conceal a material fact or submit a false document, not only will your application denied as part of prosecutorial discretion inherent in the program, you will also now be subject to criminal prosecution for whatever law was broken.  Being undocumented also means that instead of deferring removal, you will not be placed into deportation for admitting to a crime.  USCIS is also very clear in stating that you will also be denied any other petitions for immigration pending at this time or applied for in the future.

Decision to apply requires a lot of thought and research:  That is why I want you to thoroughly review your case with your family, make sure that everything in your background is clean, meet with a good immigration attorney (if you have committed related crimes, you may have to meet with other experts as well), weigh the risks and benefits of this program, and only then file your paperwork.  This program does not have an appeals process and your case can be rejected at the sole discretion of the prosecutor handling your application.  It also appears that all criminal cases will be automatically referred to prosecutors for necessary action.  This may appear like a great step for the overexcited youth, but in the end it is a legally complex process for anyone with a messy record, so it should be dealt with caution.

Options for DREAMer getting paid under the table

One of my readers, Amy, has a very typical situation with regards to filing for DACA work permit after having a history of unauthorized employment.  She writes, "I've used an ITIN to work and to file taxes about five years ago.  In recent years, I have been working, but I get paid under the table.  My employers basically issue me paychecks out of their personal bank account.  Should I write my ITIN in place where they ask for the SSN?  Do you think I will have any problems for using this number in the past to work and file taxes? There is a huge paper trail with the IRS in my name.  Since my employer has been so kind to me in helping me out, in case I receive a request for evidence (RFE) or am required to go to an interview, I don't want to give my employer's name to them or anything that would potentially harm them.  Do you anticipate repercussion to our current/past employers, if I've been working without a permit?"

ITIN does not authorize you to work:  As you already know, it is illegal to work with an ITIN (and that is why the USCIS is asking only for social security numbers rather than ITIN with the premise that even foreigners who have never even visited the United States or have an intention to ever visit may get this number for the sole purpose of meeting their tax obligations to the United States -- basically anyone who owes money to the IRS needs to and can get an ITIN).  So in many ways you are no different than those DREAMers who have worked with a fake social security number, though, in your case, you have also established a paper trail of your breaking the law by filing tax returns.

Legal opinion on filing for immigration benefits after working illegally:  There are currently two legal opinions on whether to file for a work permit under the childhood arrivals deferred action:
  1. Wait for a few months to see what the USCIS does.  Maybe it will provide a clarification or we will hear from those who get approved despite working illegally (and then you can definitely apply), or they will be denied because of this (in that case it is pointless to apply and provide all your sensitive information to the USCIS for no positive return on the risk).  
  2. Confess your crime and take the risk.  I strongly encourage you to speak to an attorney to get an opinion for yourself, because your case is really complex.  Whenever you provide any information to the authorities, it has consequences (you need to think not only of the outcome of deferred action childhood arrivals application but also potentially a green card, and eventually, naturalization).  Any information you provide right now to the USCIS will become part of your alien file (associated with an A#) and will come to haunt you every time you deal with the agency.
Always be prepared for answering questions from USCIS and providing backup evidence:  For each piece of detail you provide, you maybe required to provide more documentation or information if the USCIS orders you to.  I do not anticipate that anyone will go after employers -- there are millions of people working illegally for tens of thousands of employers and there simply aren't enough government resources available to prosecute them, the penalties for employers are few or none, plus, they often pass the blame on the workers for providing false documentation -- but still even though your employer maybe nice to you (most likely you are being paid lower wages) but in a legal situation expect that they will most likely accuse you of lying and submitting false papers, and putting you in even more legal trouble.

As I discussed above, if you show any income in your I-765WS (remember that, you should work with the hypothesis that USCIS can check each and everything, including bank accounts and checks received -- that is the purpose of background check and security clearance), you will be opening a whole new can of worms.  I believe that by declaring that you have income without proper authorization might mean that you are asked to provide a lot of other information at a later time.

Think long term before applying for a work permit:  My personal recommendation will be to think this through yourself about pros and cons of a work permit, meet with an attorney, and even after that, think it through before deciding if this is worth it.  Do not forget that attorneys sometimes want money more than anything else and they make money if you apply, rather than wait.  I want you to also recognize that this deferred action does not confer any legal status on you, your overseas travel plans will be highly restricted, and will create a huge paper trail with whatever information you provide.  It can come to bite you at some point.  Maybe this work permit is perfect only for those young people who are too young to have ever done anything illegal and can postpone their deportation by two years.

