Seguritan US Immigration Articles

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

Filing for Adjustment Even if Visa Not Immediately Available

This October which is the start of fiscal year 2017, adjustment of status applications may be filed even if a visa number is not immediately available for the priority date of the applicant. The date of filing the application rather than the date when a visa number is available determines when to file.

This is good news to those who have been waiting for a long time for their priority dates to become current. A pending adjustment application entitles the applicant to work authorization and travel permit.

Every year, there is a limit to the number of immigrant visas issued to various visa categories except those that do not need to be on the wait list like immediate relatives of US citizens since an immigrant visa is always available to them.

Family-based immigrant visas are capped at 226,000 and employment-based immigrant visas are capped at 140,000 annually. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have established a guide to let applicants know when visa numbers will be available for their particular category.

As a guide, the DOS releases a visa bulletin every month. This lists the availability of immigrant visa numbers and likewise shows the backlogs in each category for a given month. The visa bulletin also shows when an application for adjustment of status (green card application) can be filed.

Up until last year, an application for adjustment of status could only be filed if the visa petitioner’s priority date was earlier than the cut-off date in a particular category. A priority date is generally the date when a relative or employer filed an immigrant visa petition on behalf of the beneficiary.

Starting in October 2015, the visa bulletin has adopted two charts per visa preference category— the Final Action Dates and the Dates for Filing Applications. Essentially, the Final Action Dates indicate when a visa is immediately available and the Dates for Filing Applications are the earliest dates when applicants may be able to apply. For purposes of adjustment of status application, the USCIS said that it will announce every month which of these two charts will be used to determine when application to adjust status may be submitted.

Ever since the start of this new revision, USCIS has used the Final Action Dates to indicate when foreign nationals can submit their application to adjust status (green card application). The Dates for Filing Applications have been used only to notify applicants as to when they can start assembling their documents for submission to the National Visa Center (NVC).

However, for the first month of the new fiscal year the USCIS has announced that adjustment applicants must use the Dates for Filing Applications. This means that they can file for adjustment without waiting for the availability of visa numbers.

If their priority date is earlier than the cut-off date in the chart for Dates of Filing Applications they may file for adjustment of status. For employment-based visa categories, EB-1 is now current worldwide. EB-2 is also current worldwide except for China and India. EB-3 is also current worldwide although the Philippines remains oversubscribed. For the Philippines, EB-3 shows a cut-off date of Sept. 1, 2013 which is about 34 months ahead of the Final Action Date.

For the family-based visa preference, the cut-off date for F1 for the Philippines is May 1, 2006; F2A is November 22, 2015 and F2B is February 1, 2007. The cut-off date for the F3 is January 1, 1995 and for the F4, it is April 1, 1994.

 

Petitioning Physical Therapists for Green Card

Physical therapists continue to be very much in demand in the United States. According to the Bureau of Labor Statistics, the demand is projected to grow by 34% from 2014 to 2024. This demand stems from aging baby boomers who are now in their 60s and 70s.

According to a research published in the American Academy of Physical Medicine and Rehabilitation, “the demand for PTs will outspace the supply within. Shortages are expected to increase for all 50 states through 2030. States in the Northeast are projected to have the smallest shortages, whereas states in the south and west are projected to have the largest shortages.”

This seems like good news to foreign physical therapists who may also be looking at working here in the US either for the experience or due to lack of better opportunities in their home countries. Like nurses, PTs can live and work in the US permanently.

Physical therapists may enter the US under an immigrant visa or green card. They belong to the Schedule A occupations which means they do not have to go through the lengthy process of obtaining a labor certification before an employer can file their I-140 immigrant visa petition.

The green card process starts with the filing of an I-140 petition on behalf of the foreign physical therapist with the USCIS Service Center having jurisdiction over the intended place of employment. The petition must be supported by the following documents: application for Permanent Employment Certification (Form 9089) in duplicate; prevailing wage determination; a copy of the notice sent to applicable collective bargaining unit or a copy of the posted notice of filing (notice must be posted at the place of employment between 30 and 180 days prior to the filing of the Form I-140 petition); and a copy of all in-house media used for recruitment of similar position.

Also required are permanent license in the state of intended employment or statement signed by an authorized state of intended employment stating that the beneficiary is qualified to take the state’s licensing exam; physical therapy diploma or degree; and proof of prospective employer’s ability to pay wage (for an employer with 100 or more employees, a letter from a financial officer; if employees total less than 100, a copy of annual reports, federal tax returns or financial statements).

Foreign educated physical therapists must demonstrate that their education is “substantially equivalent” to a U.S. education. Previously, a foreign PT may only need to have a bachelor’s degree in physical therapy but since 2001, the Commission on Accreditation in Physical Therapy Education (CAPTE) discontinued accrediting bachelors’ degree programs in the US and required all US programs to offer courses that would result in a master’s degree in Physical Therapy. Then recently, in 2015, it pushed the standard again. Now, all accredited physical therapy education programs in the US only offer the Doctor of Physical Therapy Degree (DPT). Before one is admitted to the DPT program, one needs to have completed a four-year bachelor’s course.

Physical therapists must also obtain a visa screen certificate either from the Foreign Credentialing Commission on Physical Therapy (FCCPT) or the Commission on Graduates of Foreign Nursing Schools (CGFNS). The certificate ensures that their credentials and English proficiency qualify them in performing their professional work in the US.

