President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean?

December 24th, 2014
 

As most of our readers know, on November 20, President Obama announced a number of sweeping and historic immigration measures to address the country’s pressing immigration issues. The overriding principles behind the President’s announcement are: (1) prioritizing immigration law enforcement on those who pose a threat to the United States; (2) creating a program that ensures family unity; (3) facilitating the entry of highly skilled workers who contribute to the U.S. economy, and retaining those who are already here; and (4) securing the country’s borders. Two initiatives will grant work authorization and a shield against deportation for an estimated 4-5 million undocumented immigrants. Other initiatives will benefit over 400,000 foreign national employees waiting for green cards. While the announcement dominated the news and social media for several weeks, none of the actions outlined in the President’s speech and by the Department of Homeland Security shortly thereafter has taken effect.

The articles below summarize the President’s executive action, describe who is likely to be impacted, and explain when in the coming months these measures will be available to eligible foreign nationals.

Expansion of Deferred Action for Childhood Arrivals (DACA):

As announced, the program that went into effect in 2012 will be expanded by eliminating the current age cap of 31 (as of the date of the original DACA announcement). Also, the eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. Moreover, USCIS will grant DACA and work authorization for three instead of two years, which also will be extended to pending DACA renewal applicants.

USCIS expects to accept DACA application under the extended program within 90 days of November 20.

Deferred Action for Parental Accountability (DAPA):

USCIS will create a new deferred action process, similar to DACA, for parents of U.S. citizens and lawful permanent residents – such children must have been born as of November 20, 2014 – who have been continuously present in the U.S. since before January 1, 2010; who were physically present in the U.S. on November 20, 2014; and who are present at the time of application. Eligible parent-applicants will be able to request deferred action and employment authorization for three years, provided they pass required background checks.USCIS expects to begin accepting applications within 180 days of the November 20 announcement

Expansion of Provisional Waiver Program:

The provisional waiver process permits individuals who are eligible to apply for their green cards but who must apply for a waiver of inadmissibility because they have been in the United States unlawfully to do so from within the U.S. before departing for an interview at U.S. consulate abroad. Currently, only immediate relatives (spouses and children of U.S. citizens) are eligible to apply for provisional waivers. Under the expanded program, eligibility for such waivers will become available to all relatives for whom an immigrant visa is available.  In other words, the provisional waiver will be available to the spouses and children of lawful permanent residents (LPRs) as well as other relatives of U.S. citizen-petitioners. Under the provisional waiver program, applicants must show “extreme” hardship to certain U.S. citizen or LPR family members. Under the new directive, USCIS also has been instructed to provide guidance on the definition of “extreme” hardship. The agency may also consider criteria by which a presumption of extreme hardship may apply, which would make it easier for otherwise eligible green card applicants to obtain this necessary waiver.

This change will be done by regulation, but no time frame has been provided.

Work Authorization for H-4 Spouses:

A rule already proposed would permit H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD) card. The rule as proposed limited eligibility to H-4 spouses whose H-1B spouse has begun the process to obtain permanent residency.

Final rulemaking is expected later this month or in January 2015.

Foreign Student Optional Practical Training (OPT):

The length of time for OPT for STEM (science, technology, engineering, and mathematics) graduates of U.S. institutions will be extended, and additional expansions of this program may occur, including the number of degree programs eligible for OPT.

This will be done by regulation, but no time frame has been provided.

PERM Labor Certification:

Perhaps the most common way for employees to obtain green cards is through a labor certification showing that no U.S. workers are willing, able, or available to perform the job.

Regulations will be published to modernize the PERM program and to make the program more responsive to changes in the U.S. workforce.

