Looks like we now have some clarity from the Department of Justice (Civil Rights Division - Office of Special Counsel for Immigration Related Unfair Employment Practices) on how to accomplish this without causing problems for the employer or the DREAMer. According to this guideline, when an individual presents a valid Social Security card along with valid employment authorization card (EAD) after having used fraudulent paperwork in the past like SS card, green card, birth certificate, etc. to prove that she or he was either a US citizen or permanent resident or legally in the country allowed to work, the only responsibility of the employer is to ask the employee to complete a new I-9 form. It would be good idea for the employer to keep the fraudulent documents along with valid documents in the employee file just in case legal trouble arises ahead. The employer may also issue two separate W-2 forms for the year in which the change happened since some FICA payments might have already been made (and let the employee deal with the mess of filing taxes using two identities). As long as the employer does this, they are legally protected. Basically, the DOJ is recommending a "look the other way" policy, because the advice to employers is that they need not report the crime to law enforcement or fire the employee for lying on an employment application and committing fraud (always consult an attorney before firing for this specific act because the DREAMer could complain to the Feds and put you in trouble). It appears that in this new process both the employer and employee are protected from prosecution.
Steps to follow from fake SSN to genuine EAD
Transitioning from an ITIN to a valid Social Security number is a straightforward process (particularly if you did not use the ITIN to work illegally in the United States), but moving from a fraudulent or stolen SS# to a genuine number is a lot less smooth. Technically, Social Security numbers are for life and never really changed, so it is not really a good excuse to present to an employer when you are approved for DACA. This happens because there really is no process for undocumented aliens who were working without authorization using a fake number to then change their number without changing jobs (and that too is a huge challenge because their credit histories and employment histories are tied to a number that belongs to someone else). The most complicated cases are those in which an alien assumed the identity of an American or legal resident and now has a valid number.
Looks like we now have some clarity from the Department of Justice (Civil Rights Division - Office of Special Counsel for Immigration Related Unfair Employment Practices) on how to accomplish this without causing problems for the employer or the DREAMer. According to this guideline, when an individual presents a valid Social Security card along with valid employment authorization card (EAD) after having used fraudulent paperwork in the past like SS card, green card, birth certificate, etc. to prove that she or he was either a US citizen or permanent resident or legally in the country allowed to work, the only responsibility of the employer is to ask the employee to complete a new I-9 form. It would be good idea for the employer to keep the fraudulent documents along with valid documents in the employee file just in case legal trouble arises ahead. The employer may also issue two separate W-2 forms for the year in which the change happened since some FICA payments might have already been made (and let the employee deal with the mess of filing taxes using two identities). As long as the employer does this, they are legally protected. Basically, the DOJ is recommending a "look the other way" policy, because the advice to employers is that they need not report the crime to law enforcement or fire the employee for lying on an employment application and committing fraud (always consult an attorney before firing for this specific act because the DREAMer could complain to the Feds and put you in trouble). It appears that in this new process both the employer and employee are protected from prosecution.
Looks like we now have some clarity from the Department of Justice (Civil Rights Division - Office of Special Counsel for Immigration Related Unfair Employment Practices) on how to accomplish this without causing problems for the employer or the DREAMer. According to this guideline, when an individual presents a valid Social Security card along with valid employment authorization card (EAD) after having used fraudulent paperwork in the past like SS card, green card, birth certificate, etc. to prove that she or he was either a US citizen or permanent resident or legally in the country allowed to work, the only responsibility of the employer is to ask the employee to complete a new I-9 form. It would be good idea for the employer to keep the fraudulent documents along with valid documents in the employee file just in case legal trouble arises ahead. The employer may also issue two separate W-2 forms for the year in which the change happened since some FICA payments might have already been made (and let the employee deal with the mess of filing taxes using two identities). As long as the employer does this, they are legally protected. Basically, the DOJ is recommending a "look the other way" policy, because the advice to employers is that they need not report the crime to law enforcement or fire the employee for lying on an employment application and committing fraud (always consult an attorney before firing for this specific act because the DREAMer could complain to the Feds and put you in trouble). It appears that in this new process both the employer and employee are protected from prosecution.
