Seguritan US Immigration Articles

DAPA and Expanded DACA Temporarily Blocked

U.S. District Judge Andrew Hanen issued a temporary injunction on February 16 putting on hold the implementation of President Obama’s Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program.

As a result, the Department of Homeland Security did not begin accepting applications for DACA under the expanded program last February 18 as planned.

Although DHS Secretary Jeh Johnson strongly disagreed with the Judge Hanen’s decision, he affirmed that the DHS will comply with the decision. He, however, clarified that the ruling does not affect the existing DACA program launched in 2012. The order does not also affect the Department’s authority to implement enforcement priorities established in the November 20, 2014 memorandum.

The lawsuit seeking to prevent the Obama Administration from implementing the executive actions was filed on December 3, 2014. Texas leads 25 other states in the lawsuit, namely, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin.

In issuing the temporary injunction, Judge Hanen based his decision on the claim that the administration did not comply with the Administrative Procedures Act. He has yet to rule on the merits of the case. The order effectively halts the implementation of the programs until the case is resolved.

The White House will appeal the order. Josh Earnest, White House press secretary said, “We will seek that appeal because we believe when you evaluate the legal merits of the arguments, that there is a solid legal foundation for the president to take the steps he announced last year to help reform our immigration system.”

Immigrant rights advocates also took issue with Judge Hanen’s basis for issuing the order. The American Immigration Lawyers Association, in a statement, pointed out, “His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.”

They remain confident that the lawsuit, just like previous legal challenges, will also fail. It can be recalled that last December, a politically motivated lawsuit was dismissed when Sheriff Joe Arpaio contended that President Obama’s announcements in November 2014 were unconstitutional.

Similarly, in 2012, Mississippi’s lawsuit challenging the legality of the original DACA program was also dismissed. In that case, the judge found that the perceived economic hardship claimed by the state was not based on facts.

President Obama, for his part, is confident that Judge Hanen’s order will be overruled. According to him, “The Department of Homeland will continue with the planning because we want to make sure that as soon as these legal issues get resolved – which I anticipate they will, in our favor – that we are ready to go.”

Meanwhile, the Department of Justice has filed for an “emergency stay” of the court order, pending appeal, or in the alternative, to stay its order beyond application in Texas. If the stay is granted, DHS can finally begin accepting requests for DACA under the expanded program as well as requests for DAPA in May as scheduled. Millions of immigrants hoping to benefit from both programs would not have to wait many months for the decision on the appeal.

This recent development on the President’s executive actions may have delayed the implementation, but it has not dampened the hopes of the immigrant community. As Karen Tumlin, Managing Attorney of the National Immigration Law Center pointed out, “We’ve hit a speed bump on the road to the implementation of these programs, but folks should stay the course, get their documents ready, prepare to apply, because the programs will open their doors eventually.”

H-1B Filing Period To Start April 1

As the start of the H-1B filing season draws near, employers looking to sponsor foreign workers in specialty occupations are urged to get their petitions ready before the filing window opens on April 1, a Wednesday.

Every year, the United States Citizenship and Immigration Services (USCIS) allocates a maximum of 65,000 new H-1B visas with an additional 20,000 visas available to graduates with advanced degrees from U.S. universities.

For the past two years, the number of H-1B petitions filed during the first week of filing exceeded the annual H-1B visa quota. In 2013, approximately 124,000 petitions were filed during the five-day filing window. In 2014, around 172,500 petitions were filed within the same number of days.

This year, it is expected that H-1B filings will again exceed the annual cap during the first five days of the filing season. The demand for cap-subject H-1B numbers for fiscal year 2016 which begins on October 1, 2015 is predicted to be even higher than last year. To increase the chances of getting an H-1B visa number, employers should prepare in advance to ensure that the petitions are received by the USCIS between April 1 and April 7.

Before the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor.
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.
The H-1B employer must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluations and license to practice the profession, if required, among others.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

Employers must make sure that the petition made on Form I-129 is properly completed. There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request.

For two consecutive years now, the USCIS has conducted an H-1B lottery to select at random the petitions required to reach the cap from the pool of petitions received on the final receipt date. The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees.

There is no doubt that the annual limit on H-1B visa number can no longer keep up with the demand of U.S. companies. Many are hopeful that Congress will finally address this problem. In the meantime, if the H-1B quota is reached this year as predicted, U.S. employers will have to rely on luck whether they can hire much-needed high-skilled workers for fiscal year 2016.

Expanded DACA Filing to Start February 18

On February 18, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting requests for Deferred Action for Childhood Arrivals (DACA) under the expanded program.

The expanded program eliminates the age cap of 31 and will now cover individuals brought into the U.S. as children regardless of their current age. Under the original program, only those who were under 31 years old on June 15, 2012 were eligible to apply. By eliminating the age cap of 31, the age of the applicant at the time of application would not matter so long as he meets all the other criteria.

The expanded program also moves the eligibility cut-off date when an applicant must have been in the U.S. from June 15, 2007 to January 1, 2010.

To be eligible, applicants must meet the following requirements as set forth in the expanded DACA guidelines: came to the U.S. before his 16th birthday; continuously resided in the U.S. since January 1, 2010 up to the present; was physically present in the U.S. on June 15, 2012 and at the time of making the request; and had no lawful status on June 15, 2012.