Relief for Employees Awaiting Green Cards and Modernizing the Employment-Based Visa System:

Each year thousands of visas go unused because the allocation system is not precise. These unused visas could be recaptured so that those waiting for their green cards can get them more quickly. DHS Secretary Jeh Johnson has directed USCIS to undertake several steps to modernize the employment-based visa system, including exploring with the Department of State optimal use of the annual visa allocations. Another measure is to permit individuals with an approved I-140 employment-based petition and caught in the lengthy visa backlog to pre-register for adjustment of status and obtain the benefits of pending adjustment. Such benefits would include obtaining EADs and travel permits. It is presumed that this would include the employee-principal applicants as well as their family-member dependents. These changes could provide tremendous flexibility for employers and their foreign national personnel. Moreover, USCIS has been instructed to clarify the types of job changes (“same or similar”) that do not require new PERM applications, and to make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permissible. The change is expected to affect about 410,000 people.

No time frame has been provided for when these changes would be implemented.

Promoting Research, Development, and Entrepreneurship:

Certain foreign “inventors, researchers, and founders of start up enterprises” will be afforded new immigration options, through the clarification by USCIS that the National Interest Waiver employment-based immigrant visa category is appropriate for some and granting parole status for others.

These changes will be implemented by policy memo and regulation, but no time frame has been provided.

L-1B Specialized Knowledge Intracompany Transferees:

USCIS has been instructed to issue a long-awaited policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” It is expected that a more lenient and consistent interpretation of the law will be implemented, which will provide more certainty for companies and reduce denials.

Southern Border and Approaches Campaign:

DHS has commissioned three new task forces, with personnel realignments to improve border security. The announcement specifically states that the objectives should not impede travel, lawful trade, and commerce.

“Secure Communities”: The controversial deportation program, also referred to as 289(g), is discontinued. The program relied on integrated databases and partnerships with local and state jailers to build domestic deportation capacity and required local law enforcement to detain individuals for ICE custody. Many state and local partners as well as rights advocates and others came to resent the program because of its detrimental effect on local law-enforcement operations, and because it became a general deportation facilitation tool rather than a tool for deporting criminals.

Immediately after President Obama’s executive action was issued, the legality of his authority and actions was raised. While many legal scholars, including some 130 law professors and former general counsel of the immigration service, have stated that the President’s actions are within the legal authority of the government’s executive branch and are consistent with similar actions taken by other presidents, a lawsuit was filed by 17 states in U.S. district court seeking declaratory and injunctive relief. The suit alleges that the Administration’s immigration executive actions violate the “Take Care Clause” of U.S. Constitution (Art. II, Sec. 3, Cl. 5) and Administrative Procedure Act (APA). It remains to seen what the court will do.

In any event, none of these programs has been implemented, and it may be months before the publication of any policy guidance or formal regulations that give these action effect.Moreover, President Obama’s actions do not provide permanent relief or status to anyone, and Congress can enact legislation to supersede any and all of these reform measures.

For months to come, the agencies will provide explanations, instructions, forms, and more detailed procedures as necessary, and we will provide those details as we learn of them. In the meantime, our experienced attorneys are available to answer questions and determine how you may benefit.

Probation Versus Suspended Sentence: What’s the Difference Under US Immigration Law?

December 8th, 2014

Under U.S. immigration law, there is a world of difference between being sentenced to probation and being sentenced to jail but with the jail term suspended. The latter can have dire immigration consequences, even though there may be no meaningful consequences under state criminal law.

Under U.S. immigration law, a suspended term of jail or imprisonment for a criminal offense is considered the same as actually serving that time in prison. Rather than classification of the crime, the law looks at the term of imprisonment. This means that it usually doesn’t matter whether the offense is classifiable as a felony or misdemeanor.  The length of the sentence is especially important because the provisions that refer to “removability” often reference the term of imprisonment to determine whether a person is removable from the U.S. for the crime.  The length of sentence, in turn, also determines whether there is relief available in the form of a waiver from deportation. This is true whether an individual is on a nonimmigrant visa or is a permanent resident.

