“Legal Implications of Living Together”

アメリカ 弁護士 法律事務所 法律 同居の法的意義

If you are unmarried and live with a significant other, you are by no means alone. Increasing numbers of couples are choosing to live together without being formally married. Generally referred to in the law as “cohabitating,” the popularity of this living arrangement has many causes: the desire of many young people to marry later in life, high housing costs, and an increasingly broad social acceptance of such arrangements. Whatever the reason, if you have chosen to cohabitate, your decision has important legal implications.
Even though you may be very close to your partner, if you aren’t married, legally you aren’t family. There are many rights associated with marriage that aren’t extended to cohabitations. These include property settlements if the relationship ends, the opportunity to file joint tax returns, the right to receive certain government benefits owed to your partner (Social Security for example), and an automatic right to health and life insurance policies. Some of these rights can be acquired through affirmative actions, such as making your partner the beneficiary of your insurance policy. However, it is important to remember that legally you are otherwise strangers.
If you currently cohabitate or are considering it, you and your partner should talk about a cohabitation agreement. These are similar to prenuptial agreements in that they outline what will happen if the relationship ends, including the division of property, how debts will be split, and any support obligations. Cohabitation agreements should also summarize what will happen to the couple’s property upon the death of one partner and create a health care proxy or medical directive. Either clause allows you or your partner to make medical decisions on behalf of the other should it become needed.
Since family law does not regulate cohabitation agreements like it does marriage and prenuptial agreements, there is some flexibility in drafting. You should be able to tailor the agreement according to your own circumstances. Cohabitation agreements are enforced through general contract law, and as such, you and your partner should work with an attorney to draft an agreement that is both legally valid and a fair reflection of your desires.
If you and your partner plan to live together for an extended period of time, be aware that some state statutes allow for “common law marriages.” Common law marriage allows a heterosexual couple to be considered married in the eyes of the law without the formal steps. Only a minority of states recognize common law marriage today. If your state is one of these, you should speak with your attorney, especially if you are not interested in establishing common law status. Because common law marriage can be implied from your conduct, if you don’t want to be considered married, your attorney should draft an agreement explicitly stating that you and your partner are living together as unmarried cohabitants. If, on the other hand, you are interested in establishing a common law marriage, there are steps you will likely need to take: you must affirmatively agree to common law marriage, hold yourself out as married, and live together for an extended period of time (length varies between states). A valid common law marriage will create the same rights and obligations as an official marriage, without requiring the formal steps.
Cohabitation is becoming a common step in the modern dating process, and in some cases, an alternative to marriage. However, planning for your cohabitation doesn’t end after the boxes are all unpacked. Being aware of the law, and working with your partner and, when appropriate, your attorney, will ensure that both you and your partner are protected and don’t hit any legal road bumps.

(Fall 2007)

“Home Foreclosures: Know Your Rights”

アメリカ 弁護士 法律事務所 法律 サブプライムローンの現実:家屋が差押えられた際の権利

Foreclosures are big news these days. Between sub-prime mortgages falling apart and the stalling housing market, you could be forgiven for thinking most homeowners are on the verge of foreclosure. Although this is clearly not the case, if you are one of the unfortunate homeowners teetering on the edge of foreclosure, or against whom foreclosure proceedings have already begun, you should be aware of some important rights and responsibilities.
A foreclosure is a legal action in which a lender takes ownership of the property used to secure a loan because the owner failed to make required payments. Foreclosures can happen quickly. Although traditional foreclosures involve court supervision, not all foreclosures require court orders. Depending on your state and the original terms of your loan agreement, a foreclosure can be completed in 45 days or less. Still, if you are currently going through foreclosure, don’t panic. Although this is a very stressful and serious situation, you do have options, and being pro-active is in your best interest. In fact, if the foreclosure is still in its early stages, it is likely that your lender would prefer to work things out with you and not foreclose.
Be Informed
When you first receive notice of a foreclosure action, there are some important steps to take. First, identify the parties involved. Today, most mortgages are sold and repackaged many times after the loan is first given. In some cases, the company that currently owns the loan won’t actually be the one with the authority to renegotiate or modify the loan.
This means that the company starting foreclosure proceedings against you isn’t actually the party you will work with. Although you may have originally worked with your local bank, your loan may now be owned by a larger company located in a different state. Knowing the parties should help prevent confusion and move the process along faster. It will also help protect against fraud. Once proceedings start, your name and address are public record, providing valuable information to individuals and corporations looking to prey on the vulnerable. Don’t assume that just because a letter arrives in your mailbox that it is from a reputable, reliable source.
You should familiarize yourself with relevant state and federal laws and the policies of your specific lender. The Federal Trade Commission’s website (www.ftc.gov-search “Foreclosures”) provides valuable information on how to find your state’s regulations and on avoiding foreclosure. Because states vary greatly with regard to timing and notice requirements, knowing the specific laws governing your state and lender can save time and headaches.
Assess Your Options
If you are about to miss a payment or if you have received a foreclosure notice, you aren’t out of options yet. You should contact the “loss management” department of your lender immediately. Depending on your situation and lender, you may be able to refinance or determine a “work-out” plan. Although you still owe money, this will prevent a foreclosure from appearing on your credit record and could save your home.
Get Help
If foreclosure is a realistic possibility for you, don’t run from the problem – confront it head on and get help. Help can come in various forms: credit and debt management advice from credit counselors, legal guidance from your attorneys, and sometimes even government action from state consumer protection agencies (if you think fraud or predatory lending has been involved).
As a homeowner you should be aware of your financial rights and responsibilities.
There are many steps involved in the home lending process; if you are interested in learning more about your options, be sure to contact your lender or work with your attorney. Although financial struggles create stressful times, do what you can to ensure that your rights, and in some cases your home, are protected.

