Immigration and Nationalty Law

 

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News and Notes

November 18, 2016

On November 18, 2016, U.S. Department of Homeland Security issue a Final Rule titled "Retention of EB-1, EB-2, EB-3 Immigrant Worker Program Improvements Affection High-Skilled Workers".  The Rule took effect on January 17, 2017 and includes the following changes among others:

Employment Authorization for Employment-Based Nonimmigrants

(1)     The Rule permits one year of employment authorization for a nonimmigrant who (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa (IV) petition; (3) does not have an IV immediately available; and (4) can demonstrate compelling circumstances, although the Rule provides no guidance on the latter requirement.  This benefit was previously limited to H-1B visa holders.

(2)    Family members of the principal alien (PA) are also eligible and may apply concurrently with the PA although their applications cannot be approved until the PA's application is approves and the duration may not be greater that that of the PA. 

(3)    The PA and family members may apply for renewal so long as the PA is still the beneficiary of an approved EB-1, EB-1 or EB-3 IV petition and either (1) an IV is still not available and there are still compelling circumstances; or (2) an IV will likely be available within one year based on the PA's priority date and the current Visa Bulletin.

Automatic Revocation of Employment Based IV Petitions

The Rule amends the regulations so that an employment based IV that has been pending for 180 days or more or where and adjustment of status application has been pending for 180 days or more will no longer be automatically revoked based on withdrawal of the petition or termination of the petitioner's business.  Such petitions will continue to be valid for various purposes including retention of priority dates, H-1 portability, and extensions under AC-21

Period of Stay Grace Periods

This change makes it mandatory that individuals in E-1, E-2, E-3, H-1B, L-1 and TN status and their dependants be admitted with a ten day grace period before and after the petition validity.  The provision also authorizes a grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1b1, L-1 and O-1 nonimmigrants whose employment has ended before the end of the authorized period of stay.  This is a significant change since under prior regulations and beneficiary immediately fell out of status as soon as the authorized employment ended.

AC21 H-1B Extensions

AC21 permitted extensions of H-1B status beyond the six year limit under certain circumstances.  Prior to the Rule there was uncertainty as to the timing of filing a petition to extend beyond the six year maximum period of stay.  Generally, a one year extension is available to nonimmigrants for whom a labor certification (LC) or IV petition has been filed if more than 365 days have elapsed since the filing.  The Rule makes clear that the petition may be filed before the full 365 days have elapsed as long as the LC or IV petition was filed at least 365 days prior to the date the new petition will take effect.  The petition may request, in addition to the one year extension, any time remaining in H-1B eligibility and any recapture time. 

Portability under AC21

Under AC21, an applicant for adjustment of status that has be been pending for 180 days or more with an approved IV petition or one that has been pending for 180 days of more may accept a new offer of employment or engage in self employment so long and the new employment is in the same or similar occupational classification.  The new Rule now defined same or similar classification unlike the prior regulations. Moreover the new Rule provides for a new Supplement J to the I-485 application for adjustment of status in which the applicant will prove that he/she has a valid offer of employment in a same or similar job classification as the one on which the LC or IV petition was based.  

Employment Authorization Document Validity

Under the prior regulations employment authorization ceased upon expiration the validity on the EAD regardless of whether a timely extension was filed.  The new Rule now provides for  an automatic extension of employment authorization for 180 days after filing of an extension application.  The I-797 filing receipt plus the expired card provide documentation of employment eligibility for I-9 purposes. Howevr the Rule also eliminates the requirement that USCIS adjudicate EAD applications within 90 days.  It lso eliminates the requirement that USCIS issue interim EADs where the adjudication takes longer than 90 days. 



May 6, 2016


On March 11, 2016 the Department of Homeland Security (DHS) published it's new rule amending its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the rule provides as follows:


