College Scholarships for DACA Recipients

August 15th, 2014

Several states have passed legislation that makes undocumented immigrants eligible for in-state tuition at public colleges and universities, while other states have passed legislation expressly prohibiting such benefits. Undocumented immigrants, including DACA recipients, however, are prohibited from receiving federal student aid, and thus many must rely on private loan providers and private scholarships to finance their educations.

In response, Don Graham (formally of the Washington Post), activist Henry R. Muñoz, and DREAMer Gaby Pacheco convened a group of national and state-based organizations, post-secondary educational institutions, Fortune 500 companies, and DREAMers to discuss the creation of a scholarship fund to provide low-cost, high quality college education to undocumented students. From their meeting emerged a program, “TheDream.US” that offers college scholarships of up to $25,000 to DACA recipients. Scholarship recipients may renew their awards by showing that they remain DACA-eligible, maintain a GPA of at least 3.0, and remain enrolled in their academic programs on at least a part-time basis. The program’s founders envision adding more partner institutions and expanding its geographic reach. There are currently 12 institutions in the program: Long Beach City College; California State University, Long Beach; Trinity Washington University; Miami Dade College; Kingsborough Community College; Bronx Community College; Borough of Manhattan Community College; El Paso Community College District; University of Texas, El Paso; South Texas College; University of Texas, Pan American; and Mount Washington College

I-94 Arrival and Departure Records Now Available for Five Years

August 8th, 2014

The Customs and Border Protection (CBP) website that nonimmigrant travelers access for their arrival record now allows such travelers to access arrival and departure records going back five years from the request date. The availability of the five-year record may obviate the need for a nonimmigrant to submit a FOIA request for his or her travel records, but the five-year record also reveals some potentially significant problems. Here’s one problem: a foreign national first schedules, then cancels or reschedules international travel but his name remains on the airline’s original flight manifest. This can result in CBP removing the current I-94 record from the website portal and also recording on the portal that the foreign national departed the United States.

In a recent exchange with CBP officials, CBP provided the following explanation why this could occur. CBP registers foreign nationals’ departure through information reported in the Advance Passenger Information System (APIS). If APIS shows that a foreign national is named on a flight manifest, the I-94 is removed from public access on the Web portal; the foreign national also may be identified on the public access website as departing the U.S. It appears that APIS is not automatically updated under these circumstances — the airline is responsible for the departure information in APIS and the airline is supposed to report the update. What happens when the airline does not update its information? While USCIS can determine from the APIS records that the person was in fact a “no board” and did not depart, the non-availability of the I-94 record on the CBP website can be an issue for the individual needing that information, such as in the context of changing or adjusting status.

Nonimmigrant travelers are well advised to regularly check their automated I-94 record and, now, their five-year history whenever they travel in and out of the United States.

DHS Proposes Rules Affecting Some High Skilled Workers and Spouses

August 1st, 2014

The Department of Homeland Security (DHS) has issued two proposed rules that affect the highly skilled. Both rules provide benefits, but in the grand scheme of immigration reform, the benefits are very limited and affect a limited class of foreign nationals.

The first DHS proposal would extend the availability of work authorization to H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited, however, to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment and who already have passed some of the hurdles. This includes those H-1Bs who are either the beneficiaries of an approved I-140 immigrant visa petition or whose stay in the U.S. has been extended under the American Competitiveness in the 21st Century Act (AC21), which allows H-1B workers seeking lawful permanent residence to stay and work in the U.S. beyond the normal six-year limit. Some 97,000 spouses are expected to become eligible for work authorization in the first year after the rule is finalized, with about 30,000 eligible annually. This still leaves, however, many H-1B visa holders’ spouses unable to work.

The second proposed rule would update existing regulations to include professional specialty workers from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of foreign national visa holders authorized for employment incident to status with a specific employer — in other words, not required to apply separately to DHS for work authorization — and permitting H-1B1 and E-3 workers up to 240 days of continued work authorization while they await approval of their status extension requests. The proposal also includes Commonwealth of the Northern Mariana Islands–only transitional workers (CW-1). These rules currently apply to H-1B nonimmigrants. The rule would also permit foreign nationals applying for EB-1 visas to prove their academic achievements through evidence that does not appear in the current list of acceptable evidence. Instead, evidence that is “comparable” to the types of evidence listed in the regulations would be acceptable.

According to DHS, it is proposing these changes to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

The comment period ends in July, after which DHS must issue final rules before the proposals go into effect.

News In Brief…

July 25th, 2014

The following additional items may be of interest to our readers:

Update on Visa Number Availability: The Department of State Visa Bulletin for July 2014 reflects slight forward movement for many categories but an almost four-year jump for the employment-based second preference, EB-2, for India, moving from 11/15/04 to 9/1/08. The Worldwide Family 2A category (spouses and children of lawful permanent residents) remains at 03/01/12. And, despite rumors that the EB-5 investor preference category for China would retrogress, that category remains current and is only expected to retrogress in September, if at all.