Also, they must be currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; and not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety.

An applicant must complete and sign Form I-821D, Consideration of Deferred Action for Childhood Arrivals, accompanied by Form I-765, Application for Employment Authorization, Form I-765WS Worksheet, and documentary evidence demonstrating their eligibility for the program.

The application must be submitted with the $380 filing fee for the Form I-765 and $85 for biometrics fee, totaling $465 in filing fees. The check must be made payable to the U.S. Department of Homeland Security.

After filing, the USCIS will schedule applicants for biometrics collection at a USCIS Support Center. Applicants will receive their schedule in the mail. An in-person interview may also be required for some applicants.

Unlike the original DACA program which granted recipients deportation relief and work permits for 2 years; recipients under the expanded program will get relief for three years. Deferred action under the program, however, does not lead to permanent residence nor provide lawful immigration status.

Over 610,000 have been granted DACA status under the initial program. An additional 270,000 immigrants are expected to benefit from the expanded program.

Meanwhile, twenty-six states have signed a lawsuit seeking to prevent the Obama Administration from implementing the executive actions including the expanded DACA program. Republicans are also planning to undertake congressional action to block the President’s programs.

Immigrant rights advocates are confident that the President’s executive actions will survive lawsuits and congressional action aiming to block it.

The President, on his part, said, “I want to be clear as possible: I will veto any legislation that got to my desk that took away the chance of these young people who grew up here and who are prepared to contribute to this country that would prevent them from doing so.”

Immigrants are encouraged to apply for the expanded DACA program as soon as the application period starts.

Senate Bill to Increase Annual H-1B Cap

Bipartisan efforts in the U.S. Senate are once again sparking hope for a meaningful and sensible change to the country’s immigration laws. The new proposed bill entitled, “Immigration Innovation or I-Squared Act of 2015” introduced on January 13, 2015, focuses mainly on expanding laws applying to high-skilled guest workers.

Under present law, a maximum of 65,000 new H-1B visas are issued each fiscal year. An additional 20,000 visas are made available to graduates with master’s degree or higher from U.S. universities.

For years, U.S. companies especially those with technology components have been clamoring for a significant increase in the number of new H-1B visas issued per year. The annual H-1B cap of 65,000 which has remained unchanged for ten years can no longer keep up with the demand of the present time. An increase to the current cap would allow U.S. companies to hire much-needed high-skilled workers

In April 2013, the United States Citizenship and Immigration Services (USCIS) received approximately 124,000 petitions in one week’s time and in April 2014, the number increased to around 172,500 petitions which the USCIS received within a similar timeframe.

The proposed I-Squared Act seeks to increase the current annual H-1B visa cap from 65,000 to 115,000, and if there is high demand, it would even allow for an increase of up to 195,000 per year. The proposed bill would also eliminate the 20,000 limit on advanced degree petitions.

The proposal is seen to benefit U.S. companies in need of workers with advanced degrees from U.S. universities in the Science, Technology, Engineering, and Math (STEM) disciplines.

The proposed bill would also allow dependent spouses of H-1B visa holders to work, increase worker mobility so they can change jobs with ease, allow dual intent for foreign students, recapture unused green cards approved by Congress in previous years but were not used, and exempt from visa caps, “persons of extraordinary ability,” “outstanding professors and researchers,” U.S. degree holders in STEM disciplines, and dependents of employment-based immigrant visa recipients.

Many have high hopes for this proposed legislation which is authored by Senators Orrin Hatch (R-Utah), Marco Rubio (R-Florida), Jeff Flake (R-Arizona), Amy Klobuchar (D-Minnesota), Chris Coons (D-Delaware), and Richard Blumenthal (D-Connecticut).

According to Sen. Chris Coons (D-Delaware), “Our immigration system is broken, though, and while I still believe the Senate should come together again on comprehensive immigration reform, it’s important that we make progress in the areas that Democrats and Republicans do agree on…”

It can be recalled that the remaining embers of hope for a comprehensive legislative fix to the broken immigration system died in the hands of House Republican leaders who snubbed and refused to even take up the Senate-passed comprehensive immigration reform bill.

Although the partisan divide on this particular bill is clear, it seems that other proposed bills on immigration also suffered the same fate. In 2013, the bill, S. 169, which mirrors the proposed I-Squared Act, did not even make it beyond the committee level.

Meanwhile, another bipartisan bill, known as “The Startup Act” was also introduced in the Senate on January 16, 2015. The proposed bill seeks to create, among others, an entrepreneur’s visa which will allow foreign-born entrepreneurs to remain in the U.S. to launch businesses and create jobs.

This proposed bill introduced by Senators Jerry Moran (R-Kansas) and Mark Warner (D-Virginia), together with Chris Coons (D-Delaware), Roy Blunt (R-Missouri), Tim Kaine (D-Virginia) and Amy Klobuchar (D-Minnesota), is the fourth version of the “Startup Act” which they have been working on for more than three years.

The fate of these proposed legislations remain uncertain. However, it is high time that our legislators set aside partisan politics and put in place reforms that have been long overdue.

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