(Fall 2007)

“Estate Planning Lets You Call the Shots”

アメリカ 弁護士 法律事務所 法律 相続は準備よければ全てよし

One of the best things you can do for your family is to plan your estate―now. You can work with your lawyer to create a will or trust that assures your family will be provided for if something happens to you. This article will give you some ideas on how you can be sure that your estate plan will carry out your wishes and distribute your property exactly as you want.
Statistics show that fewer than half of American adults have wills, and the percentages actually seem to have dropped in the past few years. If you’re one of the ones who hasn’t gotten around to it yet, you run the risk of dying intestate, which means that the state would step in to make the decisions that you didn’t make.

When the State Decides

State law specifies how your property is to be divided if you don’t have a will or trust. The specifics vary by state, but the principle is that the state will assume that you wanted a portion of your property to go to your spouse, a portion to your parents, and so on.
That may work if the state’s assumptions happen to match yours, but probably they don’t. Maybe you wanted to apportion the amounts differently, or give property to a nonrelative, or to a relative who is not in the immediate family (a favorite niece, for example). And maybe you wanted certain items―a car, a family heirloom, etc.―to go to certain people. None of this will happen if you don’t leave directions.
If you have minor children, your will can specify who is to be in charge of their upbringing. If you don’t have a will, a court will have to decide, and that not only complicates the process but opens up the possibility that they may be placed in the care of someone you wouldn’t have chosen.
Finally, if you don’t have a will or trust, you’ll probably complicate the whole process of probating your estate (paying debts and taxes, distributing bequests, and wrapping up your affairs). You open up the very real possibility of increased expense and delays in distributing your property, both of which could be harmful to your family.

When You Decide

There’s no set formula for what goes into a will or trust. You and your lawyer should discuss what works for your situation in planning your estate.
Here are some suggestions on how to handle the more common clauses of a basic will or trust, assuming that the trust contains all or most of your property. This list is far from complete, but it will help you begin to plan.

Gifts of Property

The core of most wills or trusts is the section where you specify which recipients are to receive your property. Be sure to carefully identify the recipients, including their addresses and relationship to you―the last thing you want is confusion about who is to receive a gift.
Be sure to anticipate changes that might take place between when you write the document and when it comes into effect. What if one of your beneficiaries dies before you? Do you want that person’s gift to go to his heirs, or to someone else you specify? Your will or trust can handle either alternative―but your lawyer has to know what your wishes are.
And try to anticipate any confusion that might occur because of how you describe the gifts you’re making. For example, if the specific item of property might change between the time you write the document and the time you die, you might want to be general in your phrasing. Don’t specify that you’re giving someone 500 shares of a particular stock (you may sell it before you die and buy something else) but rather “my stock portfolio,” or a specified percentage of it, or a dollar amount of the stock you own at death.
Remember also that your property may include intangible assets like insurance policies, bank accounts, certain employee benefits, and stock options. Some of these may pass outside of your will or trust, because of how they are held (i.e., if held in joint tenancy with right of survivorship, the property will pass automatically to the other owner on your death). Some may pass through beneficiary designations (i.e., employment benefits that go to your spouse). But some may pass through your will or trust. It’s important for you and your lawyer to have a complete list of all the property you own and coordinate how all of it is to be passed.
You can save on taxes by using gifts wisely. This section of your will or trust can be used to give gifts to institutions and charities as well as to people.

