Immigration Law Newsletter, December 2014
Executive Action on Immigration and Resulting Changes to U.S. Immigration
On November 20, 2014, the President announced a series of executive actions expanding the population eligible for Deferred Action for Childhood Arrivals (DACA), as well as expanding the Deferred Action program to undocumented parents of U.S. Citizens and Lawful Permanent Residents, improving border security and crackdown on illegal immigration at the border, prioritizing deporting convicted felons not families, and requiring certain undocumented immigrants to pass a criminal background check in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
- Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to the U.S. before turning 16 years old and have been present in the U.S. since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
- Allowing undocumented parents of U.S. citizens and lawful permanent residents who have been in the U.S. since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
- Expanding the use of provisional waivers of unlawful presence to include (1) the sons and daughters of U.S. citizens and (2) the spouses and sons and daughters of lawful permanent residents
- Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs
- Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee
Based on the President’s announcement, as well as a briefing by the White House on November 20, 2014, we have set out below a summary of the expected changes. Please note, details will be streamlined in the upcoming days, weeks, and months. We will keep up to date with information released and provide updates on our website. We encourage you to visit our website frequently for any new updates. We have highlighted a few of the expected changes:
Expansion of Deferred Action: Two deferred action initiatives allowing employment authorization will be rolled out that are estimated to benefit approximately 4.4 million undocumented individuals:
- Deferred Action for Parental Accountability (DAPA): Parents of U.S. citizens and lawful permanent residents (of any age), born on or before November 20, 2014, who have been continuously present in the U.S. since January 1, 2010, and who pass background checks
- DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010.
*Both of these initiatives will provide deferred action for 3 years. The expanded DACA program is expected to be up and running in 90 days and deferred action for parents in 180 days. Please note, the executive order does not include undocumented parents of DACA recipients.
I-601A Waiver Expansion: The I-601A provisional waiver will be expanded to include spouses and children of lawful permanent residents and children of U.S. Citizens. The “Extreme Hardship” definition is expected to be expanded and clarified.
Timing of Filing for Adjustment of Status: The ability of individuals with an approved employment-based immigrant petition (Green Card application) who are caught in the quota backlogs to file for adjustment of status (AOS) (i.e. priority dates are not current) will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact approximately 410,000 people.
Business Immigration Changes: A series of business immigration improvements will be implemented, including:
- Investors: Certain investors will be eligible for parole into the U.S., or for parole-in-place
- National Interest Waivers could be available for entrepreneurs, researchers, inventors, and founders
- For AC-21 purposes, the term "same or similar" will be clarified
- L-1B: Guidance for L-1B applications will be released
- H-4 EAD regulation will be finalized to provide employment authorization to spouses of certain H-1B visa holders who are on a path to permanent resident status
- STEM/OPT: The length of time permitted on OPT for STEM graduates will be expanded
- PERM: Undertake a rulemaking process to modernize the PERM program
- Worksite Enforcement: The Department of Labor (DOL) will coordinate with other agencies regarding worksite enforcement
H-1B Filing Tips
The California Service Center (USCIS) has published a training module on H-1B filing tips for the benefit of the employers. The USCIS has reminded the employers to enter their name, address and phone number in Part 1 of the Form 1-29 and not the attorney’s information. If an attorney has to be notified of an action in the employer’s case, a Form G-28 should be submitted. In addition, the employer has to sign the Labor Condition Application (LCA), Form I-129 and I-129H classification.
The proposed H-1B job duties and the Beneficiary’s education must be closely related. The Beneficiary’s degree must always be accompanied by an official transcript. In cases where the Beneficiary’s foreign education is evaluated by an education evaluation agency, it is important to provide copies of work experience, training certificates, transcripts and any other documents that the education evaluator has reviewed to provide an education evaluation.
The LCA must be certified by the Department of Labor (DOL) before filing it with H-1B petition. The LCA must cover the requested H-1B employment dates and use the correct Standard Occupational Classification (SOC) as per the duties stated in the H-1B petition. The employer must provide all job sites where the Beneficiary will be working during the H-1B period if: (a) the job sites are outside the Metropolitan Statistical Area (MSA) of the main job location; and (b) the length of time the Beneficiary will be working at each job site outside the MSA is long term i.e. more than 30 days. If one (1) LCA is filed for multiple Beneficiaries, the Employer must include a list of workers who have already used or will be using the LCA.
The training module also gives the common reasons for USCIS to issue a Request for Evidence (RFE) in a H-1B petition: (a) evidence of maintenance of status, such as paystubs; (b) evidence pertaining to extensions under AC21, such as copy of pending or approved permanent Labor Certification, Form I-140, Immigrant Petition for Alien Worker, and/or evidence that the Labor Certification is currently pending; (c) evidence that the H-1B position qualifies as specialty occupation and beneficiary’s qualifications for the position; (d) in cases where the Beneficiary will be working from client site, evidence of specialty occupation work is available.