Renewing DACA

May 12th, 2014

Deferred Action for Childhood Arrivals (DACA) began June 15, 2012. From June 15, 2012 until August 15, 2012, U.S. Immigration and Customs Enforcement (ICE) granted DACA relief until USCIS started receiving requests. Those early cases will soon expire and individuals must renew their DACA status, work authorization, and receive an approval prior to expiration of the initial period of deferred action to avoid a lapse in employment authorization or accrual of unlawful presence. Because only a small fraction of the DACA population was granted relief during this period, special rules governing this class have been issued by USCIS. See ICE-Granted DACA Renewal Guidance,

www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/ice-granted-daca-renewal-guidance.

For the vast majority of DACA recipients, however, the initial two-year grants of DACA will begin to expire in September. Consequently, USCIS is now preparing for that renewal process so that eligible individuals can request and receive an extension of their deferred action without experiencing any lapse in their lawful presence or work authorization.

In late May 2014, USCIS will release a new dual-use Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for both initial and renewal requests. Those seeking to renew must wait until the new form and guidelines are published. However, in the meantime, USCIS has provided advance information on what to expect.  First and foremost, USCIS is providing advance notice 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. USCIS anticipates making a determination before the expiration date. If the renewal is not approved in time, the individual will accrue unlawful presence. If, however, the renewal is timely filed – in other words, at least 120 days in advance –  and USCIS delays making a decision, a temporary extension of status may be granted prior to adjudication of the case to avoid accruing unlawful presence. Second, USCIS advises that only new documentation pertaining to removal proceedings or criminal history not previously submitted should be filed with the renewal request.

Initial applicants can still use the current form until the new version is available.

Immigration Reform: What’s Happened and Where are We?

May 5th, 2014

Across America, millions of immigrants and their families, businesses, and communities are waiting for – and calling for – immigration reform, and yet Congress continues to fail to act. With some 11 million undocumented immigrants living and working in the United States, most of whom already have deep roots in this country including strong family ties, and agreement that wholesale deportation makes no sense, public opinion is now firmly in favor of legalizing the undocumented. Poll after poll show that two out of three American voters support legalization and a way for these immigrants to become citizens.  Meanwhile, businesses continue to struggle to obtain visas for needed foreign national employees, with tens of thousands of applications for potentially job-creating immigrants thrown out just this month because insufficient visas are available for professional workers. And, global entrepreneurship in this country languishes because there are few work-related avenues under the current system to accommodate the world’s most talented. In the last 10 months since the Senate passed sweeping reform of America’s immigration system, nothing much has happened.

 

A Recap of What’s Happened

 

On June 27, 2013, the Senate voted 68-32 in favor of S.744, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” the most sweeping overhaul of the nation’s immigration and border control laws in nearly 30 years.  All eyes then turned to the Republican-controlled House of Representatives, which had been deliberating on a series of piecemeal reform measures, eschewing the comprehensive approach adopted by the Senate and favored by the Administration. Indeed, House committees passed four reform bills. At that time, advocates hoped that agreement between the Senate and House on process and content could be reached at least informally before the 2013 August recess.  It did not.

Soon after the recess, however, Congress returned to Washington and was embroiled with the Administration and consumed by the budget and the government shut down. Nevertheless, in early October in an effort to jumpstart stalled comprehensive immigration reform deliberations, the House Democratic leadership introduced its version of a comprehensive reform (CIR) bill modeled after S.744. The introduction of the bill was part of an orchestrated series of events that took place across the country to remind the public that immigration reform remained unfinished. Its introduction was more symbolic than realistic given the Republican House members’ preference for piecemeal legislation and a refusal to vote for any measure that included a pathway for citizenship for the undocumented. The stalemate on immigration continued and by mid-October the chance of CIR becoming law became about zero percent.

By early 2014, CIR advocates on both sides of the aisle began to moderate their positions on a “pathway for citizenship” and started discussions about other ways to regularize the undocumented population without a pathway for citizenship, and at the same time ensuring that whatever scheme was enacted did not create a second-class immigrant system. One solution advocated was to add more slots in the business and family visas categories for those who legalize, rather than create a new visa or path.

Meanwhile, in light of record levels of deportations under his Administration – some 400,000 people a year and far more than under President Bush – President Obama ordered a review of deportations. House Republicans then latched onto the idea that President Obama could not be trusted to carry out the law. Criticizing him for reviewing his deportation policies and for implementing through executive orders certain limited forms of administrative relief, including DACA, “parole in place” for certain immediate family members of military personnel, and prosecutorial discretion, House Republicans balked at further discussions on CIR and have essentially frozen in place a dysfunctional system.  The stalemate continues.