Honestly telling USCIS about working with false papers

For those applicants for a work permit who have worked or are currently working with a fake social security number, the consensus legal advice is to either admit that you broke the law and provide the information accurately (it is not clear how USCIS will adjudicate these cases and admitting guilt in this case means that there can be consequences because of identity theft laws that treat this as a felony) or wait for further guidance from the USCIS.  It seems that legal experts are in agreement that no one should lie about it.

Larry, one of my readers, is taking the risk of truthfully telling the USCIS what he has done and hoping that his honesty will be rewarded.  He writes, "I initially hired a paralegal to do my Deferred Action process paperwork, but he insisted on putting my false Social Security Number I've been using to work. I told him it could be a bad idea but he said that it's recommended to not lie to the USCIS and write down the fake number I used (I have been hearing on television as well that it's not recommended to show my false number and tax documents). To clear up this confusion, I personally made an appointment with an Immigration Attorney and asked him about Question #9.  I asked him if I should write down the false number I used for work on this application.  His answer was the right one, I guess.  He said that this question is only to those who received a valid umber from the Social Security Office.  USCIS will confirm all the data provided in the application with the Social Security Administration.   So, in my case, he told me not to leave it blank and also include a copy of the income tax return that shows my false number. He said this is the correct place to prove that I need a valid SSN to work and I'm not lying."

I am publishing this piece of information just to get it out there.  It does not mean that it is the best legal advice and you should follow it.  The best path forward for anyone in a similar situation is to think it for themselves, do more research on their own, seek legal advice, and then make up their minds.

Possible scenarios for DREAMers afer Romney victory

I have highlighted previously the dangers posed to DREAMers by Mitt Romney (remember he is the guy who has promised to veto the DREAM Act, so even if the Democrats control Congress, he can kill it), and even though, in order to fool the Hispanics into voting for him, he did mention that he might sign a DREAM Act only for for those who serve in the US Military, it looks like he said that only to win the election.

The GOP platform is now out and these are its main points that affect DREAMers:
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  1. Use of E-Verify system will be mandatory for employers.  What that means is that it will become nearly impossible for illegal immigrants to work using fake social security numbers.  It is possible to do so right now because E-Verify is voluntary and employers are happy to employ cheap labor and avoid paying what they owe to the Government.
  2. Universities that allow undocumented immigrants to enroll at in-state tuition rates will not get any Federal aid.  This will kill the program instantly because no university can survive if it does take grants from Uncle Sam.
  3. GOP will oppose any form of amnesty to illegal immigrants and DACA is an amnesty.
  4. GOP has also adopted Romney's amusing concept of self-deportation, though, it is clear that inherent in it is the concept that illegals who do not leave voluntarily will be apprehended will be deported by force.
In light of the above, and particularly for those of you have used other people's SSN to work illegally, it may make sense to wait to file your application for deferred action.  In addition, while you cannot vote or donate to campaigns, DREAMers can work to defeat Romney-Ryan and other Republicans by convincing their citizen friends and family members to register to vote, donate to campaigns (permanent residents or green card holders can donate but not vote), and make sure that they cast their votes (you can offer them rides or even help them complete an absentee ballot).

Update:  Romney announces that Obama DREAMer work permits will be honored by him but no word on whether the DACA program will be renewed. 

Steps after work permit and deferred action

Once DREAMers get a work permit, the fight is not over.  It seems that illegal immigration is a political sensitive topic, particularly in a presidential election year.  It is clear that Democrats sympathize somewhat with undocumented individuals while Republicans would like to maintain the status quo (apparently they like the illegals because of access to cheap labor for farmers and job creators, two major group of conservatives) in that they do not want them to be deported but do not want to give them any status at all.  We are already hearing that Arizona, Nevada, and Texas may not provide many benefits that President Barack Obama envisioned when he issued an executive order for deferred action for childhood arrivals.

So what is guaranteed after you are approved?
  1. A social security number that authorizes you to work for the duration of the work permit, which will initially be for two years, and will be renewable, particularly if Obama wins reelection.  It seems very likely that Mitt Romney will either cancel the Obama executive order (all it takes for him is to sign it, and no other people need be consulted) or if he does not want to annoy the Hispanics, he may simply let it lapse after two years by not renewing it.
  2. Right to work anywhere in the United States.
  3. While it is something not recommended and should only be undertaken under extreme circumstances, opportunity to travel overseas after getting advanced parole from the USCIS.
What is not guaranteed after the approval?
  1. Driver's licenses.  Each state has its own set of rules and you will need to consider if moving to a friendlier state is an option, particularly if driving is a must for you.  If you do not plan to drive, the EAD card can be used to prove that you are somewhat "legal" in the country (even though no legal status is conferred on you); it is enough to get ICE off your back and even the police will honor it.
  2. Recognition by state agencies as a proof of your residence in the state.  This may make it harder to register cars and to get access to other state services.