U.S. Consulates in Canada Limit Visa Processing for Non-Canadian Nationals: Due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts in Canada are extremely limited in their ability to accept foreign national cases from other countries during the summer. The posts encourage such applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting

Difficulty Reaching the National Visa Center? Trying Calling During Off-Peak Hours: Attorneys and clients have reported their inability to contact the National Visa Center by telephone, reporting a busy signal when dialing NVC’s published contact number, (603) 334-0700. The NVC has confirmed that its phone lines are working properly but are operating at full capacity. NVC recommends calling during off-peak times: 7am to 10am (ET) and 8pm to midnight (ET). While the NVC has indicated that they will upgrade their phone system, that upgrade will not take place for the next several months.

New Report Analyzes H-1B Lottery and Finds Cap Disproportionately Hurts American-born Tech Workers: A report released by the Partnership for a New American Economy reveals that the existing H-1B visa lottery caps disproportionately hurt American-born tech workers by slowing job and wage growth in more than 200 metropolitan areas across the U.S. Relying on data from the USCIS, DOL, and the American Community Survey (ACS) to build a new model of causality, the report states unequivocally that cities whose employers faced large numbers of denials in the H-1B visa lotteries experienced considerably less job creation and wage growth for American-born computer workers in the two years that followed. Denying H-1B visas didn’t help the economies of America’s cities or their U.S.-born workers, according to the report. Instead, it cost their tech sectors hundreds of thousands of jobs and billions in missed wages.

USCIS Announces Expansion of L-1 Site Visits

July 18th, 2014

USCIS recently announced an expansion of its Administrative Site Visit and Verification Program, which conducts unannounced site visits to the offices of U.S. employers who have filed H-1B — and now L-1 — visa petitions. The program is implemented by the USCIS Fraud Detection and National Security Directorate (FDNSD). Until recently, site visits targeted locations where H-1B workers were employed and verified compliance with the terms and conditions set forth in the H-1B petition filings. This expansion corresponds to a report on the L-1 visa category recently released by the Office of Inspector General, which specifically recommended that USCIS complete a site visit before approving extensions of new office L-1 petitions. It is anticipated that extensions of new office L-1 petitions will be the primary target of L-1 site visits initially. Whether the program will be expanded to longer-established companies that file L-1 petitions remains to be seen; in all likelihood, that too can be expected.

Renewing DACA

July 11th, 2014

As expected, in early June USCIS released a new dual-use form (I-821D) and instructions for individuals seeking renewal of or initial requests for Deferred Action for Childhood Arrivals (DACA) relief. First and foremost, USCIS advises that DACA renewal requests should be filed no sooner than 150 days and no later than 120 days before the current period of DACA expires, to ensure that the case is processed in time. While USCIS anticipates making a determination before the expiration date, if the agency does not adjudicate the case in time, it is likely to grant deferred action and employment authorization for a short period of time until it finishes processing the case. Second, USCIS advises that only new documentation pertaining to removal proceedings or criminal history not previously submitted should be filed with the renewal request. USCIS may request additional documents or statements to support the request for renewal of DACA, and advises that it may also contact other government agencies, education institutions, employers, or other entities in order to verify information.

USCIS will continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 individuals have received DACA.

Didn’t Make the H-1B Lottery? Certain Employers May Find Relief in STEM Extension

July 4th, 2014

With only 85,000 visas available for the 172,000 H-1B petitions received by USCIS, those unlucky employers and their foreign national workers who were not selected in the lottery must seek alternative work authorization strategies. One alternative may be enrolling in E-Verify, the free, Internet-based program that enables employers to electronically verify the employment eligibility of new employees, in order to obtain a 17-month work permit. The additional 17 months is available to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, and who have received an initial grant of post-completion OPT related to such a degree. But, the employer must also participate in E-Verify. The additional 17-month work authorization could provide some breathing room to pursue alternative strategies for longer-term employment; moreover, the extension gives U.S. employers another chance to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for another H-1B petition. Participation in E-Verify, however, includes a number of pros and cons, not the least of which are administrative burdens and additional obligations and potential liabilities. While obtaining additional work authorization for employees not selected in the H-1B lottery may be appealing, eligible employers should carefully weigh the advantages and disadvantages of E-Verify participation before signing up.

Federal Agencies Coordinate Response to Unprecedented Influx of Unaccompanied Minors at Southwest Border; Legal Services Included

June 27th, 2014

In early June, President Obama announced that the influx of unaccompanied foreign national children across the southwest border of the United States was causing an urgent humanitarian situation that requires a unified and coordinated federal response. Some 60,000 unaccompanied children are expected to be apprehended this year, up significantly from the almost 25,000 children apprehended in fiscal year 2013. And, young girls and children under 13 are entering the country more than ever before. The federal response, headed up by the Federal Emergency Management Administration (FEMA), includes housing, medical treatment, food, and other services for these children; $1.4 billion has been requested to provide such services. Most of the children are from Mexico and Central American, and are fleeing violence, poor economies, and/or are seeking to be reunited with family members already in the United States. One of the reasons cited for the recent unprecedented influx was false rumors that the U.S. was giving a special entry “permit” to unaccompanied minors and women traveling with children but only until the end of June. Currently, such minors are housed in a facility for 30–45 days then released to a parent, relative, or sponsor. The release, however, does not stop removal proceedings if deemed appropriate.

