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.
Posts Tagged ‘USCIS’
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.
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.
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.
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.
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)
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)
China: Three to five weeks
India: No forward movement
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-5: Current. However, insiders worry that a cut-off date for China could be established this summer or early fall.
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.
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