Most people aren’t criminals and don’t engage in behavior that is normally considered felonious.  But, let’s look at shoplifting.  Often, an individual convicted for misdemeanor shoplifting is sentenced to one year suspended. Perhaps the criminal defense attorney recommended this strategy because it means no jail time, no felony under state law, and even an eventual expungement of the record. The result is no criminal record of consequence.  Not so under immigration law.  Immigration law states that if an individual is sentenced to a year or more for a theft crime, then the crime shall be classified as an “aggravated felony,” even if the original crime was classified as a misdemeanor. An aggravated felony charge under immigration law is extremely serious. It almost always means that the individual — lawful permanent resident and nonimmigrant alike — will be placed in “mandatory detention” and cannot be released on bond.  Furthermore, with the current backlog in the immigration courts, such a person detained under the “mandatory detention” provisions will be held for many months awaiting a hearing before an immigration judge. Finally, a charge of “aggravated felony” limits the availability of relief from deportation that may be available. Thus, even long-time permanent residents who are convicted of an aggravated felony can and often are deported to their home country.

The important lesson here for both nonimmigrants and immigrants is to carefully abide by the laws of this country, because even a minor infraction can have serious consequences. In case of an arrest, it is vital that an immigration lawyer be retained to advise the criminal lawyer on possible dispositions that will not result in removability or other longer-term immigration consequences.  A permanent resident should always apply for naturalization as soon as possible so as not to become subject to removal from the U.S.  Finally, if one has an arrest record of any kind, it is important to seek qualified immigration counsel before traveling abroad, renewing the green card, or applying for naturalization.

E-2 Visa Eligibility for Israelis One Step Closer

December 5th, 2014

In mid-August the Israeli Knesset Interior Committee approved a bilateral treaty between Israel and the United States, allowing U.S. citizens to receive investor visas in Israel. This paves the way for the implementation of the E-2 visa process for Israeli nationals seeking to invest in U.S. businesses. The Israeli investment visa allows U.S. citizens to stay and work in Israel for as long as needed for the investment, along with any essential employees and family. The U.S.’s E-2 treaty investor visa would permit the same for Israeli citizens. While President Obama signed legislation for implementation of an investor treaty for Israelis in June 2012, its implementation has been delayed while the Obama administration works at finalizing the terms of the visa. The approval by the Israeli appears to be the last obstacle in the process. The decision comes despite an ongoing brouhaha over restrictions on Israeli citizens from receiving tourist visas until further notice. In April, U.S. Secretary of State John Kerry announced an internal review into claims that hundreds of young Israelis were being barred from entering the U.S. for political reasons. An initial investigation found that the rejection rate of visa applications for young Israelis ages 21–26 had doubled, from 16 percent  in 2009 to 32 percent in 2014.  U.S. Ambassador to Israel Dan Shapiro stated that the visa crisis was close to coming to an end several days later.

It is anticipated that both governments will finalize procedures and U.S. federal agencies will begin to accept E-2 visa applications for Israelis soon.

Israeli nationals seeking U.S. visas based on international trade may apply under the E-1 trader visa category pursuant to the currently existing U.S.-Israel trade treaty.

News in Brief

December 1st, 2014

DED Extended for Eligible Liberians in the U.S.: USCIS announced a six-month automatic extension of EADs for Liberian nationals covered under Deferred Enforced Departure (DED) following President Obama’s announcement to extend DED through September 30, 2016, for qualified Liberians and those individuals without nationality who last habitually resided in Liberia. The automatic extension of existing EADs until March 30, 2015, allows eligible Liberian nationals to continue working in the United States while they file their applications. The extension also gives USCIS time to process and issue the new EADs.

TPS Extended for Nationals from Sudan and South Sudan: DHS extended the designation of Sudan and South Sudan for Temporary Protected Status (TPS) for 18 months, from 11/3/14 through 5/2/16. Rules about re-registration and initial applications are provided at http://www.uscis.gov/tps.