What are the consequences of using a fake Social Security number?

Many of the DREAMers applying for an EAD are struggling with the issue of their past use of a fake/false SSN to work illegally.  Obviously, the USCIS, DHS, and IRS are aware of it, and at this time the application process for the work permit under the deferred action childhood arrivals does not provide any guidelines on what happens if it is found out there is no match between your name and SS#.  There is no consensus among attorneys either right now and while one legal opinion is that there is no need to report any numbers that you have used to work in the past because these are not your numbers anyway, while other experts think that all numbers should be listed.

Obviously, each case is unique and everyone should consult with an attorney to get a legal opinion, but this is a very complex situation, and can have serious consequences not just for a work permit under DACA but also for future steps like DREAM Act, green card (permanent residence), and eventually citizenship.  There is no doubt that identity theft is a federal crime and states have other related laws, and as far as immigrants are concerned any claim at any time to be an American citizen is a serious problem even if you are not prosecuted for it (prosecutions for identity theft alone are rare but when it happens in conjunction with another crime then prosecutors will add a charge).

Surprisingly, the US Supreme Court has ruled (in the case of Ignacio Flores-Figueroa) that an immigrant who simply uses a SS# (belonging to someone else that he or she purchased from a criminal or simply pulled out of thin air and depending on what it is, it may or may not belong to someone else) for the purpose of employment is not committing identity theft because he is not knowingly using that information belonging to someone else (and he is not stealing that person's name, address, date of birth, etc. only the SSN).  So theoretically, if you used a number that belongs to no one, you have committed no crime.  On the other hand, if you cooked up a number that turns out to belong to a real person, you still may not be in trouble as long as the intention was not to cause deliberate harm to this individual.  In that sense those individuals who have been using social security numbers belonging to someone they know well (because it is a deliberate action even though the person may have given you implicit permission to use it, though, that itself is a crime), or it belongs to a real individual, may have more to lose than those who simply picked a random number or bought a number from a crook.

So what are the implications?  It is indeed true that at every point in the immigration process, various agencies would want to know if you have ever used other numbers or claimed to be a US citizen (those illegal immigrants who simply check the US citizen box in an employment application in order not to submit any proof of their authorization to work are in deep trouble when it comes to legalizing their status) and the outcomes may depend on individual situations, ranging from outright rejection of applications to prosecution and deportation.

Chances are that most applicants for this process will be approved for a work permit without any hassles (it is not expected that the USCIS will refer cases of identity theft to prosecutors because DACA merely defers action on deportation for two years at a time but does not grant any legal status), but in many ways the process of enforcing these laws is totally broken.  Many applicants can get away with no consequences, but depending on individual situations, it could also result in complications with approvals of legal status/permanent residence/naturalization.  It is best to discuss this with a lawyer well versed in immigration and identity theft matters.

Should you apply for DACA if you are in a situation like this?  The simple answer is that right now there is no guidance from USCIS how it will treat applicants who have used a fake social security number for employment.  Even if the agency does not bother with prosecution, it may simply reject the application due to the crime committed.  What may happen, though, is that at some point, USCIS will clarify this because many attorneys are already screaming about this.  In addition, applicants with this problem who have already filed and are either approved or rejected will go online to provide updates on their cases.  So if you want to be super-safe, in addition to working with an attorney to deal with this dilemma, you may wait and not file your application till there is more information available.

Completed sample Form I-765

For your work permit as a DREAMer the USCIS requires you to complete an application for employment authorization (which results in issuance of an EAD that allows you to show to a potential employer that you are authorized to work legally in the United States) along with I-765WS establishing an economic necessity for employment.  Below is an example of what a completed application will look like:
  1. Check "permission to accept employment."
  2. Provide your name and any other names used in the past and this should be the same as other two forms I-821D and I-765WS.  Provide your mailing address.  Also provide your country of citizenship and place of birth, date of birth, gender, and marital status.  If a valid social security number was issued to you, provide it here (do not provide any numbers that you just made up or belong to other people or bought from a broker -- apparently the agency wants to make sure that the number you write is only yours; it appears that you should not write your ITIN here, even if it is yours).  If you used a false SSN to work, consult a good attorney before filing or simply wait to find out what USCIS decides in such cases and only then file your application (even if no prosecution results due to identity theft and/or using a fake SS#, the USCIS may simply reject your application).  Generally speaking, admitting to using the SSN of a citizen (meaning claiming to be an American is a serious crime and those persons can never be given such benefits as green cards and citizenship) has serious consequences.  My recommendation is that if your case is clear-cut and straightforward and you have never worked before using a fake SSN, go ahead and apply.  If not, wait for some time to see how this plays out.  Most of you will not have an Alien Registration Number, but if you do, provide it here.  Otherwise, provide the I-94 number.  If none available, leave it blank. 
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  • I am assuming that you have never applied for employment authorization before and the correct answer is NO.  If you did apply for whatever reason and even if you were rejected, you need to provide all the information, along with copies of documentation.
  • In item #12-15, provide the same information that you provided in form I821D so it is consistent.  If you entered the US without inspection, write entry without inspection for item #14 and unlawful status for #15.  For item #16, write c and 33 as shown.  Item #17 does not apply to you.
  • Finally, sign and date the application along with writing down a phone number that you answer that also has an answering machine or voice-mail.  If you don't answer this number, make sure that the person speaks English and can take a message.  If not, get a phone number for this purpose alone for the duration of your application.
  • Completed sample USCIS Form I-821D

