California Immigration Lawyer Blog

I previously wrote a post on the Department of State's Social networking site promoting cultural exchange. Now the Department of Homeland Security is following with their social networking site called, "Our Border." The purpose of the site is to facilitate conversation between people and groups interested in issues surrounding the southwest border. Groups that are established on the site include: Citizenship and Immigration Services ("CIS"), Customs and Border Protection ("CBP"), Immigration and Customs Enforcement ("ICE") and Comprehensive Immigration Reform. It is interesting that on the DHS social networking site, the Comprehensive Immigration Reform group has the most members.

Every day the site will feature a video from the DHS' Youtube channel. (Look how far DHS has come!) Users can also post their own videos or posts. There are currently over 290 members of the networking site.

As a San Francisco bay area immigration attorney, I was kind of skeptical at first about a social networking site on border issues, but at looking at the posts, I have changed my mind. There appears to be some interesting discussion from a variety of people about border issues. There are also some good links to news stories on immigration topics. I joined the site and hope that it really will be a tool for open discussion. I will report back.

On August 18, 2009, San Francisco county supervisor, David Campos, introduced legislation, "Confidentiality of juveniles' immigration status," which would permit San Francisco authorities to turn over youths to the Department of Homeland Security only if the youths are convicted of a felony. This is a change in the current law which requires the immigration authorities to be contacted when a youth is arrested for a felony.

Supporters of the proposed legislation like it because they view the current law as drastic. Currently If the Department of Homeland Security is alerted to all felony arrests and finds someone here illegally, they will take action to remove that person from the United States. Under the proposed law, fewer youths are likely to be turned over to the Department of Homeland Security because there will not be as many youths convicted of a felony.

Opponents of the proposed legislation state that it conflicts with federal law and that it would open up the City of San Francisco to legal challenges if it passes.

You may read more about the law in the San Francisco Chronicle article, "New Sanctuary Proposal protecting youths."

I usually spend some time every day at my San Francisco Bay Area immigration law office making inquires on pending cases. It is a frustrating process because I rarely receive answers and when I do, they usually are not helpful.

United States Citizenship and Immigration Services ("USCIS") has recently released guidance on how to make inquiries at their Service Centers. They provide a three step process. The first step is to call their National Customer Service Center at 1-800-375-5283. If the issue is not resolved in 30 days, you proceed on to the next step which is to email the USCIS Service Center where your case is pending. The email addresses are:

If there is no response to the email, you proceed to the last step which is to notify the USCIS Headquarters office of Service Center Operations by email at SCOPSSCATA@dhs.gov. The notice indicates that you will receive a response from this email within ten days.

It remains to be seen whether this system actually works. I will try it out in a few cases and will report back what happens.

Yesterday, San Francisco's newest police chief, George Gascon was sworn into office. With only one day in office he already recognizes that immigration enforcement is a controversial issue in San Francisco.

In a news story reported by KCBS, Chief Gascon indicated that he is opposed to immigration raids. He does not believe that the local police should be doing immigration work. While agreeing that undocumented individuals need to follow the same rules as everyone else, he stated that in order for local authorities to be effective, they need to work closely in the community. They cannot be effective if community members will not talk to the police because they are afraid of being deported.

I recently received an inquiry at my San Francisco immigration law office from an "employer" who recently discovered that a person whom he had hired as an independent contractor was in the United States illegally. The employer had not originally known that the "employee" was illegal because independent contractors are exempt from the requirements of the Immigration Reform and Control Act (*IRCA*) that require an employer to verify that an an employee is authorized to work in the United States. The "employer" wanted to explore the options of legalizing the contractor. While thinking about the options, I became interested in how the law defines an independent contractor.

According to 8 Code of Federal Regulations Section 274a.1(j) an independent contractor is an individual or entity who carries on an independent business, contracts to do a piece of work according to their own means and methods, and are subject to control only as to results.

The decision of whether or not someone is an independent contractor is determined on a case-by-case basis. Factors to be considered include whether the individual or entity:

• supplies the tools or materials;
• makes services available to the general public;
• works for a number of clients at the same time;
• has an opportunity for profit or loss as a result of labor or services provided;
• invests in the facilities for work;
• directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done.

I began to wonder if people used independent contractors to get around the IRCA requirements. Apparently Congress thought about that as there is a regulation which states that an "employer" may not avoid the requirements of IRCA by hiring an independent contractor if a person or entity knowingly uses a contract or subcontract to obtain labor or services of an unauthorized alien. 8 C.F.R. §274a.5.

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