It is important to note that the FCCPT’s issuance of a visa screen certificate is a confirmation that the physical therapist’s education is equivalent to at least a master’s degree in Physical Therapy. This qualifies the applicant for the employment-based second preference (EB-2) classification

Immigrant Visa Waiting List is Long

123,524 applicants were added last fiscal year to the immigrant visa waiting list in the various preference categories subject to numerical limits.

A report from the National Visa Center (NVC) and submitted to the Department of State shows that as of November 1, 2015, there were 4,455,274 family-based applicants, an increase of 123,524 or 2.9% from last year. The number of employment-based visa applicants was 100,747 up by 9,837 applicants from last year.

The Philippines placed second over-all, with 417,511 registrants. The other countries that round up the top five in terms of number of registrants are: Mexico- 1,344,429; India- 344,208; Vietnam- 282,375; and China- 260,265.

These numbers include not only the principal applicants or petition beneficiaries but also their spouses and children entitled to derivative status. However, they do not include spouses, unmarried children under 21 years of age, and parents of US citizens who are not subject to the numerical limitations.

The figures do not also include the significant number of applicants for adjustment of status. Also excluded are those who failed to respond within one year to the visa application instruction letter sent by the National Visa Center notifying them of visa availability. In such case, the petition is considered inactive and not counted in the waiting list totals.

For fiscal year 2016, or from October 1, 2016 through September 30, 2017, the total number of visas to be issued is 226,000 in family-based preferences and 140,000 for employment-based preferences. The total per-country limit will be 25, 620, which translates to decades-long wait times for applicants in certain categories from countries such as Mexico, India, Vietnam, China and the Philippines.

The numbers of registrants for the family-based preferences (F) are: F1 (adult unmarried sons and daughters of US citizens)- 322,786; F2A (spouses and children of permanent residents)- 276,022; F2B (adult sons and daughters of permanent residents)- 480755; F3 (married sons and daughters of US citizens)- 825,991; and F4 (brothers and sisters of US citizens)- 2,549,718.

The Philippines has the second highest number of family preference registrants with 388,214. The per-country limit on the annual number of family preference visas for FY 2016 is 15,280.

Mexico ranked first in all family-based preferences. The Philippines ranked second in F2B and F3 categories; fourth in the F2A category, and sixth in the F4 category. More cases may be added to the F1 waiting list because of the automatic conversion pending 2B cases into F1 cases upon the naturalization of the petitioner, but this can be avoided by availing of the opt-out provision under the Child Support Protection Act. By opting to remain as an F2B case, a longer wait time under the F1 category is avoided.

For employment-based preferences (EB), the breakdown of registrants is as follows: EB1 workers with extraordinary ability, outstanding professors and researchers, and multinational managers and executives)- 3,474; EB2 (advanced degree professionals and aliens of exceptional ability)- 11,440; EB3 (skilled workers and professionals)- 61,584; EB3 (other workers)- 6,208; EB4 (special immigrants and religious workers)- 379; and EB5 (employment creation)- 17,662.

The Philippines ranked first in the EB3 (skilled workers) category, fourth in the EB2 and third in the EB3 (other workers) categories. Registrants from the Philippines comprise 30% of the total for employment-based preferences at 29,297, of which 96% fall under the EB3 (skilled workers) category for the Philippines. For FY 2016, the per-country limit is only 9,825.

 

 

 

EB-2 Visa without a Master’s Degree

Professionals can qualify under the employment-based second preference (EB-2) category if they have a master’s degree or higher and if the position requires an advanced degree. This category is appropriate for workers in highly skilled occupations, such as physical therapists, doctors, lawyers, engineers and pharmacists.

An EB-2 classification is desirable primarily because there are no visa backlogs under this category, except for nationals of India and China. In contrast, under the third preference (EB-3) category under which most professionals and skilled workers fall, there are significant waiting times ranging from at least six years to over ten years.

The requirement to obtain labor certification from the Department of Labor (DOL) may also be waived if the EB-2 worker can show that the waiver is in the national interest of the United States. The exemption from labor certification through the national interest waiver (NIW) can further speed up the green card process by about a year.

Even without an advanced degree, however, a professional can qualify under EB-2 if the position offered requires a master’s degree or higher but the employer will accept a bachelor’s degree plus five years of progressively responsible experience, and if the professional possesses the requisite education and experience.

The employer, however, may not simply require a master’s degree or bachelor’s degree with 5 years experience just to make a position qualify under EB-2. For instance, it cannot require a master’s degree in business administration for an accountant position unless the higher educational requirement is related and necessary to the position.

The job requirements should not be greater than those assigned by the DOL in its Standard Occupational Classification system. Otherwise, the employer must explain that the higher requirements are justified by a “business necessity”.

Progressive experience is not defined in the statute or regulations but it entails an increase in the employee’s level of responsibility over time. Good indications of progressive experience include the addition of more complex job duties, payment of higher wages and promotion to different job titles.

The five years of experience generally means full-time work experience. There is no definite standard for full-time employment under the EB-2 category but it is believed that a 35-hour workweek meets the minimum standard for full-time employment.

The experience must also have been gained after graduation from the bachelor’s program. Any experience before the bachelor’s degree will not be counted towards the required five years.

Moreover, the experience and the educational degree must have come before the filing of the labor certification application. If a NIW is sought by the beneficiary, he must fulfill the requirements by the time that the I-140 petition is filed.

For positions that do require an advanced degree, the EB-2 category is an attractive alternative for professionals who have the necessary skills for the job but perhaps chose to forego graduate education to instead gain work experience.

Furthermore, given the rather nebulous progressive experience requirement, it is very important that the professional adequately document his experience and qualifications to help ensure that he meets the standard.

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