    Update on June 5, 2014:  The information below is outdated since the USCIS changed this form.  Please use the completed sample example of the latest USCIS Form I-821D instead.

    In order to receive a work permit by DREAMers, one of the three forms that they have to file is USCIS Form I-821 D and the purpose of this form is to assess if they are eligible for deferred action for childhood arrivals.  Here are some helpful tips and suggestions along with examples of answers.
    1. For Part 1, Information About You, pull out your passport and birth certificate, and complete the questionnaire as accurately as possible in black ink or type it out online and then print it in black and white.  The mailing address should be the one where you currently live or some place where you can definitely receive your mail, because this is the address to which the USCIS will mail all letters.  If you live somewhere you are not confident that all your mail will be delivered to you, provide an address where someone who cares for you.  Even better, get a post office box somewhere for the duration of this process so that your mail will not be displaced.  The last thing you want to have is lost mail from USCIS.  As far as removal proceedings are concerned, I am assuming that the answer is NO, because if the answer is YES, I would expect you to use an attorney to do your paperwork.

      Information about you section of form i821d
    2. For question number 4, if you were ever assigned an A#, complete it.  This number is generally provided to applicants for immigrant visas.  If not, leave it blank.  Similarly, if you have a social security number (even if it does not authorize to work and you have never worked using it), provide it here.  If you have used a fake SSN or that of someone else, consult an attorney because this is a serious crime and could be grounds for rejection of your application (it is likely that at some point USCIS may clarify this issue and give guidance on what it intends to do in such cases, or alternatively, you can wait to find out what happens to those applicants who are applying either by not providing this information or admitting to a crime).  If you simply do not have one, leave it blank.  Questions 6 to 11, are straightforward, and make sure that for country of residence, you pick the United States, because that is where you should be living in order to be qualify (the simple definition of 'country of residence' is whatever country you have been living for some time even if you are not here legally; in this case, it is the US -- your nationality tells the authorities where you are legally a citizen of).  Regarding other names used, this is your chance to provide if you have more than three names or your names were switched or you changed names after marriage, or if there are spelling differences in your names on your passport/birth certificate/high school certificates.  Provide further explanation later on if it is still confusing. 
    3. Starting from items 13 to 17, enter your date of entry into the US, even if you are not sure about the exact date.  Enter the airport or land crossing name if you entered with inspection, otherwise, enter the name of the town closest to the border crossing if you simply crossed without inspection.  In #14, pick the category that your I-94 has; otherwise, pick entry without inspection if you simply crossed the border illegally.  If you have Form I-94, enter the information, and if you have lost it, leave it blank, but provide an explanation at the end.  Filling education details should be simple and straightforward and you should have correct documents to prove your education credentials.  If you ever served in the military, get your file out and enter all the details.
    4. In Part 2, arrival/residence information, you will hopefully answer YES to both, if not, you might need to discuss your case with a lawyer.  Or you might not be eligible to apply.  So make sure that you under eligibility requirements for deferred action for childhood arrivals.  Under present address, provide your address where you live, even if it is different from your mailing address you provided earlier.  If you have ever lived at any other places, provide all those addressed going all the way back to your initial entry.  Do not stop at June 2007.  You need to include each and every single address unless you were there for days/weeks.  Regarding departures from the US, again, I am hoping that you do not have any departures, because if you do, you better seek legal advice.
    5. In part 3, criminal, national security and public security information, I expect that you will answer NO to all five questions.  Remember that speeding/parking tickets do not count, but if you have had trouble with the law, speak to a legal professional first.

