CalgaryAMC

The form first asked, "Are you a U.S. citizen, U.S. permanent resident (Green Card), asylee, refugee, or temporary resident under an amnesty program?"

The answer to which, as a K-3 with pending AOS is "no." Furthermore, I understand why this question is being asked. It is to establish whether you are in a protected status governed by the IRCA.

The second question, however, is "If 'No,' do you have the legal right to work permanently in the United States?"

I cannot find what law this second question is intended to address, since there is no law that establishes, to my knowledge, "the legal right to work permanently in the United States." Even PR's don't have that right, they only have the right whilst they remain permanent residents.

So, what's the answer? A K-3 works under that status. Then under an AOS-pending status if it takes that long to adjudicate, and then under permanent residency status, and then, ultimately perhaps, under citizen status. But the right to work is not "permanent" under any one status. It is permanent under the uninterrupted sequence of statuses.

On the other hand, if their AOS is denied, then so too their legal right to work discontinues. In that sense it is not permanent.

Any thoughts?

Noorah101

Just curious, what form are you referring to?

Rene

CalgaryAMC

A job application-type form -- not a government form. If you google "do you have the legal right to work permanently in the United States" you will find dozens of job application forms that ask this question.

I don't understand how to answer the question.

Noorah101

That IS a good question. If you're handwriting the answers on the form, maybe you can answer "yes" and just cross out the word "permanently" on the form. That way the question reads "do you have the legal right to work in the United States" and that one you can easily answer.

Rene

sphyrapicus

It sounds like, yet another, non-USCIS entity playing pretend immigration authority. The I-9 covers all of this so the whole exercise is pointless. Besides, it is a form of discrimination to not hire you if you are not permanently able to work in the US. For example, if you had an EAD, you would not be permanently able to work.

CalgaryAMC

The thing is, that's not the case. If it was it would be an easy question, albeit quite possibly an unlawful one.

EADs are issued to people in many different types of statuses. Some are genuinely and quite unequivocally time limited (F-1 students, for example). Others are more vague (AOS applicants, for example), yet others are vague but statutorily protected (asylum applicants)...

The law does not appear to offer anything like the clarity the question requires.

As I think about this, the only logical reason for the word "permanent" in the question would seem to be to establish which applicants have an absolute end date to their authorization, such F-1s, TNs, etc., rather than those who are lumbering slowly through the system towards, ultimately I suppose, naturalization.

sphyrapicus

All EADs are not permanent, no matter what the status of the individual.

Have you entertained the idea that the person drafting the application form is clueless, ignorant, immigration-challenged, or some other descriptor?

Sphy

CalgaryAMC

The question doesn't ask about EAD expiration dates though. It asks "do you have the legal right to work permanently in the United States?" That right is not conferred by an EAD. Nor does the law, USCIS or anyone else claim that it is. In fact the handbook for employers (M-279) explicitly states that EAD expiration dates do not speak to a person's legal right to work. So the question is not asking about EADs, it's asking about what underlying status gives you the right to work.

As for the clueless, ignorant, etc. I have entertained the idea. But it is big organizations with substantial legal and HR departments generating these forms. I think I have answered my own question, to be honest -- I think the question is intended to deal with people who have an absolute end to their status. Pre-AOS application K-1s or K-3s would fall under that category, for example.

sphyrapicus

My point is that if you had an EAD, you would not have a legal right to work permanently. So, they are discriminating against anyone with an EAD. I don't see how anyone could answer "yes" to the second question if their answer to the first was "no". Who can work permanently in the US besides a "U.S. citizen, a permanent resident, asylee, refugee, or temporary resident under an amnesty program"? None that I can think of. As such, the second question could never be answered in the affirmative, the way it is worded. Clearly, the framer of the form isn't using wording in a manner consistent with what what they meant to write. And as for the use of the word "right", that's a whole other issue. I'm merely focusing on the use of the word "permanently".

meauxna

Oh, well since we're talking about HR personnel.....

Ahem, I'm back. This may be of assistance:
http://uscis.gov/graphics/howdoi/PermRes.htm
Rights
As a Permanent Resident you have most of the rights of a United States Citizen but there are some exceptions.

Rights
To live permanently in the United States provided you do not commit any actions that would make you removable (deportable) under the immigration law (section 237, Immigration and Nationality Act).

To be employed in the United States at any legal work of your qualification and choosing.

etc etc

The use of the word permanent here for residence, might transfer itself to 'work permanently' as well.

sphyrapicus

I don't think anyone is disputing that fact Mo. The issue is if you answer "no" to the first question (e.g. you are not a USC, LPR, etc) then how could you answer "yes" to the second?

meauxna

Oy, excuse. See what I get for cutting back the coffee rations?!
Please disregard my completely irrelevant response.

Depending on the application circumstances, I would be tempted to take it up with them in person. I realize that an application that's blindly mainled in may be discarded if a 'no' answer is entered, then again, they may not discriminate as per the I-9 (unless this is a security-level issue).
Answering truthful might not disqualify the application; it may be something that they would also want to discuss in person.

Folinskyinla

Hi:

You are putting too much analysis into this -- some of it wrong.

The form seems to be badly drafted -- There is one class that would fit within of persons that is not mentioned in question #1 but does have the permanent right to work -- but it doesn't apply to you.

I think you should add in that you work authorization pendent to application for permanent residence.

Personally, I think those questions are illegal as framed and I would not advise a client employer to pose them that way.

CalgaryAMC

Yes, basically that's what this boils down to.

The terminology used in the question corresponds to nothing found in law. So we have to interpret it somehow. We could attempt, I suppose, to make an interpretation using semantic similarity. In which case we would conclude that only "permanent" residents have the right to work "permanently."

But that would render the second question moot. Which it isn't, because it is premised with, "If 'No,' [to the first question] do you..."

So there clearly exists some other test of permanency that goes beyond being a permanent resident. And what is that? I am interpreting it as meaning anyone who has no legally mandated end point to their legally authorized status.

An AOS applicant, as one example, really doesn't have any end point to that status, unless their application is denied. So an AOS applicant has the right to work permanently, with the caveat that if some factor we will call "x" happens (application denied, commit a deportable offence, etc.), then that right is taken away.

Does this caveat destroy the permanence of the status? Well, even meauxna's PR case does not demonstrate "legal right to work permanently in the United States." The right to work is inherited from your immigration status, in this case the status from which it is inherited would be permanenty residency. But permanent residency is an immigration status that is in no sense a "right" or even "permanent." It is a status subject to a dozens of caveats itself.

That's my logic on this rather silly question...

CalgaryAMC

Out of interest, what is that class?