Health insurance for DACA approved DREAMers
If you are a DACA approved DREAMer who has a job your best option is to seek health insurance through your employer. Since despite having DACA approval, these DREAMers are still illegally in the country, they are not eligible for ObamaCare. At this time, all states except California do not allow this group of DREAMers to take advantage of any government health insurance programs that cover low income citizens and legal residents. The simple reasoning is that government funded programs should be reserved exclusively for US citizens and to a smaller extent to legal residents. Thankfully, the State of California is cementing its reputation as a friendly state for undocumented aliens by extending provisions like in state tuition, right to practice law, and low cost, subsidized health insurance coverage under Medi-Cal. Obviously, it seems that a loophole exists for you to exploit right now but always consult with an attorney if you should apply because as awesome as it might sound to get health insurance for free or cheap, it might come to bite you at a later time.
How does USCIS process criminal DREAMers?
For fastest processing of any immigration petition, the best situation to be in is one with zero criminal past. It does not matter if you were convicted or falsely accused or happened to be in the wrong place at the wrong time, unfortunately, arrests and detentions are ALWAYS visible to the United States Government agencies (even if they are expunged from your public record). In other words, if you are not a native born citizen, DO NOT break the law, ever. Or at least, till you take the oath of a naturalized citizen.
Now, the DACA program is very lenient on DREAMers with criminal past (as many as three non-significant misdemeanors are allowed; crimes committed before you were 18 are often overlooked as long as they are not national security concerns) but as soon as you start to admit that you indeed have broken the law, the application is treated a lot differently. Needless to add that if you have committed a felony or a significant misdemeanor, the application is rejected right away, but with non-significant misdemeanors, the process gets cumbersome and convoluted as the officer tries to find out each and every detail about the case. The task is handed over to the Background Check Unit (BCU) for resolution/adjudication. The officer forwards the application based on information obtained from IDENT (Automatic Biometric Identification System run by US-VISIT). This is a massive database maintained by United States Department of Homeland Security (DHS) and contains fingerprints (often called the FD 258) of as many aliens as it encounters.
TECS name check: This is a check done on any alien over the age of 14. It is primarily a name based search of databases maintained by dozens of government agencies. An officer with just a few clicks can find names of suspected terrorists, gang members, criminals, individuals with warrants issued against them, sex offenders, and people who maybe considered as risks to public safety or national security. If your name pops up, you will be processed by BCU causing delays and complications depending on what crime you have committed. In addition, your name will be added to what is known as the Interagency Border Inspection Services (IBIS) Manifest. A copy of this information (also called ROIQ or record of IBIS query) is also added to your so-called Alien or A file. In other words, this information will be ALWAYS available to the USCIS for all your future applications.
CIS 9101 and CIS 9202 checks: This is another system check that the agent will do. The CIS is the Central Index System in National Systems. In other words, it is a depository of the A# that is assigned to an immigrant and is used as an identifier throughout the immigration process. The idea behind the CIS searches is to find an A file for you making sure that one person does not have more than one file, and if there are, they should be reconciled and merged. This makes sure that immigrants cannot use another name or identity to access immigration benefits. So CIS9101 is a search of this database by entering a passport number, SSN or A# and do an ID search. CIS9202 is conducted if an alias is found.
CLAIMS other filings/biometrics: This is the so-called computer linked application information management system (CLAIMS) using which the officer wants to make absolutely sure that there are no additional applications, and if there are, he is aware of them (e.g. you can have a petition filed based on marriage to a citizen) and every single piece of information is one place.
RAP sheets: This is a record of arrest and prosecution (RAP) so if you were ever arrested and prosecuted, this information is available to the agent and is used in deciding your case. A copy is also added to your A file for future reference. This information along with court documents related to the cases maybe reviewed and depending on her judgment, you maybe declared as a public safety or national security risk. This will not only trigger a denial of the application but the information will be shared with other agencies for proper action like arrest and deportation.
CARRP protocol: This is the so-called Controlled Application Review and Resolution Program run by the FBI under which aliens who maybe Muslims or come from countries typically associated with terrorists, for example, Pakistan, Somalia, or Yemen, are screened more carefully. It does not mean that your application will be denied -- as is the case with thousands of Muslims being approved for DACA -- but delays are more likely.
