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Time for Some DACA Recipients to Renew

Those granted Deferred Action for Childhood Arrivals (DACA) from June 15, 2012 through August 15, 2012 are reminded to apply for renewal with the USCIS.

If their previous deferred action expires before their DACA renewal is approved, they will accrue unlawful presence and will not be authorized to work during that period. USCIS therefore has urged early filing of renewal applications or at least 120 days before their two-year deferred action and work permits under DACA expire.

It must be noted that the recent DACA renewal guidance only covers individuals who were granted DACA by ICE before August 15, 2012. The USCIS has not yet released guidelines for individuals who received DACA after August 15, 2012.

Applicants for DACA renewal must satisfy eligibility requirements as if it was their initial application. USCIS Guidance requires applicants to submit Form I-821D, Consideration for DACA, accompanied by Form I-765 to renew work permit and Form I-765WS.

On the Form I-765WS, the applicants will establish economic need for the employment authorization, by indicating their personal current annual income, annual expenses and value of assets. Supporting documentation to prove economic necessity is not required.

The application must be accompanied with the payment of $380 for Form I-765 and $85 for biometrics fee, totaling $465 in filing fees, which can be in a single check or in two separate checks.

To be considered for renewal, an applicant must meet the following: be under the age of 31 as of June 15, 2012; came to the U.S. before his 16th birthday; continuously resided in the U.S. since June 15, 2007 up to the present; did not depart the U.S. on or after August 15, 2012 without advance parole; physically present in the U.S. on June 15, 2012 and at the time of making the request; and entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012.

Also, the applicant seeking renewal must satisfy one of the following education requirements: has graduated or obtained a certificate of completion from high school, or obtained a GED certificate, or was honorably discharged from the U.S. Coast Guard or Armed Forces, or was in school at the time he requested DACA from ICE and has successfully completed an education or training program and obtained employment or is currently enrolled in school.

Applicants for DACA renewal must not have been convicted of felony, significant misdemeanor, or three or more misdemeanors during the two-year period they were granted deferred action and must not otherwise pose a threat to national security or public safety.

The USCIS Guideline clarifies that it will review the requests for renewal on an “individual, case-by-case basis” to “determine whether the exercise of prosecutorial discretion is appropriate.” If the agency determines that deferred action is not warranted, it may not grant the request even if the applicant meets the threshold criteria for consideration.

A motion to reopen or reconsider or an appeal is not available if the USCIS denies the request; however, the USCIS may issue a Request for Evidence (RFE) for additional evidence showing the applicant’s eligibility.

If approved, deferred action and work permit under DACA will be valid for another two years.

Widespread Support for TPS for Filipinos

More than 100 days have passed since Typhoon Haiyan ravaged many parts of the Philippines and the country is still suffering from the devastation. The scale of the destruction prompted members of both the United States Senate and the House of Representatives to submit requests to the Department of Homeland Security (DHS) to offer temporary protected status (TPS) to Filipino nationals in the U.S.

This was followed by a letter-petition joined by over 140 organizations appealing to the DHS to issue TPS for Filipinos. On December 16, 2013, the Philippine government formally requested the Obama administration for TPS designation.

The USCIS in its letter to the American Immigration Lawyers Association (AILA) last December stated that they would “continue to monitor the situation in the Philippines and are actively engaged with the Department of State and other agencies.”
Meanwhile, the U.S. Senate submitted its second letter early this February reiterating its request to designate the Philippines for TPS. Efforts have also been made by over 200 Filipino-American organizations across the US including the Catholic Church urging the U.S. government to grant TPS to Filipinos.

Temporary Protected Status is a humanitarian form of relief granted by the United States government to noncitizens who are in the U.S. and who are temporarily unable to return to their countries safely due to conditions in the country such as armed conflict, violence, and environmental disasters. TPS is a “blanket form of relief” which provides a safe haven for aliens who are not eligible for asylum or refugee status.

A TPS status grants eligible applicants temporary authorization to remain and work in the U.S. for a set period of time. It may be extended if the conditions in the country do not change. TPS does not lead to permanent residence.

The decision to grant TPS lies with the executive branch of the federal government. Under the Immigration and Nationality Act (INA), the Secretary of Homeland Security, in consultation with the Department of State, has the authority to designate a foreign country for TPS. Congress does not have to vote for the designation under this process.

Congress, however, may also issue TPS through legislation. When the TPS statute was enacted in 1990, it also granted TPS to nationals of El Salvador in the U.S. Last November, H.R. 3602, the Filipino Temporary Protected Status Act of 2013 was introduced in the 113th Congress. The bill was referred to the Subcommittee on Immigration and Border Security by the House Judiciary in January 2014.

The bill, sponsored by Congressman Al Green of Texas, would provide 18-month temporary protected status to Filipino nationals. Under the bill, an applicant must satisfy the following: (1) continuous physical presence in the U.S. since November 8, 2013; (2) admissibility as an immigrant and; (3) timely registration for TPS with DHS.

Countries currently designated for TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, South Sudan, Sudan, Syria. There are over 300,000 TPS beneficiaries in the U.S. Data from the USCIS showed that El Salvador has the highest number of nationals currently benefitting from temporary protected status (212,000), followed by Honduras (64,000) and Haiti (60,000). Sudan has the least number with only 300 nationals registered for TPS.