 

Where We Are 

 

With a bit more than three months left before the summer congressional recess and then fall midterm elections, Congress has little time left in its congressional calendar to enact immigration reform.  First, most of the contested primaries – where pro-immigration reform positions are most controversial especially for conservative Republicans – must be concluded so that victors can feel free to take locally unpopular positions on immigration without fear of reprisals. Second, agreement must be reached at least in principle by the leaders in both chambers.  Even the most optimistic among us are beginning to become realists on the prospects of immigration reform and are turning again to the White House to explore further forms of administrative relief.

There are indeed numerous steps the Obama Administration can take by executive order or regulation to temporarily alleviate inhumane policies for the undocumented or create opportunities for the highly skilled. For example, the Administration is being urged to exempt other immigrants from deportation beyond the “DREAMer” youth and to extend work authorization to the spouses of certain high skilled workers. And, the Administration can take a number of steps to increase the opportunities for entrepreneurs, both foreign- and native-born, in an effort to accelerate expansion of the US economy and creating jobs. However, the President is currently resisting administrative changes and has said that only Congress can fix the broken system.

One way or another, there must be some changes to the immigration system, either Band-aids or a cure. Regrettably, this optimist expects some Band-aids but continues to hope for a cure.

H-1B Cap Reached; 172,500 Petitions Received by USCIS

April 28th, 2014

USCIS announced that it received approximately 172,500 H-1B petitions for professional workers during the FY2015 filing period and that it completed the computer-generated random selection process (commonly known as a “lottery”) on 4/10/14 to meet the 65,000 general-category cap and the 20,000 cap under the advanced-degree exemption. Last year, 124,000 H-1B petitions were received by USCIS. This is the second year in a row since the economic downturn in 2008 that the H-1B cap has been met on the first day of filing.  Clearly, there is serious flaw in the laws governing H-1B visas, which, instead of responding to market and business needs, are fixed by a cap set more than 20 years ago.

USCIS announced that H-1B petitioners will be notified by regular U.S. regular mail whether their petitions have been selected for adjudication. Premium-processed cases can expect to obtain e-mail notification of acceptance, and many petitioners already have received such e-mails, although the adjudication of premium-processed H-1B cap cases will not begin until April 28, 2014.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  These include petitions for physicians with certain J waivers; petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations; and those petitions filed on behalf of H-1B workers who previously have been counted against the cap.

News In Brief

March 29th, 2014

DHS Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas Sworn In: On December 23, Jeh (pronounced “Jay”) Johnson was sworn in as the fourth Secretary of Homeland Security. Prior to joining DHS, Secretary Johnson served as General Counsel of the Department of Defense from 2009 to 2012 during the first Obama Administration. His career includes extensive service in national security, law enforcement, and as an attorney in private corporate law practice. Also on December 23, USCIS Director Alejandro Mayorkas was sworn in as Deputy Secretary of Homeland Security, the second highest ranking official at DHS.

New Passport Office Portends Faster Service:  DOS’s Washington Passport Agency  recently relocated to a new space in downtown Washington, D.C., and with its new location comes more efficient  service. The agency, however, handles only urgent cases for those who need passports within two weeks or a foreign visa within a month.  The new building has 90 percent more capacity to move people through, reduces the wait to 30 minutes, and in some cases can provide same-day service for new passports.

California Supreme Court Finds Undocumented Immigrant Can Be Admitted to State Bar:  The California Supreme Court concluded that there is no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California, and held that the applicant in the case before it possesses the requisite good moral character.

Long-Pending DACA Case? Check to See If Certain Factors Apply

March 28th, 2014

A recent, informal survey among the immigration bar reveals that many long-pending (more than six months) DACA cases involved one or more of the following circumstances:

  • The requestor had a criminal history – numerous cases involved DUI-related incidents, juvenile adjudications, gang issues, and drug and theft offenses;
  • The requestor attended an online school or was homeschooled;
  • The requestor had previously been in removal proceedings or was in removal proceedings at the time of the DACA request;
  • The requestor had a petition or an application for other relief pending;
  • The requestor departed the United States for a considerable period of time either during or prior to the continuous residence period;
  • The requestor provided what the attorney considered to be a small amount of evidence to support either continuous residence during the relevant period or physical presence on June 15, 2012.

If any of these factors apply to your case, this may explain the longer processing times, even though these factors may not reflect official USCIS policy decisions or adjudication trends.  Cases pending for a year or more can been elevated to the USCIS Ombudsman’s Office for assistance.

Immigrant Visa Availability: What to Expect in the Coming Months

March 21st, 2014

The family second preference for spouses and children of lawful permanent residents (F2A), which advanced significantly in August 2013, has retrogressed for Mexico to 04/15/2012, as posted in the March Visa Bulletin. This means that those applicants who applied to adjust their status during the last six months but who do not have their cases approved before March 1 will have to wait to obtain their green cards until they reach their priority date. The State Department also advises that because there are many applicants with priority dates earlier than any listed cut-off dates, not everyone who reaches a priority date will receive a visa.(The F2A worldwide preference category is expected to retrogress by the summer.)