Now, the DACA program is very lenient on DREAMers with criminal past (as many as three non-significant misdemeanors are allowed; crimes committed before you were 18 are often overlooked as long as they are not national security concerns) but as soon as you start to admit that you indeed have broken the law, the application is treated a lot differently. Needless to add that if you have committed a felony or a significant misdemeanor, the application is rejected right away, but with non-significant misdemeanors, the process gets cumbersome and convoluted as the officer tries to find out each and every detail about the case. The task is handed over to the Background Check Unit (BCU) for resolution/adjudication. The officer forwards the application based on information obtained from IDENT (Automatic Biometric Identification System run by US-VISIT). This is a massive database maintained by United States Department of Homeland Security (DHS) and contains fingerprints (often called the FD 258) of as many aliens as it encounters.
TECS name check: This is a check done on any alien over the age of 14. It is primarily a name based search of databases maintained by dozens of government agencies. An officer with just a few clicks can find names of suspected terrorists, gang members, criminals, individuals with warrants issued against them, sex offenders, and people who maybe considered as risks to public safety or national security. If your name pops up, you will be processed by BCU causing delays and complications depending on what crime you have committed. In addition, your name will be added to what is known as the Interagency Border Inspection Services (IBIS) Manifest. A copy of this information (also called ROIQ or record of IBIS query) is also added to your so-called Alien or A file. In other words, this information will be ALWAYS available to the USCIS for all your future applications.
CIS 9101 and CIS 9202 checks: This is another system check that the agent will do. The CIS is the Central Index System in National Systems. In other words, it is a depository of the A# that is assigned to an immigrant and is used as an identifier throughout the immigration process. The idea behind the CIS searches is to find an A file for you making sure that one person does not have more than one file, and if there are, they should be reconciled and merged. This makes sure that immigrants cannot use another name or identity to access immigration benefits. So CIS9101 is a search of this database by entering a passport number, SSN or A# and do an ID search. CIS9202 is conducted if an alias is found.
CLAIMS other filings/biometrics: This is the so-called computer linked application information management system (CLAIMS) using which the officer wants to make absolutely sure that there are no additional applications, and if there are, he is aware of them (e.g. you can have a petition filed based on marriage to a citizen) and every single piece of information is one place.
RAP sheets: This is a record of arrest and prosecution (RAP) so if you were ever arrested and prosecuted, this information is available to the agent and is used in deciding your case. A copy is also added to your A file for future reference. This information along with court documents related to the cases maybe reviewed and depending on her judgment, you maybe declared as a public safety or national security risk. This will not only trigger a denial of the application but the information will be shared with other agencies for proper action like arrest and deportation.
CARRP protocol: This is the so-called Controlled Application Review and Resolution Program run by the FBI under which aliens who maybe Muslims or come from countries typically associated with terrorists, for example, Pakistan, Somalia, or Yemen, are screened more carefully. It does not mean that your application will be denied -- as is the case with thousands of Muslims being approved for DACA -- but delays are more likely.
How does USCIS treat homeschooled DREAMers?
US citizens and legal aliens can typically homeschool their children without any questions, but most sane people are very skeptical of the rapidly exploding homeschooling movement. It is widely known that many parents who assume the role of teachers aren't really educated themselves and rarely educated in the skills needed to teach children. They often teach their children nonsense and fail to teach them the basics to survive in the real world. In fact, many parents are committing outright fraud on taxpayers by demanding vouchers that they can blow on vacations and parties.
It is no surprise then that the USCIS is very skeptical of homeschooling of DREAMers. First of all, it is very likely that parents who failed to enroll their children in the American school system are using homeschooling as a coverup; it definitely does not help that illegal immigrants have a reputation for fraud and lies. Secondly, it is likely that the alien might have secured vouchers and that would be a crime as well. And finally, the USCIS wants to make sure that the DREAMer has basic education equivalent to other residents in the country. So what the agency does is that as soon as a DREAMer claims in her or his DACA application that s/he has been homeschooled, the information is passed on to the Center Fraud Detection Office (CFDO) to start an investigation. Only if the CFDO is convinced that there was no fraud and the DREAMer is genuinely being taught at home by capable parents, the application moves forward. This means that many DACA applications will be delayed due to the lengthy fraud investigation.
