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.
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.
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 IncludedJune 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.
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.
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 www.tsa.gov/tsa-precheck.
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.
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,
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.
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.
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.
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.