Border officials also opened an investigation into claims of abuse by border agents on the southwest border made by five legal groups. The charges include depriving food and medical care to the youth while in holding cells.

As part of this federal response, the Department of Justice (DOJ), through its Executive Office for Immigration Review (EOIR) and the Corporation for National and Community Service (CNCS), which operates the AmeriCorps national service program, entered into a strategic partnership to enroll approximately 100 lawyers and paralegals as AmeriCorps members to provide legal services to the most vulnerable of these children. The goal is “to better serve vulnerable populations . . . and improve court efficiency through pilot efforts aimed at improving legal representation.” In addition, DOJ officials believe the AmeriCorps members will help identify unaccompanied immigrant children who have been victims of human trafficking or abuse to assist in the investigation and prosecution of those who perpetrate such crimes.

The program will serve children in the immigration court locations where grants are awarded; will be limited to children under the age of 16 who are not in the custody of DHS or HHS’s Office of Refugee Resettlement; who have received a notice to appear in removal proceedings before an immigration court; and have not had their cases consolidated with removal proceedings against a parent or legal guardian. Programs must be located in Arlington (VA), Atlanta, Baltimore, Bloomington (MN), Boston, Charlotte (NC), Chicago, Cleveland, Dallas, Denver, Detroit, El Paso, Hartford, Kansas City (MO), Las Vegas, Memphis, Miami, New Orleans, New York, Newark, Omaha, Orlando, Philadelphia, Phoenix, Portland (OR), San Antonio, San Diego, San Francisco, and Seattle.

Applications are due July 22, but applicants are encouraged to send a notice of intent to apply by July 15. Successful applicants will be notified in late September.

Medical Reports (I-693) Now Valid for Only One Year But Can be Submitted After Initial Filing

June 20th, 2014

As of June 1, medical examination reports (I-693) submitted by applicants in support of a benefit application will be only valid for one year from the time of the civil surgeon’s signature and submission to U.S. Citizenship and Immigration Services (USCIS). In other words, the report must be submitted to USCIS within one year of the complete examination and the application must be adjudicated within one year after the date the report was submitted to USCIS. Medical exam reports are most commonly submitted in support of I-485 adjustment of status applications. Previously, since about 2002, USCIS had agreed to extend the validity of the civil surgeon’s I-693 endorsement until the time of adjudication, because of backlogs in certain preference categories. While the new policy means that some applicants must undergo another medical exam before their case is adjudicated, the good news is that medical examination forms will no longer be required as initial evidence and may be submitted at any time after filing the immigration benefit application but prior to adjudication. If the medical examination form is not filed concurrently, USCIS encourages applicants to wait until the medical examination form is requested by USCIS, either through the issuance of a Request for Evidence (RFE) or through a notice to bring a completed medical examination form to the interview. This policy change was made in response to concerns raised by the Centers for Disease Control.

In the meantime, and in anticipation of this policy change, USCIS has been sending RFEs to applicants notifying them that their medical reports filed in support of their adjustment applications are about to exceed the validity period. Moving forward, RFEs for new medical examinations will only be issued shortly before it is anticipated that the case can be adjudicated to completion.

TSA PreCheck and Global Entry – Time to Enroll?

May 19th, 2014

The Transportation Security Administration is aggressively encouraging more people to sign up for TSA PreCheck (or, as TSA puts it: Pre?™), a program that permits travelers to go through airport security without having to take off their shoes or light jackets or pulling liquids and laptops out of baggage. They can also walk through metal detectors rather than enduring full-body scanners. By doing background checks on PreCheck enrollees and scanning law-enforcement databases, TSA offers what is essentially pre-9/11 screening to “trusted travelers.” The goal for TSA is to make better use of its designated security lanes, which currently number 590 at 118 U.S. airports. TSA believes PreCheck also enhances aviation security by moving prescreened people from regular lanes and letting screeners focus more closely on other travelers. To entice travelers and test its ability to handle more people, TSA has been selecting regular travelers into PreCheck lanes for a sample of swifter security. Selection is based on criteria such as a passengers’ travel history and the route being flown. TSA officers trained in behavior detection also can move passengers they deem low-risk from regular queues into PreCheck lanes.

TSA is also encouraging travelers to apply to the program directly. The agency is opening enrollment centers across the country, letting people who are U.S. citizens or permanent legal residents make an appointment or drop in and have fingerprints taken digitally. The $85 background-check fee buys five years of enrollment. TSA expects to have centers at 35 to 40 airports by the end of May and perhaps 75 by the end of 2014.  Applications also are taken at many government offices. For locations of enrollment offices and other information, see

Launched in 2011 by invitation only, the program was expanded to include people enrolled in Global Entry, a U.S. Customs and Border Protection program for trusted travelers. Global Entry requires a background check, fingerprinting, and an interview with a Customs officer. Global Entry costs $100 for five years and is an even better deal for people also planning travel outside the U.S. because they also automatically included in PreCheck. But, the application and interview process is more extensive.