Disclose detention without police record?

Andrea writes, "When I was 16 I was detained; I think the cops kept no record. But I'm still unsure of what to answer on part 3 question 1 (form I-821d).  Will the USCIS still see that incident, when they run a background check? Should I check yes or no?"

Generally speaking, if you are detained, a record will be kept.  If you are 100% confident that the police made no note of your conversation with the police, then it was probably not a detention.  Looks like you were not charged with a crime but there will still be a record in the local police's files.  It appears to me that you have nothing to fear, not for DACA, not for any other immigration benefit, but the best course of action would be to contact the police department and ask them for the documentation.  You can then truthfully answer what happened and attach the document, which will show that the police simply questioned you but you were neither fingerprinted nor photographed nor arrested nor charged with a crime.

In matters like this, the safest thing to do is to assume that the USCIS can find out anything and everything (it is not clear in you case what the cop did with the information because cops record everything and you just cannot be sure what will show up in your background search), because if you hide something, you are in a lot more trouble than honestly telling what you did.

What should I do if I am in the middle of a court trial?

Karen writes, "I was planning to send my application but I recently received a ticket for 'Open Container' and have to show up in the court to plead guilty and pay the fine of 25 dollar. My question is.. is this going to affect my application? On form I821D what should I answer for Part 3 question 1 (Have you ever been arrested for, charged with, or convicted a felony or misdemeanor in the US?).  I'm afraid that if I answer yes, they will not approve my application. Should I include copy of the ticket and write an explanation?  I received a ticket while sitting on the beach with my friends, one of them had an open can of beer, and all of us received a ticket. It's not like I committed a crime but I have to go to criminal court to pay it and plead guilty.  Please help."

Don't ever even think about lying to the government agencies, particularly the USCIS, because as an illegal immigrant you have no right to anything, so if they suspect that you lied, you will get into a lot of trouble.  And with something like a ticket that will show up in a few clicks during your background check, it will be an easy case to reject.  So answer yes and attach all the paperwork that you have now.  Ideally, you should wait till the case is decided so that you can then send all the paperwork.  If possible bring $25 with you and pay it right then and there and try to mail the application that day itself, so prepare it ahead of time.  Since this was only a misdemeanor, and assuming that this is the only one on your record, it will not affect your application.  And by the way, as bad as you might feel, sometimes just being in the company of bad people is a crime, so hopefully you will learn a very important lesson that if you are in the company of someone breaking the law, chances are you too will be considered as an accomplice.  Alternatively, you could also hire an attorney to plead your case and not plead guilty, so if you are acquitted, your record will be clean.  Maybe you do have a case that you did not drink even a sip and maybe you can produce witnesses or people can testify that you don't even drink alcohol.

DACA denials and rejections

As I pointed out that while USCIS has been very liberal and generous in issuing DACA approvals, statistics released by the government show that for each five DREAMers approved, two are either being denied or asked to provide additional evidence (RFE).  According to the data, as of last week, approximately 180,000 applicants submitted their applications, of which about 4,500 have been approved.  About two thousand of these people will either be sent out a "Notice of Intent to Deny" form, which is a formal way to reject an application, unless the applicant can provide compelling evidence to prove the prosecutor wrong, or a RFE in which the applicant may be approved if she or he can provide the missing documents to make a case.

Why are people being rejected for DACA?  At this point, the data isn't there, but based on how USCIS works, it can be deduced that these people were simply not eligible or that they hid something from the government that was found out during a background check or that they were considered a threat to national security.  Unfortunately, rejected applicants do not get a chance to re-apply, and while most of them will be left alone by the government for the time being, those who are considered as a national security threat may be targeted by law enforcement for deportation.

DACA approved for DREAMers using fake SSN

Exactly as USCIS had announced that working with fake Social Security number will not be held against a DREAMer insofar as approval for DACA is concerned, it can now be confirmed that the agency has issued deferrals on deportation and work permits to those who have confessed to doing so.  These are individuals who provided the false SS# on their application, and also included copies of their W-2 forms and/or letters from employers that they worked there.  It does not mean that there may not be consequences of identity theft in future immigration applications.

Obviously, you should consult with an attorney your specific case to determine the next step for you, but it is clear that for the time being USCIS is recognizing that if it started punishing DREAMers for working illegally, only a very small number of minors will be eligible for DACA.  The conclusion is that if you meet the criteria, go ahead and apply.

How to transition from ITIN to valid SSN?

This is a followup post to how to transition from a fake to valid Social Security number.  Many DREAMers may have done something brilliant by using an ITIN in the meantime, though, it was still illegal to use this number to work.  While the long term consequences of this sort of fraud by DREAMers is not known, after you are approved for DACA, given a work permit, and receive a valid for employment Social Security number, it is time to tell the Internal Revenue Service (IRS) about it.