    6. In part 4, since you are filling the application yourself, pick 1(a), date and sign your name, and provide a telephone number that either you will answer or someone who speaks English can take a message.  Make sure that you have voice-mail or answering machine on this number so that someone can leave a message.
    7. Part 5 and 6 are not meant for anyone completing the application on his/her own and if you are using a professional to fill it or using an interpreter, they will fill it, and that is why it is not valid for this article.
    8. Part 7 is to be used to provide additional information to each and every question above.  Use it effectively.  Basically, if you want to provide new information for any item, then go back to that item in the form, copy its page number, part number, and item number and fill it here.  Then in the blank space provide the information in detail.  So for example, you want to talk about how you also had a nickname and some of your certificates that prove a bunch of things about you are in your nickname, that can be stated here.  In yet another example, you may add in item 2a, page 4, in 2b, you provide, part 3, which is about criminal/safety, and then in 2c, you provide the item number, for example, 5c, and then in 2d, you can explain this point by saying that, for instance, you were once involved in beating up someone when you were a teenager because you belonged to a group of bad friends.  If you want to add even more addresses in the US, in 2a, 2b, 2c, and 2d respectively, you will put 3, 2, 5, and then in 2d, put the address(es.)
      Sample filled part 7 of USCIS form i821

    Completed sample Form I-765WS

    I already provided tips on completing the USCIS Form I-765 WS by DREAMers seeking work permits, but several of you have written that I provide a sample.  So below is a snapshot of an example form that I completed for a fictitious individual.  Please note the following:
    1. Complete your name in such a way that it is consistent with I-821D and I-765.
    2. For current annual income, if you have a regular, full time job, simply use the information from your pay stub.  If not, simply add up the money you have made so far and estimate what your annual income is going to be.  However, if you work casually here and there performing small jobs, and do not have a steady job, simply add up whatever you were paid.  Do not forget tips and cash payments that you might receive, for example, in odd jobs.  If you made no money, for instance, if you are still in high school or simply do not have a job, write zero.  Keep good records of your basis, and definitely anything that can prove your income, because if you receive a request for evidence, you will have everything ready.
    3. For current annual expenses, add up all the expenses that you or your family incurs on you.  If you live independently, this Math is simple because you can include expenses like college tuition, rent, food, gasoline, taxes, living expenses, etc.  If you live at home, do not include what you do not pay.  For example, if you do not contribute towards rent paid by your parents, do not include it.  On the other hand, if you pay towards groceries or pay your part in a cell phone plan for the family, include that.  Any expenses that your parents are paying for right now but you intend to pay them back, for example, college tuition, include it in your expenses.  Keep good records of your calculations, for example cell phone bill copies, and be ready to submit that to USCIS, if asked for.  Also be prepared to explain to an officer why certain expense is included.  For example, if you party hard each week with your friends and blow a hundred bucks on alcohol and food, do not expect anyone to be convinced that it is a reasonable expense and should be considered an economic necessity, regardless of how essential you might think hanging out with your friends is.
    4. For current value of economic assets, make a list of valuable things you own and assign a reasonable value to them.  Unless you own very expensive clothes or gold/silver jewelry or other valuable items, they have no value because your jeans and tee shirts are pretty much worthless.  However, if you own a car that you paid for (a car provided to you by your parents is not your asset) is an asset as long as you can sell it and get some money in the used car market.  And remember that you may have paid $500 for a computer or electronics, if you try to sell it on Craig's List, it is most likely worth just $50.  So value it accordingly.  Keep this calculation in your application file and be prepared to present it at a later time if asked for by USCIS.  Do not write zero, unless you really have absolutely nothing of value.  If you own property and/or other valuable assets anywhere in the world, they should be included here, though, you can provide an explanation that they are overseas and not available to you at this time.
    5. In Part 3, Additional information section, even if you have low income, high expenses, and minimal assets (thus, making it very obvious that you need to work due to an economic necessity) you should still provide a short and sweet explanation why you need to work.  USCIS has put this as a requirement and you should do your best to convince a reasonable person that it is essential for you to work.  Remember that unlike the rest of the population that can work for whatever reason, you do not have that right.  This is a privilege being extended to people who are here illegally and that is why the bar is higher.  I have provided some sample statements that you can include so use them if they fit your situation.  Otherwise, honestly explain why you need to work.
    Image of a sample i765ws form for USCIS to get a work permit for dreamers under DACA

    What to do if I used fake social security numbers?

    Marcos asks, "Form I-765 asks for my social security number.  I've used two different social security numbers under my name, one of them was my grandfather's when he was alive, and the other belonged to my elder brother.  Should I write down both of them? Any of them or none?"