As the visa allocations enter the sixth month of the fiscal year, the March Visa Bulletin provides projections for the next several months based on current applicant demand patterns, with the caveat that projections are not guaranteed and “corrective” action may be required to maintain visa number use within the applicable annual limits. Nevertheless, those categories with a “current” projection are likely to remain so for the foreseeable future.

 

Family-sponsored categories (potential monthly movement)

Worldwide dates:

F1: Two to four weeks

F2A: No forward movement is expected

F2B: Four to seven weeks

F3: Four to six weeks

F4: Two or three weeks

 

Employment-based categories (potential monthly movement)

EB-1: Current

EB-2:

Worldwide: Current

China: Three to five weeks

India: No forward movement

EB-3:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date, applicant demand, particularly for adjustment of status cases, can be expected to increase significantly. Once applicant demand materializes the cut-off date could be significantly impacted. Little, if any, forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

EB-4: Current

EB-5: Current.  However, insiders worry that a cut-off date for China could be established this summer or early fall.

Senators Continue to Pressure DHS and DOS to Grant TPS to Filipino Nationals

March 14th, 2014

A bipartisan group of 19 senators sent a letter to Secretary of State John Kerry urging that the State Department (DOS) recommend the Philippines for temporary protected status (TPS) designation as a result of the devastation caused by Typhoon Haiyan three months ago. DOS is part of interagency discussions underway about whether to grant TPS.  A similar congressional letter was sent to the Department of Homeland Security (DHS) in November, and the government of the Philippines formally requested TPS designation in December.

The senators note that more than 6,000 people were killed in the storm, that more than one million homes in the Philippines were damaged or destroyed, and that more than four million people were displaced. In total, according to the U.S. Agency for International Development (USAID), 16 million people in the Philippines were affected by Typhoon Haiyan – nearly one out of six people in the country.

The United States currently provides TPS or deferred enforced departure (DED) to over 300,000 foreign nationals from a total of nine countries.  The senators cite several instances in which the U.S. granted TPS to citizens of other countries that have been struck by severe natural disasters, including Honduran and Nicaraguan citizens after Hurricane Mitch in 1999; Salvadorans after the 2001 earthquakes; and Haitian nationals after the 2010 earthquake.  Other countries have been granted TPS or DED as a result of civil unrest, including Liberia, Somalia, Sudan, South Sudan, and Syria. Noting that the situation in the Philippines meets the statutory requirements for granting TPS as the law was applied to these other countries, the senators request equal consideration to the Philippines.

While under the immigration laws, the executive branch grants TPS or relief from removal, Congress has also provided TPS legislatively. Indeed, legislation that would grant TPS to Filipinos (H.R. 3602, the Filipino Temporary Protected Status Act of 2013) has already been introduced.

More on Stateside Provisional Unlawful Presence Waivers and “Reason to Believe”

March 7th, 2014

Just about one year ago, USCIS began implementing a program permitting certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. Under the program, if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence, the agency would not approve the waiver. For months, concerns have been raised that USCIS, taking a very broad approach to the standard “reason to believe,” has been unnecessarily denying I-601A provisional waivers. A common class of “reason to believe” denials has been those based on criminal incidents that do not render the foreign national inadmissible.

In a recent field memo, USCIS advises and reminds its officers that all evidence in the record should be carefully reviewed to make sure officers are not inadvertently excluding someone from the process based on a minor infraction, a petty offense, or one that falls under the youthful offender exception. Furthermore, the memo reminds officers that they should not find a “reason to believe” that the individual may be subject to inadmissibility solely on account of such offense, and should continue to determine whether the applicant meets the other requirements for the provisional waiver, including whether he or she warrants a favorable exercise of discretion.

H-1B Professional Visas – Preparation Begins for April Filings

March 3rd, 2014

Once again it is H-1B filing season, and, once again USCIS is likely to receive the full allocation of visa petitions in the first week of filing commencing April 1.  Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2015, for work that commences on October 1, 2015 — more than 18 months from now!

Visas for professional specialty workers (H-1Bs) are, as they have been, capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules.

While some H-1B petitions can be filed at any time because they are exempt from the numerical cap, the vast majority of H-1B applicants in business are subject to the cap.  Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. Employers and their employees should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.

Finally, now is also a good time for employers to review their company’s H-1B public access files to ensure that files are complete and in full compliance, as well as to determine that valid employer-employee relationships have been maintained.

Adjudication of Stand Alone I-130s Delayed; USCIS Seeks to Correct by May 2014

February 14th, 2014

USCIS is currently taking an average of 10 months to process stand-alone I-130 petitions. In order to speed up these processing times, USCIS is transferring some cases from its National Benefits Center to various USCIS regional centers. If your case is transferred, you will receive a notice in the mail and your case should be adjudicated within 60 days of the transfer date. By May 2014, USCIS expects I-130 processing times to return to the normal processing time of five months