According to the IRS, you should stop using the ITIN (you should also contact other financial institutions about this change) and use only the SS# going forward (even after your work permit expires, you should use this number for filing taxes, though, legally you should stop working after the date of expiration).  Using both numbers just messes up everything and will come to haunt you later.  The process to switch is simple.  I recommend visiting a local IRS office and doing it in person, but if that is not possible, write a letter to Internal Revenue Service, Austin, TX 73301-0057 explaining the change, along with a copy of your SS card and if you still have it, CP 565, Notice of ITIN Assignment.  If not, make sure that you write in the letter your ITIN correctly.

Mitt Romney to stop DACA program if elected president

GOP presidential candidate Mitt Romney has flip-flopped yet again.  After announcing that the DACA program approvals for deferral of deportations and work permits will be valid under a Romney administration, he has reversed course.  He has now announced that while approvals and work permits already issued will be valid, the program will stop on his first day in office on January 20, 2013.  Romney clarified that he does not plan to deport DREAMer applicants who are otherwise eligible under the Obama program.  At this no one knows what Romney will do as far as dealing with undocumented immigrants has concerned.

What are the implications of this announcement? If you are eligible for DACA, you should apply immediately, and hope that the approvals will come before Romney arrives in the White House.  At this point there is a lot more clarity about the future.  Chances are extremely high that President Obama will be reelected and all this will become irrelevant, but since we don't know the future, it is better to be safe, and try to get a work permit right away.  Due to high volume of applications in September 2012, the process of approvals has already slowed.

What are long term implications of working with a fake SSN?

Karen writes, "I am in the process of applying for Deferred Action. I am currently using a fake Social Security number that I made up to work at a small retail store.  I had to do what I had to do like many other immigrants. My question is, will USCIS find out that I was or am employed under a false Social Security number?"

USCIS using Don't Ask Don't Tell for using false papers to work:  First of all, USCIS does not require you to list a SSN that was not issued to you.  So right now, even for you, there will be no problem getting approved as long as you meet all the requirements and provide a completed application with all the evidence.

US Government has the means and technology to catch identity theft:  The second issue that you raise is whether the US government can find out what you did at a later stage.  As you are well aware, depending on the specifics of each case, using a false SSN and working without authorization in the US are both serious federal crimes and can often result in denial of immigration benefits (even retroactively), like adjustment of status and naturalization.  Obviously a lot depends on what your employer did with your information.  If they followed the law and provided that information to government agencies then that information has propagated through various databases and will probably stay there forever.  Also, if you filed taxes with that number using your real name and address, you have created a huge paper trail in the system.  In any case, with technologies available today, it is safe to assume that the government can find out almost everything about us if it wants to, often with just a few clicks.  And finally, by law you are required to tell the truth and admit to disclosing how you had income and what you did.

No guidance on negative implications of working without authorization:  At this time the US Government has only announced that using a false SSN is not a barrier to deferral of deportation but it is not an immunity from future prosecution and/or denial of adjustment of status under DREAM Act or after marriage to a US citizen (good moral conduct is a very important condition for naturalization and this may pose problems if you were to ever consider becoming a US citizen).  Having said that, Congress may write laws in the future in such a way that this can be forgiven because so many illegal immigrants are doing it, but at this point no one knows what will happen. 

DREAMer work permit to be valid under Romney presidency

Romney will honor Obama DREAMer work permits:  (Update:  Romney will honor only issued work permits but will kill the DACA program) I had written earlier what DREAMers may expect from a president Mitt Romney and not many more details yet from a campaign that has been short on details on policy in general (didn't some Republicans claim that Paul Ryan was a policy wonk and all he liked were numbers and specific?), but he is now promising that deferrals on deportations for childhood arrivals and work permits issued under the DACA program will not be revoked.  It is important to note that he has not mentioned anything at all whether the program will be renewed under his administration.  He vaguely mentioned to the Denver Post that he will propose comprehensive immigration reform but one can guess what he has in mind: legal immigration and some kind of amnesty only for those who have served in the military.

DREAMers are not purchasing work permits:  Like many in the GOP who often disparage undocumented immigrants, Romney made yet another gaffe -- after dying his skin brown to appeal to Hispanics in Florida -- by saying that, "I'm not going to take something that they've purchased."  To the best of my knowledge, DACA work permits are not for sale and you cannot just go out there and purchase them (the way one can purchase a fake Social Security or green card).  Department of Homeland Security (DHS) and USCIS have a complex process to issue these deferrals and work permits only to those individuals who meet a strict criteria and are able to provide evidence to support their claim.
Work permits are not visas:  Gov. Romney made yet another gaffe in calling the deferral a visa. Maybe he just used the word interchangeably but in the context of law this has huge implications.  DACA approvals are work permit do not change the unlawful status of DREAMers.