  • Accreditation Requirement:  The degree must be conferred by an institution of higher education accredited by the U.S Department of Education and approved to accept foreign students by DHS' Immigration and Customs Enforcement;
  • STEM Definition:  The rule clarifies which degree programs qualify as "Science, Technology, Engineering and Math" degrees based on Department of Education Instructional Programs taxonomy;  The complete list can be found at http://www.ice.gov.sevis
  • Multiple STEM Degrees:  The rule clarifies that students receiving multiple STEM degrees may apply for subsequent STEM OPT extensions;
  • Previously Issued STEM Degrees:  Students may use STEM degrees awarded in the prior ten years to apply for a 24 month STEM OPT extension even if the most recent degree is not a STEM degree so long as the prior degree had not been the basis for a STEM extension;
  • Formal Training Program:  STEM employers must incorporate a formal training program with concrete learning objectives and proper oversight.  The student and employer must complete a new form I-983, Training Plan for STEM OPT Students, and submit it to the Designated School Official (DSO) before the OPT extension can be approved:
  • Obligation to Report Material Changes:  Employers and students must report material changes in the training plan to DHS:
  • No Adverse Effect on U.S. Workers:  The rule requires that the terms and condition of an F-1 student's training be on a "par" with U.S. workers in the same job and location and further that the student not replace a U.S. worker;
  • 20 Hour per Week Requirement:  Students must work a minimum of 20 hours per week:
  • Period of Unemployment: Students will still be permitted a limited period of unemployment:
  • Transition form 17 to 24 Month STEM OPT:  The rule provides that students currently holding a 17 month EAD may, in certain circumstances, apply for an addition 7 months so long as their EAD has at least 150 of remaining validity on the date the I-765 is filed and they apply between May 10, 2018 and August 8, 2016.


The final rule becomes effective May 11, 2016


February 16, 2015


U.S. District Court in Texas Enjoins key Provisions of President Obama's Executive Action on Immigration Reform


In a lengthy opinion, Judge Andrew S Hanen, of the United States District Court for the Southern District of Texas enjoined the Department of Homeland Security from implementing the provisions of DAPA which allows certain benefits to undocumented immigrants who are parents of U.S. citizens or lawful permanent residents and also the expansion of the class of immigrants covered under the DACA program. 


November 20, 2014


The President announced a series of executive actions to crack down of illegal immigration at eh border, to prioritize removal of felons rather than families and to require certain undocumented immigrants to pass a criminal background check and pay taxes in order to remain in the U.S. 


Key Provisions

Expand Deferred Action for Childhood Arrivals (DACA)

  • removed upper age limit by extending benefits to those born before June 15, 1981, the current age limit
  • requires continuous residence since January 1, 2010 rather than current date of June 15, 2007


Provide deferred action for parents of U.S. citizens

and lawful permanent residents (DAPA)

  • Must be living in the U.S. on November 210, 2014
  • have continuous residence in the U.S. since January 1, 2010
  • must be parent of U.S. citizen or lawful resident born before November 20, 2014
  • is not an enforcement priority (national security threat, convicted felons and illegal entrants apprehended at border)  


Expanded Provisional Waivers


Provisional waivers allows certain prospective immigrants to remain in the US while an application for a waiver of inadmissibility is applied for.  The prior rule required the application to be applied for at the U.S. consulate resulting in lengthy delays and uncertainty. 

  • Sons and daughters of U.S. Citizens
  • Spouse and sons and daughters of lawful permanent residents
  • currently, provisional waiver is only available to spouse and minor children of U.S. citizen
  • clarifies meaning of "extreme hardship" required for waiver


Modernize  improve and clarify immigrant and nonimmigrant programs to grow economy and create jobs by:

  • better allocate immigrant visas
  • modify Visa Bulletin system to more simply and reliably determine visa availability
  • provide clarity in adjustment portability to allow for natural career progression
  • clarify standards for national interest waiver (NIW) may be granted to inventors, researchers and founders of start-up businesses
  • authorize parole to eligible inventors, researchers and founders of start-ups businesses who have (1) been awarded substantial U.S. investor financing or (2) otherwise hold promise of job creation through development of new technologies or cutting edge research
  • Finalize work rules for spouses of certain H-1B visa holders
  • expand and extend use of optional practical training (OPT)
  • Bring clarity to "specialized knowledge" in L-1B program

                                                                                   

June 27, 2013

Senate Passes S. 744, the Border Security, Economic Opportunity, and Immigration Act
 
Comprehensive immigration reform was passed out of the senate on a vote of 68 to 32 and sent to the House on June 27, 2013.  The bill, if it becomes law, would make significant changes to the current immigration system including:
 
  • Providing for legalization of currently undocumented immigrants by giving them "Registered Provisional Immigrant" status which would lead to a Green Card in 10 years and U.S. Citizenship three years after that. 
  • Enhanced border security through doubling the number of Border Patrol Agents; completing 700 miles of pedestrian fence along the southern border; installing new security technologies; Implementing a mandatory employment verification system; and establishing a visa tracking system;
  • Create a new merit based permanent immigration system with a variable cap of 120,000 to 250,000;
  • Create a new W visa category for low skilled workers with a maximum cap of 200,000 visas
  • Raise the cap on H-1B visas to 115,000 plus 25,000 for advanced degree workers;
  • Create an agricultural guest worker program with an initial cap of 112,000;
  • Exempt dependants from the 140,000 cap on employment based immigrant visas and remove numerical caps for the EB-1 category, PhD holders and STEM graduates with at least a Master's degree;
  • Move spouses and children of Permanent Residents into the Immediate Relative category thus exempting them from the cap and per country limits;

 

While the Senate vote sends a strong signal in favor of Comprehensive Immigration Reform, it's future in the House is less certain  At present, the House is considering piecemeal legislation to address each of the main areas addressed by S.744.  Stay tuned.
 