    This is one of the trickiest parts of the application process and it is best to discuss this with an excellent attorney what to do if you have worked with a false SS#. So here are three scenarios:
    1. If you have been assigned a SSN by the Social Security Administration, and you have never worked, simply list this number.
    2. If you have been assigned a SSN by the SSA and it clearly says 'not authorized for employment,' and you have worked using it, consult with a lawyer.
    3. If you have bought a fake number from a crook or just decided to use a number of someone you know or simply made up an imaginary number to work, consult with an attorney.
    Remember that the only SS# you really have is the one in your name and unless you were clearly authorized to work and the card does not state "not authorized for employment," working is a federal crime.  Typically, as soon as any agency runs a name/number match and they find a mismatch, they know that the number is not valid for the applicant.  By reporting one or more false social security numbers, particularly if they belong to US citizens, you are opening a can of worms by claiming to be an American when you were not - a pretty serious crime, and that is why legal help is a must.

    Alternatively, you could simply wait to see what happens.  Either USCIS may give clearer guidelines in the coming months on how it intends to deal with this mess (which everyone is aware of since at least 10 million illegal immigrants are working using false numbers) or you will find out online what happens to those applicants who have filed their applications and have either reported or not reported their use of other people's numbers.  If USCIS starts to reject all applicants who used fake numbers, it would be best to not apply.

    In case you have no number at this time, after you are approved for a DREAMer work permit, you will be able to go to the Social Security Office and get a new one (even in the State of Arizona or Nevada because this is a federal benefit rather than state). 

    What is a removal proceeding?

    Eduardo writes, "Item number 3 of the form I-821d requires me to answer if I have ever been in a removal proceeding? I have never received an order of deportation, but I did have contact with the Border Patrol while trying to sneak through the US-Mexico border. The officers only fingerprinted me and took me back to Mexico. I sneaked back to the US in less than a week. Should I check YES or NO?"

    A removal proceeding is legal action in which authorities get an order from an immigration court to remove a person from the United States who is here illegally.  This will typically involve an arrest, imprisonment, court proceeding, and then eventually deportation.  Now, legally you were not in removal proceedings (the rules for border enforcement within a 100 mile distance and on airports/seaport are different and anyone can be turned away without a legal proceeding) and can answer NO to that question.  However, in part 7 and under item 3(d) you should explain what happened when you were sent back.  Remember when they run your fingerprints through the database that record will show up in your record and the USCIS will like you to report that voluntarily.

    Form 765-WS without income or assets and no job

    Martina writes, "What if my daughter never worked and lives with us, her parents?  We pay for all her expenses, obviously, and she has no assets herself except a few jewelry items and a laptop computer. What do I put as her income and assets?  Right now she just has too many expenses."

    To issue a work permit for DREAMers, the USCIS is requiring applicants to provide an economic necessity argument because it is designed to help those in need, rather than give blanket work permits to foreigners when unemployment is so high for natives.  In your daughter's case, please write zero for income and assets (personal belongings like clothes, small amount of jewelry and books/laptop/cell phone are worthless because their market value is practically zero).  Just make sure that her name is not on any properties anywhere else in the world.  In the explanation section, please add "I live with my parents who pay for all my expenses.  I do not work now and have never worked."  Having a reasonable amount of assets will not disqualify an applicant from getting an EAD.  For addition help, see this sample completed USCIS Form I-765WS for DREAMers.

    Can having assets disqualify from a work permit?

    Max asks, "I have about $50k savings in the bank. Would it be a good idea to list that as part of my assets? Is that considered too much money which could result in the disqualification of my work permit? Would USCIS go out of its way to trace it using my SS# if i fail to report that?"

    In getting a work permit for DREAMers, the USCIS requires the applicants to complete Form I-765WS in addition to Form I-765, a standard procedure for almost all applicants.  The rationale is that all applicants for temporary authorization to work should provide a financial rationale for seeking work.  This allows USCIS to give employment authorization documents to immigrants who may typically not be allowed to work but can if they demonstrate severe economic hardship (e.g. students).

    For you, since the bank account is in your name, you should definitely report it as an asset (you will be lying if you did not, and yes, the USCIS can find out your bank account information with just a few clicks).  It really isn't too much money anyway and in the notes below, you should add that you have been saving (list how you saved, e.g. gifts, wages, etc.) for (whatever, e.g. college, car, home, unexpected medical bills, etc.).  Also provide some explanation of how working will help you (e.g. use your education to pursue your dream of being a nurse or save money for something meaningful). 

    How to complete Form I-765WS for deferred action for childhood arrivals application?

    To receive a work permit under the Deferred Action for Childhood Arrivals process, the USCIS requires you to submit a complete package consisting of Form I-821D, I-765, and I-765WS, the document that demonstrates an economic necessity for employment.  Like the other two forms, this is also really simple and you even wonder why anyone would even ask for it, but it is important to fill this truthfully and accurately.