Gifts of Real Estate

Most people prefer that their spouses receive the family home. If it isn’t held in joint tenancy, you should have instructions about what will happen to it in your will or trust.
If you die before you’ve paid off the mortgage on your house, your estate will normally have to pay it off. If you’re afraid this will drain the estate, or if you want the recipient of the house to keep paying on the mortgage, you must specify that in your will or trust.

Executors/Trustees

Your will should designate an executor and a successor in case he or she is unable to serve. (Your trust should do the same regarding its trustee.) It helps to spell out certain powers the executor can have in dealing with your estate: to buy, lease, sell and mortgage real estate; to borrow and lend money; to exercise various tax options. Giving the executor this kind of flexibility can save months of delay and many dollars by allowing him or her to cope with unanticipated situations.

Testamentary Trusts

You can set up a trust in your will (a testamentary trust), or have your will direct funds from your estate into a trust you had previously established (your will would then be a pourover will). You would normally do so in a separate clause in your will.

Residuary Clauses

This is one of the most crucial parts of a will, covering all the assets not specifically disposed of in the will or elsewhere. This is important because you may accumulate assets after you write your will, and if you haven’t specifically given an asset to someone, it won’t pass through the will. A residuary clause can give all such property to one or more beneficiaries. (If your will omits a residuary clause, the assets not left specifically to anyone would pass on through the intestate succession laws, sometimes after long delays and extensive court involvement.)

Will or Trust?

You probably have a pretty good idea what a will does. In legal terms, it’s a revocable document―which means that it can be altered as circumstances or your mind change―by which you transfer your property at death and designate someone to carry out your wishes. Wills have been around at least since the time of the ancient Egyptians.
Trusts are newer, and are gaining in popularity. Like a will, they permit you to dispose of your property at death, but they have a number of advantages that might be important to you. For example, bypass trusts are very useful in estate planning to lower taxes.
Revocable living trusts may not have tax advantages, but are helpful in several ways. They

  • Are relatively easy to set up and change (wills have more formalities)
  • Enable you to eliminate or minimize the probate process
  • Protect your privacy (unlike wills, they usually require no public record)
  • Help you manage your affairs while living (a trustee can take care of your investments and other property if you’re incapacitated, or if you simply prefer to let someone else do it)
  • Permit you to direct how your property is to be distributed for a number of years (unlike wills, which make a gift of property at one time, trusts can last many years and enable your wishes regarding how your property is distributed to continue long after you die)

Your lawyer can help you assess whether a living trust or some other trust is appropriate for your circumstances.

(Fall 2005)

“Legal Update – Fourth Amendment”

アメリカ 弁護士 法律事務所 法律 最高裁判所最新判例:修正第4条

As a passenger in a car stopped by police, you probably wouldn’t feel free to simply walk away. In June, the United States Supreme Court ruled that you aren’t expected to. Brendlin v. California asked the Court to decide whether a passenger in a car stopped by police should be considered “seized” within the meaning of the Fourth Amendment, which bans “unreasonable searches and seizures.” Under the Court’s prior decisions interpreting the Fourth Amendment, if you are seized illegally by government officials, any resulting evidence cannot be used against you at trial. Courts have long recognized that the driver of a stopped car has been “seized” and therefore can challenge the constitutionality of both the stop and the government’s use of any resulting evidence. Before Brendlin, courts disagreed about whether passengers had this same right.
The Supreme Court held that Brendlin, a passenger, could challenge the constitutionality of a traffic stop. In reaching this result, the Court applied its test for identifying Fourth Amendment seizures - would a reasonable person in the same position feel free to leave? In ruling that passengers in stopped cars are likely going to think that they can’t leave, the Court noted: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver.”
If you think your rights under the Fourth Amendment have been violated, or if you are interested in learning more about your rights as a passenger, talk to your lawyer about your options.