 

June 26, 2013

 

Janet Napolitano, U.S. Secretary of Homeland Security Issues Statement on Effect of Supreme Court's DOMA Decision on the Nations immigration laws

 

In a statement issued on the same day as the historic Supreme Court's decision on DOMA, Secretary Napolitano issued the following statement:

 

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws".

As a result, those members of the LGBT community who have been excluded from petitioning for  spousal benefits for a same sex partner will now be able to do so.

 


JJune 26, 2013

 

Supreme Court Declares Section Three  of the Defense of Marriage Act (DOMA) Unconstitutional

 

Section three of DOMA defined marriage as a union between a man and a woman.  In a five to four decision the Court held that the section violated the equal protection and due process clauses of the constitution thus opening the way for Gay, Lesbian and Transgendered people to seek federal benefits based on a legal same sex marriage.  The ruling however did not go so far as to establish a right to same sex marriage, leaving that up the individual states based on the historic right of the states to establish domestic relation laws.  The ruling affects a wide rage of benefits including not just taxes, with which the case before the Court was concerned, but also employment benefits and immigration.  Click on the following link for the full opinion:  http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf  

 

In a related case, decided on the same day as the DOMA decision, the Court held that Proponents of Proposition 8, a California ballot initiative that amended the state constitution to define marriage as between a man and a woman, did not have legal standing to appeal a lower court decision finding Proposition 8 unconstitutional.  The decision allowed same sex marriage to again go forward in the state of California.  Click on the following link for the full opinion:  http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf

 


February 12, 2013

 

Comprehensive Immigration Reform

Although nothing has been finalized, it appears that both sides of the isle in the Senate are finally talking about fixing the broken immigration system.  On January 28, 2013, a bipartisan group of eight senators announced a plan for addressing Comprehensive Immigration Reform.  The plan consists of four main legislative pillars:

  • Creating a tough  but fair path to citizenship for those presently in the U.S. without authorization.   The path however would be contingent upon securing the border using a variety of means and instituting a positive enetry/exit system to combat and track overstays;
  • Improving the legal immigration system by developing a rational legal immigration system that addresses U.S. prosperity and eases the path to legally entering he US, reducing family and employment backlogs and providing for green cards for STEM advanced degree graduates of US universities;
  • Providing for a strong, fast, reliable and efficient employment verification system that would hold employers accountable for knowingly hiring those without employment authorization while at the same time protecting workers from discrimination;
  • Admitting new workers and protecting workers' rights by creating a legal and effective system to admit workers to the US including agricultural workers and lower-skilled workers as the economic conditions allow. 

         

On January 29, 2013, in  speech in Las Vegas, President Obama laid out his plan for immigration reform which was similar to the Senate plan and which called for strengthening existing enforcement laws, especially with respect to the hiring of undocumented immigrants; providing a path to citizenship for unauthorized immigrants; and overhauling the antiquated immigration system that still divides families.

While there is currently no proposed legislation, it is encouraging that a part of GOP has finally recognized that "self-deportation" and border fences with "barbed wire" are not the answer.  Stay tuned! 

June 18, 2012

 

On June 15, 2012, Janet Napolitano,  Secretary of the Department of Homeland Security announced a major policy shift with respect to certain young people who were brought to the United States as children and remained without the benefit of legal status.  The US government has estimated that some 800,000 children and young people fall into this category and are currently living in a state of limbo.  In many cases, young people have completed high school or college and yet have no prospects for a fruitful life in United States, are unable to legally obtain employment and continue to live in the shadows in fear of deportation.  Yet, many of these young people have no memories or only faint memories of their home countries and in many cases have no knowledge of the language.