    Under part 2, question #2, if you working (illegally, of course), you should provide your income accurately.  This number should be reported even if you were being paid under the table.  It is tempting to not report your income on which you are not paying taxes or your employer is doing something fishy, but if you do not tell the truth, you will be lying, and that is worse.  If you lie is caught, your application will definitely be rejected.  The worst outcome in the other case is that you might owe some back taxes, though, most experts doubt if things will work like that.

    Under part 2, question #3, put a total of all your expenses.  If you live with your family, you can divide the cost of food, housing, etc. among all the members, and report a number for you.  Obviously, expenses that are only for you, like education, car, phone, books, etc. should be included.

    Under part 2, question #4, include the money you might have in the bank or any other valuables that you might own.  Your clothes and cell phone do not count, but include the value of a car, land, stocks, homes, jewelry, etc. even if they are overseas.  Merely owning assets will not disqualify you from a work permit.  The USCIS understands that you want to work even if you do not need the money to survive, because someone did not go to nursing school to sit at home her whole life.

    In part 3, you can provide an explanation if something is out of the ordinary.  For example, if you have huge assets outside the United States, you can explain why you do not have access to the assets to pay for your expenses.  However, if you have low income, reasonable expenses, and little or no assets, then, there is no need for any explanation.

    How to complete Form I-765 for deferred action for childhood arrivals?

    Along with Form I-821D you will also need to complete Form I-765 simultaneously in order to get a work permit under the Deferred Action for Childhood Arrivals process.  This form also couldn't any easier and can be easily filled by the applicant and if you are looking for an example of what a completed Form I-765 looks like, I have provided one.  This one page application is straightforward, except that for your category, in answer to question number 16 (letter and number of eligibility category), you must enter the letter 'c' in the first parenthesis and '33' in the next parenthesis.  Leave the third parenthesis blank.

    In case you were confused about question #15 (current immigration status), please enter "Unlawful status."

    I also want you to remember that the USCIS will first process your application for deferred action and will not act on EAD.  Only if you are approved, it will take on this application and that means that the 90-day deadline for processing the employment authorization document begins after the DHS grants deferral.

    No additional supporting documents are required for this specific form.  As long as you submit all the documents required for Form I821D, you are good.

    How to complete Form I-821D?

    The USCIS could not have devised a simpler form for is clearly a very complicated case.  While you can hire an attorney to apply for a work permit under the Deferred Action for Childhood Arrivals process but if you have a basic understanding of English, you can do this on your own.  I have reviewed the whole application and nothing really jumps out that is tricky but for the benefit of those who would like to see a sample completed Form I-821D, I am providing one.

    For the rest of you who are more confident about filling this on your own, here are only a few things that I thought you should pay attention to:
    1. In Part I, under US entry information, for question number 13, it would suffice to provide an estimated date or even month/year, in case you do not have the documentation to prove your illegal entry into the US or do not remember.
    2. Similarly for question #14, simply enter the name of the nearest town you are aware of, or even the state, in case you crossed the border.
    3. For question #15, the choices are overwhelming.  In case you underwent border inspection (in other words, you entered the US legally and were processed by an immigration officer) whatever documentation you have will specify what status you were when you were allowed.  For example, if you came as a tourist, you will choose B2.  The most complicated is if you entered the country illegally by crossing the border, and in that case you will choose EWI - Entry Without Inspection, as shown below.
    Image of form I-821 about illegal entry into the US

    Can I get a work permit if I do not have the documents?

    If you have seen the list of eligibility requirements to get the work permit for deferred action under childhood arrivals process, it is complicated.  Most people did not expect that some day the US president will give an order like this and that would require documentation to prove entry into the country or presence for a certain period of time and such other qualifications.  That is why most of you might not have anything more than a birth certificate or passport in addition to documents about school attendance and such.

    USCIS is being very generous in allowing a wide range of documents to prove that you meet the requirements and in certain cases an affidavit might suffice but there are exceptions to that as well.  For example, in the following cases, an affidavit will simply not cut it:
    1. You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
    2. You were physically present in the United States on June 15, 2012;
    3. You came to the United States before reaching your 16th birthday;
    4. You were under the age of 31 on June 15, 2012; and
    5. Your criminal history, if applicable.
    So what can you do?  It seems that you are out of luck.  Your chance of taking advantage of this provision is gone, though, I would recommend that you consult with an attorney to see if something can be done.

    Will I be able to appeal if my work permit is denied?