So what are the implications of Romney's change in stance on immigration?  Many DREAMers who are wondering whether their work permits would be taken away in case President Obama were not to be reelected and the information that they provide during the application process would be used to deport them and their families can now go ahead and apply.  In any case, it is clear at this point that Romney is not going to be president and Barack Obama will be reelected.  There is still a doubt, though.  Can Romney shut down the program on day one and only let those applicants keep their permits who have been approved?  Yet another confusion from him.

How to transition from fake to valid SSN?

While no one is immune from prosecution for Social Security number related identity theft and fraud, as far as DACA is concerned USCIS has decided to ignore use of fake or stolen SSN, and has granted work permits.  Based on the I-821D approvals, Social Security Administration has issued valid for employment legitimate SS#.  If you have never worked or did odd jobs here and there and got paid under the table without any paperwork, it is easy to start working with a new number and EAD.  On the other hand, DREAMers who have worked with fake or stolen SSN (or used an ITIN as a SS#) and have a paper trail with the employer and the IRS, they have a huge problem to deal with.

Best option:  Quit your current job and start with a new employer using your valid documents.

Your employer is not law-abiding:  Many employers knowingly and deliberately hired undocumented immigrants to pay them lower wages or help out individuals from their community or wanted to avoid paying Uncle Sam or some other reason.  If you currently work for such an employer, your employer probably knows what is going on, and chances are that you might be able to easily transition from the invalid to valid number because the employer will simply input the new information (assuming s/he does not let you go because as a legal worker you will now demand fair wages and he maybe forced to pay Social Security and Medicare taxes to the IRS).

Your employer is law-abiding:  If you used fake papers to find work, you simply cannot go to the Accounting department and simply ask for a Social Security Number change form (ha ha ha, no such form exists because these numbers cannot be changed).  While a kind employer might simply fire you or ask you to leave employment immediately, some employers may actually notify law enforcement.  Many companies will doubt your moral conduct for lying about your immigration status and may deal with it accordingly, most likely by asking you to resign.  The right thing to do is to leave this work and find a new employer.

Combination of legal and illegal stay for DACA work permit

Rosie writes, "I'm trying to apply for DACA and was wondering if my two-week absence from the U.S. in July 2007 would disqualify me.  I entered the U.S. without inspection when I was 12 and went to both middle and high school in the U.S. I graduated from high school in June 2007, but I was still undocumented then. In July 2007, I left the U.S. for my home country for 2 weeks to visit family and get an F1 student visa and come back to the U.S. legally for college and get a legit SSN. So during those 2 weeks while I was absent from the U.S., I went to the U.S. embassy and got an F1 visa (everything had already been planned before I left the U.S., so I just needed to show up at the embassy in my home country and get the visa). I came back to the U.S. on F1 visa on August 1, 2007 and have graduated from college.  So basically, I was undocumented from 1999 to July 2007, then legal from August 1, 2007 to June 14, 2012. My F1 visa expired on June 14, 2012. I have been out-of-status since then.  I have not left the U.S. since August 1, 2007.  My question is, would that 2-week absence back in July 2007 be considered "brief, casual, and innocent absences from the United States"? Would a change in visa status disqualify me?"

USCIS is being very generous in approving DACA cases:  Your situation is interesting and if one were to read the USCIS DACA guidelines literally, your absence was brief but definitely neither casual nor innocent.  You deliberately left the country with a very specific mission and there is evidence of your intention in form of a visa in the system.  Now if your application were to land on the desk of an officer who was really strict about the interpretation of the requirement, you could be disqualified.  My guess, though, is that the USCIS is trying to help as many people as it can and the worst that can happen to you is that your application will be rejected, but it is a risk worth taking.  I would say that you should speak to an attorney and get solid legal advice on this matter but you really have nothing to lose by applying.  I would say that you should honestly answer all questions and just hope that they will consider your case with kindness, that, you were trying to do the best you could to be legal in the country.  I am optimistic that you will be approved, though, I am a little concerned that if you told the whole truth when getting your student visa, considering that you were already in the US illegally before applying.  If that is a problem, it could come to bite you later, but not this time, because you have much more honorable history than many other DREAMers.

You should provide the details on the I-94 you have because it is already in the system.  Though, from item 13-15, you should list your initial EWI entry in 1999 and treat the 2007 visit as an absence of two weeks for which you do have a I-94 and entered the country with inspection. Then in part 2 later on, you should include your absence details and explain that you "went to get a F-1 visa."  The idea behind this approach is that all this time you were basically a resident in the country and merely left for two weeks to try to legalize your status.