Settlement Reached in Immigration-Related Employment Discrimination Claim Against United Continental Airline:  The Office of Special Counsel reached a settlement with United Continental Holdings Inc. in which the airline agreed to pay $215,000 and create a backpay fund, after investigations found it requested lawful permanent residents, but not U.S. citizen employees, to complete additional Forms I-9 and provide additional proof of employment eligibility.

USCIS Using Blue Instead of Red Ink for Many Stamps:  Employers, when examining employment verification documents, are advised that as of July 1, 2014, USCIS began using blue ink for many of its secure stamps. The older secure red ink was retired and is no longer used by USCIS.

Consular Revocation of Visas After U.S. Entry:  Reports have emerged that some nonimmigrant visa holders already in the U.S. have been contacted by consular officers and told that their visas have been cancelled and/or revoked. Contact your immigration attorney if you have been so advised by a consular post.

Registration for 2016 Diversity Lottery Open Until 11/3/2014:  The 2016 Diversity Lottery Visa Program (DV-2016) opened on October 1 and closes at noon (EST) on 11/3/14. Applicants from countries with historically low rates of immigration to the United States can now register using d States. For fiscal year 2016, 50,000 diversity visas (DVs) will be available.

Applicants who are selected in the lottery (“selectees”) must meet simple, but strict, eligibility requirements in order to qualify for a diversity visa. Selectees are chosen through a randomized computer drawing.

entry the electronic DV entry form (E-DV) at www.dvlottery.state.gov.

 

 

Current Trends and Future Visa Number Prognostications

November 26th, 2014

The new fiscal year began on October 1, and with it came the annual infusion of visa numbers allocated to the various preference categories that comprise the system for immigrant visa availability under U.S. immigration law. Recently, Charlie Oppenheim, Chief of the State Department’s Visa Control and Reporting Division, provided his analysis of current trends and future projections beyond the basic visa availability updates provided in the monthly Visa Bulletin.

On the employment-based preference side, where there are 140,000 visas allocated annually, backlogs have plagued the system for years and years, in part because not only is the principal foreign national counted against the numbers of visas allocated but also dependent family members. (About 45 percent of the overall numbers are used by principals). Oppenheim reports that the worldwide employment-based third preference (EB-3) (for skilled workers, professionals, and other workers) will move faster in the coming months, as will EB-3 India. But, retrogression for Indian nationals who are eligible for EB-2 (members of professions holding advanced degrees or persons of exceptional ability) appears to be imminent, and could happen as early as November with a cut-off date in 2005. Once this happens, EB-2 India is not likely to advance again until June 2015. A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. The wait for employment-based immigrant visas for India continues to be long — five to eleven years. The Philippines, another severely backlogged country, is however experiencing lower demand. The cut-off date for the EB-3 and “Other Worker” categories is now the same as it is worldwide, 10/01/2011.

Mr. Oppenheim also reports that the EB-4 preference category, used by Special Immigrants — which includes G-4s applying for green cards, special juvenile immigrants, religious workers, certain Iraqis, and broadcasters, among others — could have a cut-off date of August or September of each year going forward.  In practice, this will mean that these intending immigrants will have to wait one to two months to file their cases if they wait to the end of the fiscal year.

EB-5 immigrant investor visas, which have become increasingly popular, for the first time became “unavailable” for Chinese nationals in the final month of the fiscal year ending September 30.  The category is now current. This marked the first time since 1990, when the EB-5 category was first established, that EB-5 visas were unavailable for any country and the first time for the Chinese. No other country was affected by the backlog. Oppenheim predicts that the EB-5 category for China will remain “current” through May or June 2015.  This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. Thereafter, Chinese nationals should expect significant backlogs in this visa category, which could impact dependent children who turn 21 during the pendency of the case.  It is expected that all other countries will remain current for the foreseeable future.

On the family side, Mr. Oppenheim reports that the family-based second preference (F-2) (immigrant visa petitions for spouses and children, and unmarried sons and daughters of permanent residents) will see forward movement. He advised that the F-2 category will continue to move about one month per month.  F-4 (siblings of US citizens) continues to be significantly backlogged, with the current wait 12 years and more than 20 years for the Philippines.