(Fall 2007)

“Special Rules for Special Education”

アメリカ 弁護士 法律事務所 法律 特殊教育のための特殊規定

As the school year starts, parents and students face a host of challenges: extra curriculars; new teachers and classmates; and for some families, understanding the rules governing special education for their children with disabilities or special needs. Special education is growing fast, both in the education and legal communities. This issue is quickly becoming one of the most complex aspects of education. Consequently, it is often a source of worry for educators, parents, and students alike. Although working through the legal system can be stressful and costly, as a parent, you shouldn’t be afraid to advocate for your child, and when needed, to turn to the legal system to ensure your child gets a useful and appropriate education.
To understand the legal framework behind special education, parents of special needs children should become fully versed in the Individuals with Disabilities Education Act (IDEA). IDEA is the federal law that regulates educational services for disabled students. Under IDEA, a child is eligible for special education services if that child has a recognized disability, and because of the disability, needs special education and related services. This means that if your child is disabled, special education services are not automatically available-the disability must impact your child’s education.
Before advocating for your child, become familiar with IDEA terms:
Free and Appropriate Public Education (FAPE): IDEA guarantees that eligible children receive a FAPE. FAPE prepares children for productive, independent lives and gets them ready for further education. A FAPE must be based on research- proven methods of teaching and learning.
Least Restrictive Environment (LRE): IDEA requires that disabled students be educated in LREs. An LRE can be in either a public or private institution and can include regular or special education classrooms. LREs require that disabled children be placed in separate classrooms only when no benefit can be derived in the traditional setting. LREs ensure that disabled children are educated amongst nondisabled children as much as possible.
Individualized Education Plan (IEP): An IEP is essentially a written plan outlining a special needs child’s educational goals and needed services.
IEPs combined with due process hearings, make up the cornerstone of IDEA. These two steps provide the structure for your child’s education and allow you to voice any concerns. Your child’s IEP should include long and short-term goals, as well as benchmarks and assessment points. You should be present when the IEP is created and should ensure that all interested parties are there as well: special and regular education teachers; professionals such as social workers and psychologists; and, in some cases, your child. The IEP meeting is often a long process and it is important that you feel your child’s rights are protected.
Due process hearings tend to garner the most attention; however, if your child’s IEP is appropriate and followed, there should be little need for such a hearing. Hearings should only be used as a last resort when all other routes have failed. Due process hearings give parents the opportunity to challenge a proposed IEP, move, or educational change. Since these hearings are formal legal proceedings, they are becoming ever more sophisticated and costly. Nevertheless, you should not avoid a hearing if you feel one is needed in order to help your child receive necessary services.
A due process hearing is similar to a civil trial, although slightly less formal. At a hearing, evidence and testimony will be presented and there are often opening and closing arguments. These hearings allow you and the school the chance to show why your desired placement or change is best. Hearings are conducted in front of impartial hearing officers, who are usually independent contractors not employed by the local board or state agency. You can hire an attorney or advocate to represent you, or you can represent yourself if you choose. It is important to realize that the school will be represented by attorneys and that there are many legal terms and theories at play. Although legal fees can be costly, depending on the complexity of the issues involved and the emotions you are bound to feel, in some cases hiring an attorney may prove invaluable. Under IDEA, your child will “stay put” during the challenge over a placement or service. This means that for the duration of any mediations or hearings, children remain in their current placements. For some parents, this provides time for evaluation and a sense of safety during this stressful process.
You are central to your child’s special education. First and foremost, under IDEA, parental consent is required before an initial evaluation and before an IEP can be put in place. This consent is important because it allows parents time to decide how to respond and opens up the initial dialogue between parents and schools. Even after consent has been given or a placement has been challenged, you can continue to play an important role. It is helpful to educate yourself about your child’s rights under IDEA. You should also evaluate the relationship you want to create with school administrators-remember, currently you may disagree with them, but your child will be a part of the school community for years to come. In order to maintain good relations, prioritize your concerns and goals, and try to keep these at the forefront of any discussions or decisions. Lastly, it is important to keep detailed notes and copies of all documents. Every conversation with evaluators or school officials should be recorded, and notes should be maintained at every meeting. Although this may seem like a lot of work, if you ever need to challenge a decision or go to court, you will be happy you have such detailed records.
Special education is an important tool for many families as it provides their children with access to education and productive futures. If your child has been assessed as needing special education services or if you feel as though your child is not receiving the services necessary for his or her education, work with school administrators and your attorney to determine the appropriate course of action.