    Due to the fact that prosecutorial discretion is so important in giving work permits to illegal young immigrants under the DACA Process, there will be cases where your application is rejected.  In many other immigration approvals by the USCIS, even visas in foreign countries, an applicant can appeal the decision by showing why s/he should be approved.

    Unfortunately, since this is not an immigration petition, there is no appeals process.  The only course of action left for you is to file another application, pay the $465 fee, and explain why you should be reconsidered (the rejection letter may explain the reasons).  An appeal will make sense if you think that the adjudicating officer (the decision maker) misunderstood something or that you did not provide credible evidence in your application or that something else went wrong.  That is why it is very important to get it right the first time when you file your application.  If you get rejected and unless it was a straightforward case (e.g. you did not conclusively prove that you were in the country on June 15, 2012 but you do have the evidence that you failed to provide) it is best to seek legal help before an appeal.

    What proof of immigration status to provide if I crossed the border?

    For applicants applying for a work permit under the deferred action for childhood arrivals program, in addition to prove that you entered the country illegally, you will also need to prove that you are out of status on June 15, 2012.  This is particularly tricky for those of you who were not inspected by a border agent (typical at an airport or land crossing) and simply walked across the border.  Since you will have neither a Form I-94/I-95/I-94W nor a final order of exclusion, deportation, or removal or a charging document placing you into removal proceedings because you were never really into placed into these proceedings, you will simply need to respond accepting that you simply crossed the border.

    How to prove that I entered the US illegally?

    In order to apply for a work permit under the Deferred Action for Child Arrivals process, you need to provide evidence that you entered the country before your 16th birthday.  This is fairly straightforward if you entered the United States legally (that is, after inspection by an immigration agent) because most likely you will have a stamp in your passport and Form I-94 would be attached to the page where the stamp was put.  Both of these are solid evidence of your entry into the country.

    However, if you have lost the passport and/or Form I-94 or you entered without inspection (you simply crossed the border illegally), it gets tricky.  You will now need to rely on other forms of evidence to demonstrate that you were in the United States.  For example, the USCIS is saying that evidence of your attending a high school or receiving medical treatment at a US hospital can be used instead.  Maybe you still have a copy of your itinerary from the airline that you boarded to enter the country.  These are some of the examples that can give you an idea about what to present as documentary evidence of your presence in the country.

    How to get a fee waiver for Deferred Action for Childhood Arrivals work permit?

    The fee to apply for an employment authorization document under the deferred action for childhood arrivals process is a whopping $465.  In case you wish to travel after the approval plan on paying an additional $360.  It is fair to say that putting together the documents, photocopying, shipping, etc. will raise the total cost.  If you are going to use an attorney to do the EAD paperwork, that can add up to hundreds of dollars as well.  You will also need to drive to USCIS offices once or twice and that means you will need transportation.  Do not be surprised that when you show up in a large city like Boston or San Francisco, even parking can easily cost you $40.

    My recommendation is that tap into your savings, borrow from a friend, or do what it takes, but try to come up with the money.  Yeah, it is a a lot of money, but you are going to get a work permit and your life will be so much easier.

    What if you simply don't have the money?  The USCIS will grant exemptions if you demonstrate that you are simply too poor.  Doing that is not going to be easy because you will either need to be homeless, or clearly prove through documents that you do not have the money. If that is the case, it is better to do the paperwork because the USCIS will first need to approve your application to file for free and only then you will be able to file Form I-821 D.  This simply means that you will face massive delays.

    Will I be able to travel overseas after getting work permit?

    Good news for the beneficiaries of work permits under the Deferred Action for Childhood Arrivals (DACA) process: once your case is approved and the work permit granted (meaning action deferred for two years on your case), you will be able to travel overseas.  What is very important for you to remember is to apply and receive the so-called advance parole beforehand from the USCIS.  Regarding travel, it is important to remember that you may still not be able to travel for leisure (vacations, visiting family members, etc.).  Permission for travel will only be granted if it is a business trip (in case your employer wants you to travel) or for education purposes (students traveling as part of their education) or for humanitarian reasons (think death of family members).

    Do not travel while your application is pending either for the work permit or for advance parole.  You also cannot apply for advanced parole together with your DACA application Form I-821D (other applicants for work permits are typically allowed to do so).  You will first need to be approved for deferred action and only then will you be able to apply for reentry into the United States.

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    If you are not familiar with the advance parole application system, briefly, you will complete USCIS form I-131, submit a fee of $360, and then just wait for the approval documents to arrive in the mail.  While there will not be a stamp in your passport, with these documents you will be able to board a plane headed for the United States by showing them at the check-in counter and to the immigration agents at the point of departure.  You will also show these documents to a US Border Patrol agent upon entry at the airport or on land.