It is no surprise then that the USCIS is very skeptical of homeschooling of DREAMers. First of all, it is very likely that parents who failed to enroll their children in the American school system are using homeschooling as a coverup; it definitely does not help that illegal immigrants have a reputation for fraud and lies. Secondly, it is likely that the alien might have secured vouchers and that would be a crime as well. And finally, the USCIS wants to make sure that the DREAMer has basic education equivalent to other residents in the country. So what the agency does is that as soon as a DREAMer claims in her or his DACA application that s/he has been homeschooled, the information is passed on to the Center Fraud Detection Office (CFDO) to start an investigation. Only if the CFDO is convinced that there was no fraud and the DREAMer is genuinely being taught at home by capable parents, the application moves forward. This means that many DACA applications will be delayed due to the lengthy fraud investigation.
Foreign visa for DACA approved DREAMers with advanced parole
Visiting your native country with advanced parole is a pretty routine affair and dozens of DACA approved DREAMers have been able to leave and reenter the United States without any problem. However, many of you are being asked to take business trips to other countries (some of you are also taking personal trips to foreign countries because your family is there) and some of them require you to first obtain a visa. So the question I get asked a lot is if you can get a visa to another country using just your AP documents.
Visas to other countries in the USA are typically issued only to legal residents: It is important to understand that most countries insist that you apply for a visa from your native country unless you can prove that you live legally in the United States. Some countries are slightly more liberal in the sense that if you entered the United States legally and still have valid legal status, they may accept and approve your application, but denials are quite common as well. For instance, visas to Canada and Mexico are easier if you are already in the US because it can be construed that you decided to travel to these countries only after your arrival to the US as a visitor (a more difficult case to make if you want to apply for a visa to Australia).
AP document is Unfortunately, despite the fact that DACA approved DREAMers are still illegally in the United States, having an advanced parole document is enough evidence that you will be able to enter the country legally. Accordingly, most countries will recognize an advanced parole document as proof of being legally in the US and will honor it for visa purposes even if it is not explicitly listed on their website (the reason being that the number of aliens without legal status in the US who are allowed to travel on an AP is extremely small and includes people with asylum cases or special cases like DACA -- people who are going through an adjustments of status or AOS have legal status even though they may no longer have a valid visa in their passports). So if you wish, you can contact the embassy to clarify (most embassies rarely respond to phone calls or emails, though) but go ahead and apply anyway (make sure you attach evidence of your ties to the US in form of a letter from your employer, paystubs, bank account statements, etc.), unless the website clearly states that aliens with AP are ineligible. And finally, remember that a visa is a privilege and not a right. Even if you think you are eligible and have submitted all documents, a country can deny a visa without assigning any reason, and in case you did not know this, your visa application fee will not be refunded.
Visas to other countries in the USA are typically issued only to legal residents: It is important to understand that most countries insist that you apply for a visa from your native country unless you can prove that you live legally in the United States. Some countries are slightly more liberal in the sense that if you entered the United States legally and still have valid legal status, they may accept and approve your application, but denials are quite common as well. For instance, visas to Canada and Mexico are easier if you are already in the US because it can be construed that you decided to travel to these countries only after your arrival to the US as a visitor (a more difficult case to make if you want to apply for a visa to Australia).
AP document is Unfortunately, despite the fact that DACA approved DREAMers are still illegally in the United States, having an advanced parole document is enough evidence that you will be able to enter the country legally. Accordingly, most countries will recognize an advanced parole document as proof of being legally in the US and will honor it for visa purposes even if it is not explicitly listed on their website (the reason being that the number of aliens without legal status in the US who are allowed to travel on an AP is extremely small and includes people with asylum cases or special cases like DACA -- people who are going through an adjustments of status or AOS have legal status even though they may no longer have a valid visa in their passports). So if you wish, you can contact the embassy to clarify (most embassies rarely respond to phone calls or emails, though) but go ahead and apply anyway (make sure you attach evidence of your ties to the US in form of a letter from your employer, paystubs, bank account statements, etc.), unless the website clearly states that aliens with AP are ineligible. And finally, remember that a visa is a privilege and not a right. Even if you think you are eligible and have submitted all documents, a country can deny a visa without assigning any reason, and in case you did not know this, your visa application fee will not be refunded.
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