(Fall 2007)

“Election Season ”

アメリカ 弁護士 法律事務所 法律 選挙シーズン

There is no denying it, the campaign season is in full swing. But with the 2008 election still a year away, it is going to be a long campaign. Nevertheless, you really have only one thing to worry about – voting. Voting is one of the most important civic duties, yet recent voter turnout rates hover around 51%. Voting isn’t always as simple as waking up on Election Day and filling out a form – to ensure that your voice is heard, you must carefully follow registration and voting requirements.
In order to be eligible to vote, you must be 1) 18 years or older on Election Day, 2) a citizen, naturally born or naturalized, and 3) registered. Registering usually requires that you either register in person or mail in your registration. In most states, you can register at your local Department of Motor Vehicles. You should check with your Secretary of State to determine exactly where to register in your state. In addition, downloadable registration forms are likely available from your Secretary of State’s website. You simply fill out the forms and mail them in. Rock The Vote (www.rockthevote.com) and Declare Yourself
(www.declareyourself.com) also provides a registration form that works in most states.
In some states, such as Minnesota, you can register at your polling place on Election Day so long as you can verify your residence. In others, you must already be on the roll of eligible voters in order to vote on Election Day. This means you must register before Election Day. Deadlines for registration vary, but are usually 15-30 days before the election. The moral of the story is―to be sure you can vote in 2008, don’t wait, register early.
Federal elections are held on the Tuesday after the first Monday in November. Although this may seem like a random date, it actually has ties to our agrarian, rural, religious beginnings. This date ensured that voting wouldn’t interfere with farming or religious obligations and would allow ample travel time.
Today, the importance of Election Day is recognized in some states by its status as a holiday. For example, Delaware and Indiana recognize an Election Day holiday. If you live in a state where Election Day is a holiday, check with your employer to ensure you can have the day off. If instead you live in a state that doesn’t recognize the holiday, you should still talk to your employer about policies that may permit you to take time off for voting. Some employers grant their employees a late start or early departure on Election Day.
On Election Day, you should bring your voter registration card, a government issued ID, and proof of residency. Proof of residency is often simply an official document that lists your address, such as a check or lease. Although states vary as to the exact identification requirements, bringing all three ensures that you won’t hit any snags. Your polling place should be identified on your registration card. Usually it’s a school or community center within walking distance of your home. If you have lost your registration card or have yet to receive it, you can find your polling place by searching your Secretary of State’s website.
The right to vote is a constitutionally protected right. If you believe you are properly registered and eligible to vote, but on Election Day are denied the ability to do so, you should ask to file a “provisional ballot.” This will allow you to vote normally on Election Day. Afterwards, your ballot will go through a review process to confirm your eligibility.
Remember voting is your right. If you have any questions about voting procedures in your state, your eligibility, or if you feel your rights have been violated, work with your attorney to answer your questions and identify the proper course of action.

(Fall 2007)

“Bankruptcy and Credit Counseling”

アメリカ 弁護士 法律事務所 法律 破産とクレジット・カウンセリング

Unfortunately, major debt is a reality in many Americans’ lives. In October 2005, the Federal government passed a new bankruptcy law affecting millions of Americans. Among other things, the law requires individual or group credit counseling within 180 days prior to filing a bankruptcy petition.
The Federal Trade Commission has issued the following warning regarding Credit Counselors:
Everyday, companies nationwide appeal to consumers with poor credit histories. They promise, for a fee, to clean up your credit report … The truth is, they can’t deliver. After you pay them undreds or thousands of dollars in fees, these companies do nothing to improve your credit report; most simply vanish with your money.
How, then, does one complete the mandatory counseling and not get ripped off?
The new law requires the U.S. trustee to provide a publicly available list of approved not-for-profit credit-counseling agencies that can provide the mandatory services. These credit agencies are permitted to charge only “reasonable fee[s],” and “provide services without regard to ability to pay the fee.”
Debtors work with approved counseling agencies to develop debt-management plans. Debt-management plans may consist of the credit-counseling agency collecting a lump sum each month that it then distributes to creditors (debt management), or the agency may help the debtor by negotiating better credit terms with the creditors while payments continue to be made directly to creditors (debt negotiation). Once developed, the debt-management plan must be filed with the applicable bankruptcy court along with a certificate from the agency that assisted in its development.

(Summer 2007)

“Reviewing Custody”