Few Appealed L-1A Managerial/Executive Cases are Successful; Review of Appeals for New Office Petitions Reveals Common Fatal Flaws

November 24th, 2014

A recent review of more than 100 L-1A intracompany transferee petitions in 2013 denied by the USCIS and subsequently appealed administratively reveals that only a handful of cases were ultimately approved. Among petitions for new office extensions, the following are some common fatal flaws cited by the government’s Administration Appeals Office: (1) contradictory evidence in the record, including organizational charts that were inconsistent; (2) managers and executives spending too much time doing the actual work and not managing or directing; (3) lack of evidence of personnel or staff to perform nonqualifying (i.e., nonmanagerial or nonexecutive) duties; (4) vague or overly broad job descriptions; and (5) insufficient evidence to demonstrate how the business will support the manager or executive in the year to come. Many of these same issues derailed initial new-office L-1A petitions. Given that new office L-1A extensions are closely scrutinized as are initial petitions, and request for evidence (RFE) rates have been upwards of 40 percent, employers are advised to carefully prepare and review supporting documentation with these pitfalls in mind.

NIV and IV Application Fees Change, Effective September 12

November 21st, 2014

Nonimmigrant and immigrant visa application fees paid to the U.S. Department of State (DOS) for certain visa categories changed on September 12, 2014. DOS advises that all visa applicants must pay the fee amounts in effect on the day they pay, with the exception of immigrant visa application processing fees paid domestically to the National Visa Center, which will be effective as of the date of billing. Fees that decreased are not refundable. If,  however, a nonimmigrant visa fee was paid before September 12, 2014, and the visa interview is on or before December 11, 2014, the applicant does not have to pay the increased difference between the new and old fee amounts. If, however, the visa fee was paid before September 12, 2014, and the visa interview is on or after December 12, 2014, the applicant will have to pay the difference. For more specific information, see the “Fees for Visa Services” section of the DOS website.

Administration Promises Fixes to Immigration System in Lieu of Comprehensive Immigration Reform

November 17th, 2014

The Obama Administration has conceded that comprehensive immigration reform will not be enacted in the foreseeable future and thus has promised to use executive authority through regulatory reform and other mechanisms to address some of the urgent problems facing our immigration system. While the President announced that such measures would be initiated by the end of August, more recently the Administration decided that any executive actions will have to wait until after the November 6 mid-term elections for fear that pro-immigration candidates as well as Democrats in general would be penalized at the polls for his actions.

Under already-existing authority, the President can pursue a number of actions that could help families and businesses that rely on foreign personnel. Some of these measures could include (1) extending DACA relief to parents of those young adults who have already received DACA relief; (2) granting work authorization and “Deferred Action” to undocumented parents of U.S. citizen children; and (3) counting only principal visa applicants against visa quotas (rather than counting both principals and their derivative family members) in an effort to clear up extreme backlogs for green cards that stretch into decades for certain categories.

In a new study released by the American Immigration Council, the authors of Executive Grants of Temporary Immigration Relief, 1956–Present, found that since at least 1956, every U.S. president has granted temporary immigration relief to one or more groups in need of assistance. The publication includes a chart of 39 examples that span actions large and small, taken over many years, sometimes by multiple administrations. Some presidents announced programs while legislation was pending. Other presidents responded to humanitarian crises. Still others made compelling choices to assist individuals in need when the law failed to address their needs or changes in circumstance.

Stay tuned.

Update on Central American Border Crossers

November 17th, 2014

While the news media has now focused their attention on other news, the plight and circumstances of children and families fleeing violence in Central America continues unabated. Regrettably, the Obama Administration continues to direct its agencies to deport children and families as quickly as possible, making them a priority for speedy proceedings. As of early October, hundreds of women and children have been deported on an expedited basis, and some deportees — even child deportees — have been murdered upon their arrival back home. The Administration’s current detention and removal policies have been widely denounced as both inhumane and unconstitutional, and in violation of our country’s legal and moral obligations under the 1951 Refugee Convention.