At the outset, it must be made clear that the policy shift announced by Secretary Napolitano on June 15, 2012 provides no permanent relief.  Those eligible under the policy will receive no substantive right, immigration status or path to citizenship.  Rather, the change is an expansion of an existing policy that sets out the manner in which the Department of Homeland Security exercises discretion to effectively use its resources in enforcing country's immigration laws.  Those who meet the following criteria will be granted “deferred action” and thus will be spared being placed into immigration proceedings and facing deportation.  To be eligible, individuals must:

 

  • Have come to the United States before reaching the age of 16
  • Have continuously resided in United States for at least five years before June 15, 2012 and be physically present on that date;
  • Be currently in school, have graduated from high school, obtained a general education development certificate (GED) or be honorably discharged from US military service;
  • Have not been convicted of a felony offense or significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to national security or public safety;
  • Be 30 years of age or younger.

 

Those individuals who meet all of the necessary criteria will be granted deferred action for a period of two years which will be renewable pending a review to determine continued eligibility.  The practical effect of deferred action is that those eligible will not face the threat of being placed in removal proceedings or ordered deported from the U.S.   Individuals who are eligible will be able to apply for employment authorization from the US Citizenship and Immigration Services (USCIS) upon a showing of economic necessity. 

For those individuals currently in removal proceedings, Immigration and Customs Enforcement (ICE) has been directed by Secretary Napolitano to begin implementing the deferred action process no later than August 14, 2012 even in cases where there has been a final order of removal (deportation).   Similarly, for those individuals who are at least 15 years of age and not currently in proceedings, USCIS has been instructed establish a clear and efficient process for exercising prosecutorial discretion by deferring action for those individuals for a period of two years. 

By approximately mid-August 2012, USCIS and ICE can both be expected to issue guidance on the manner in which they will comply with Secretary Napolitano’s directive.  In the meantime, while the shift in policy is a welcome change for the many “Dreamers”, comprehensive immigration reform is needed to remedy many of the serious defects in the current immigration system.   

December 13, 2011

 

On November 29, 2011, the House of Representatives overwhelmingly passed H.R. 3012, The Fairness For High-Skilled Immigrants Act.  http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3012: While the act does not increase the overall number of immigrant visas available, it would eliminate the per-country cap for employment based visas by 2015 and would raise the cap for family sponsored immigrant visas from 7% to 15%.  The effect would be to drastically reduce the backlog in the Employment -Based second preference category (EB-2) for those born in India and China while possibly at the same time causing some backlogs for others, not currently subject to any backlogs.  In the Employment-Basedthird preference category (EB-3), already subject to significant waits, those from China and India will benefit, but the waits will still be lengthy for all.

 

By way of background, 140,000 immigrant visas are available for all Employment-Based categories.  Under current law, each country is limited to 7% of the available visas regardless of that country's population.  Thus, populous countries such as India and China have the same number of immigrant visas available as much smaller countries.

 

Before becoming law, the Senate will also have to pass the legislation.  While an identical bill has been introduced in the Senate, Senator Grassley (R-IA), long an immigration opponent,  has placed a hold on the legislation, thus its fate is uncertain, although he is being pressed by his colleagues to lift the hold in light of the significant bipartisan support for the measure.

 

 

August 18, 2011

 

The U.S. Department of Homeland Security announced today that it would soon issue agency-wide guidelines to ensure that enforcement actions focus on those considered most dangerous to the community.  Although DHS does not plan to categorically defer removal, persons who are not high priority targets for removal will have the opportunity to request prosecutorial discretion on a case by case basis. Cases that are considered low priority include persons with no criminal record who have been in the country since childhood, have strong community ties, are veterans or relatives of persons in the armed services, are caregivers, have serious health issues, are victims of crime or otherwise have a strong basis for remaining in the United States.

 

DHS also announced the creation of a joint committee with the Department of Justice (DOJ) that will review nearly 300,000 cases currently in removal proceedings to determine which ones are low priority and can be administratively closed in order to begin unclogging immigration courts.  This move is a significant assertion of federal authority over the immigration process in light of the rise of state legislative initiatives that seek to impose their own priorities on immigration enforcement.

 

Those undocumented immigrants not currently in immigration proceedings are cautioned against seeking to bring themselves to the attention of immigration authorities as there is no guarantee that prosecutorial discretion will be exercised in any particular case. 

 

 

June 29, 2011

 

The Board of Immigration Appeals (Board) has advanced family unity in its June 23, 2011 decision, Matter of Le. The Board's ruling has resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. while under age 21, is eligible to adjust to permanent resident status even after turning age 21. The Board concluded that the age of the child is ?fixed? at the time the child is admitted to the United States, rejecting the Department of Homeland Security?s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.

 

 

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