アメリカ 弁護士 法律事務所 法律 養育権問題

As blended families become steadily more prevalent, it is important that parents understand their rights and responsibilities. With youngsters out of school for the summer, custody agreements are on many peoples’ minds as noncustodial parents around the country exercise their legal parenting time (often called visitation rights).
If you are considering divorce, the custody arrangement may be the most important aspect of your divorce agreement. Divorce agreements dictate whether children live primarily with one parent (a sole custody arrangement) or split their time more or less evenly between their parents (a joint custody arrangement). In sole custody, one parent takes care of the child most of the time and makes major decisions about the child. That parent is usually referred to as the custodial parent. The other parent is the noncustodial parent. Unless he or she is deemed a danger to the child’s welfare, the noncustodial parent is granted a right to parenting time.
Situations in which both parents share in making major decisions about the child and both parents spend substantial amounts of time with the child are known as joint custody arrangements.
When parents cannot agree between themselves about the custody of their child, the court decides. Courts base their decisions on an assessment of the best interests of the child. Factors affecting the courts’ understanding of children’s best interest are often listed in states’ family law statutes, domestic-relations statutes, and earlier court decisions.
The wishes of a child can be a factor in custody decisions. Though some courts will not consider the preferences of a child under seven, an older child’s expressed preferences are taken seriously by the court.
If you are already divorced, and recent changes in your or your ex-spouse’s circumstances makes a review of the custody arrangement necessary, courts do have the power to make changes. A parent seeking to modify custody through the court against the other parent’s wishes must show substantial change in circumstances since the last custody order.
In order to discourage parents from constantly litigating custody, some states apply a special standard for custody modifications sought within the first year or two after a prior custody order.
If both parents wish to voluntarily change custody or visitation schedules, they may do so without obtaining a court order. However, if the parent receiving custody or more visitation wants to protect the changes from future reversal, it is best to obtain a court order to that effect. Additionally, informal changes in custody do not affect a parent’s support obligation-only the court can change court-ordered child support.
If you and your spouse have already decided to divorce, it may be worthwhile to get a legal separation first. A legal separation can be an agreement signed by both parties, an order of the court, or both. The legal separation articulates rights that can be enforced by a court while a divorce is pending. These rights might include child support or allocation of time with children, among other things.
While it is possible to get divorced without the help of a lawyer, this is never advisable when children are involved. Even amicable divorces may require an attorney’s hand to assure that custody issues are treated fairly. Talk to your lawyer before signing any custody agreements or if you feel you’d like to change your existing agreement.

(Summer 2007)

“Hiring Immigrants”

アメリカ 弁護士 法律事務所 法律 移民の採用

When hiring a new employee, businesses must be careful not only to select the right person for the job, but to make sure that they do so legally. When considering an applicant who is an immigrant, employers must be careful to guard against illegally hiring individuals not authorized to work in the United States while avoiding discriminating against U.S. citizens based upon ethnicity.
The federal Immigration Reform Control Act (IRCA) requires employers to complete Form I-9, an eligibility form, for every new employee. The I-9 serves as proof that the employer has verified the legal eligibility of the applicant to be employed in the U.S. Employers must retain these forms for three years after hiring, or one year after employment is terminated, whichever comes last. IRCA applies to all private-sector businesses with three or more employees. Covered businesses can prove they have verified employment eligibility on the I-9 through checking one or more of several documents:

  • Social Security card plus driver’s license with photograph;
  • U.S. passport;
  • unexpired foreign passport with temporary I-551 stamp;
  • alien registration receipt card;
  • permanent resident card (green card); or
  • U.S. birth certificate plus driver’s license with photograph.

When hiring ANY new employee, it is paramount that your business verifies the individual’s eligibility to work by examining one of the documents listed above. Checking a potential employee’s driver’s license is not enough.
While IRCA prohibits the employment of individuals not authorized to work in the U.S., it also prohibits employers from discriminating against U.S. citizens or “intending citizens” on the basis of national origin or citizenship status.
The antidiscrimination provisions of IRCA protect U.S. citizens and those immigrants authorized to work in the U.S. who are taking active steps to become citizens, from discriminatory or simply overly cautious employers.
It is important for employers and employees alike to understand that all employees, whether legally authorized to work or not, are protected by federal and state workplace law. For example, if an employer fires an illegally hired unauthorized worker because that person has joined a union, the employer has violated the law. Though the employee’s recourse is limited, the employer remains liable and subject to sanction in the event of a violation. The Department of Justice Office of the Special Counsel for Immigration-Related Unfair Employment Practices offers more information on its website, www.justice.gov/crt/osc.

(Summer 2007)

“Intending Citizens”

アメリカ 弁護士 法律事務所 法律 帰化予定者

Intending citizens are non-naturalized immigrants who are actively pursuing naturalization and have been:

  • lawfully admitted to the U.S. for permanent residence (green-card holders);
  • granted temporary residence in the U.S. under IRCA’s legalization program;
  • granted asylum in the US under the Immigration and Nationality Act; or
  • admitted to the U.S. as a refugee under the Immigration and Nationality Act.

(Summer 2007)