Honduras and Nicaragua were placed under TPS in 1999 after the devastation of Hurricane Mitch. El Salvador was granted TPS designation after earthquakes in 2001 and the most recent, Haiti, after the earthquake in 2010. These countries were granted temporary protected status after a natural disaster.

Similarly, the destruction in the Philippines brought on by Typhoon Haiyan, which has killed more than 6,000, displaced 4 million and affected in total 16 million people, calls for TPS designation. It will assist thousands of Filipinos while rehabilitation is underway and will without doubt serve its humanitarian purpose.

Prepare H-1B Petitions Now

The demand for cap-subject H-1B numbers for fiscal year 2015 which begins on October 1, 2014 is expected to be greater than last year. Employers planning to file cap-subject H-1B petitions for foreign workers in specialty occupations are advised to initiate the H-1B petition process as early as possible.

Last year, 124,000 cap-subject H-1B petitions were filed during the first week of filing. Each fiscal year, an H-1B quota of 65,000 is allotted to foreign workers in specialty occupations with an additional 20,000 for graduates with advanced degrees from the U.S. This year, the annual cap is expected to be reached during the first five business days of filing. The first day of cap-subject H-1B filing is on April 1, 2014, a Tuesday.

Employers whose H-1B petitions were among the 39,000 petitions not assigned a number in last year’s lottery will most likely file another H-1B petition for their prospective employees. This will further augment the growing demand for H-1B numbers for fiscal year 2015 which is mainly because of the improving economy and the rising need for H-1B workers in the Information Technology (IT) and financial fields.

The race for an H-1B number this year will require early preparation. Before the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor (DOL). The employer makes several attestations in the LCA including a promise to pay the required wage to the worker for the entire period of the authorized employment.

The employers also attest in the LCA that the current employees and the union, if any, are given notice of the petition and that there are no strike or lockout in the occupational classification at the place of employment.

Processing time of LCAs may vary. Employers who are filing H-1B petitions for the first time may be required to submit documents to verify tax identification numbers. The expected high volume of LCA filings may also delay the processing of LCAs.

The H-1B petition must also have documentary evidence of the beneficiary’s educational background and work experience to make him eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluations and license to practice the profession, if required, among others.

If the beneficiary’s diploma has not been issued yet, the USCIS allows the submission of other evidence. The final transcript as well as the letter from the Registrar confirming that all degree requirements have been met may suffice. It must be noted that all documents submitted should come from a verifiable authorized official of the school. Gathering these documents from beneficiaries will definitely entail time.

Given the limited number of H-1B visa numbers available each year, the race for an H-1B number will require early preparation and no room for error. Employers who are planning to file cap-subject H-1B sponsorship for prospective employees should therefore start the process now.

Hints of Possible Compromise On Immigration

Republican House leaders unveiled their blueprint for immigration reform, one day before President Obama delivered his State of the Union Address. Their immigration plan included a path to legal status for the 11 million undocumented immigrants in the U.S. but did not offer a special path towards citizenship.

The one-page document which embodies the House Republicans’ principles on immigration reform adopts a step-by-step approach and conditions the legal status being offered to the undocumented on border security and interior enforcement. It also calls for “zero tolerance policy for those who cross the border illegally or overstay their visas” and a reform that ensures “that a President cannot unilaterally stop immigration enforcement.”

Republican Congressman Paul Ryan of Wisconsin said in an interview that, “Those things have to be in law, and in practice and independently verified before the rest of the law can occur.”

Once border security and enforcement “triggers” have been implemented, undocumented immigrants could come forward and live legally but only if they “admit culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).”

Unlike last year’s State of the Union Address, President Obama did not specifically call for a pathway to citizenship for the undocumented in the country nor did he set a deadline for passage of the immigration bill. He simply reiterated the need to fix the broken immigration system and how immigration reform will significantly benefit the American economy. By not getting into details, the President is seen to be giving top Republican House leaders the room to forge ahead with immigration reform the best way they can.

President Obama said in an interview that the House Republican’s blueprint indicates the narrowing gap between his principles and that of the GOP’s. He also said that he is open to a middle-ground agreement. The President, however, clarified that the undocumented should not be precluded from becoming U.S. citizens. It should not result to two permanent classes of people as being citizens or noncitizens.

Meanwhile, A.F.L.-C.I.O lambasted the House Republican’s blueprint, calling it “outrageous” and “a flimsy document that only serves to underscore the callous attitude Republicans have towards our nation’s immigrants.”

At the same time, the blueprint released by the top Republican House leaders caused a division among the Republicans. Republican Senator Jeff Sessions said that “the document was not agreed upon by the GOP conference and clearly does not represent the consensus of the Republican members.”

According to Congressman Mario Diaz-Balart of Florida, one of their primary concerns is that the President might not enforce border security laws. Many Republican House members also fear that supporting immigration reform would cause them to lose conservative votes come midterm election year. Adding to the lack of support in the Republican Party is the Affordable Care Act letdown.

Despite the massive hurdle, the GOP’s blueprint is seen by the White House as a good step. It is the silver lining for a compromise and the passage of an immigration reform bill this year.

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