 

As previously reported, the American Immigration Lawyers Association, among other groups, has stepped in to provide pro bono legal representation during the last three months, primarily at one of the detention facilities in Artesia, NM.  Attorneys with long histories of representing clients at remote detention facilities have described Artesia as not just the worst situation they have ever encountered, but something far worse than anything they could have imagined.  Their client interviews reveal that hundreds if not thousands of mothers and children have suffered domestic violence, sexual assault, gang violence, and other atrocities protected under U.S. asylum and humanitarian law. Yet, these individuals most likely will be repatriated to their home countries.  Based on hundreds of interviews with detained families that these expert lawyers have conducted, it is clear that the center at Artesia is a due process failure and a humanitarian disaster, and it should be closed immediately.

Meanwhile, the Department of Homeland Security has continued its expansion of family detention, including a new facility in Karnes, Texas, with at least 500 beds, and a planned 2,400-bed facility in Dilley, Texas, expected to open in early November.  The South Texas Family Residential Center will be the fourth facility DHS is using to increase its capacity to detain and expedite the removal of adults with children who illegally crossed the Southwest border. Within months, DHS will be detaining nearly 4,000 mothers and children, a 40-fold increase in the use of detention on immigrant families.

To put the current numbers of unaccompanied minors into perspective, an estimated 60,000 children arrived in FY14; approximately 25,000 arrived in FY13, some 14,000 in FY12, and an average of less than 7,000 a year since 2003. Of the 60,000 unaccompanied minors who entered in FY14, many were placed with family members but those who came with their mothers are generally detained.

News in Brief

October 31st, 2014

New Director of USCIS Sworn In: On July 9, 2014, Leon Rodriguez was sworn as the director of U.S. Citizenship and Immigration Services (USCIS). Born in Brooklyn, Rodriguez comes to USCIS with a broad legal background and will lead the nearly 18,000-employee agency charged with administering the nation’s immigration system. He previously served as the director of the Office for Civil Rights at the Department of Health and Human Services.

 

Changes to Dates of Birth and Names on Certificates of Citizenship: USCIS has issued policy guidance relating to changes of dates of birth and names per court orders. Recognizing that the dates of birth of children born abroad are not always accurately recorded in the countries in which they were born, and that in some adoption cases, the child’s adoptive parents may obtain evidence of a mistake in the name or date of birth (DOB) reported by the foreign jurisdiction, USCIS will issue an initial, or replacement, Certificate of Citizenship with a new DOB or with a name other than that on a foreign record of birth if a U.S. state court order recognizes the new DOB or orders the legal name change.

 

H-1B Cap Subject Cases Still Pending at USCIS: USCIS reached this fiscal year’s H-1B cap on April 7, 2014. Shortly thereafter the Vermont and California Service Centers (VSC and CSC) began to process, select, review, and adjudicate H-1B petitions for work that will commence on October 1. Some cases have been issued a request for additional evidence (RFE). The VSC reported earlier in the summer that it hoped to adjudicate all H-1B cases still pending due to an RFE by mid-August.

 

Court of Appeals Blocks Arizona’s Ban on Driver’s Licenses for DACA Recipients: The U.S. Court of Appeals for the Ninth Circuit recently held it could identify no legitimate state interest that was rationally related to Arizona’s decision to treat DACA (Deferred Action for Childhood Arrivals) recipients disparately from other noncitizens who are permitted to use their work authorization cards as proof of their authorized presence in the United States when applying for driver’s licenses. Reviewing a district court’s denial of a preliminary injunction, the Ninth Circuit remanded the case back to the lower court with instructions to enter a preliminary injunction prohibiting defendants from enforcing the current policy of the Arizona Department of Transportation to refuse DACA recipients’ EADs as proof of their authorized stay in the United States.