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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

On March 13, 2015, DOL and the Department of Homeland Security (DHS) announced that they intend to issue a joint interim final rule (IFR) by April 30, 2015. Both agencies recognize that hardship has resulted from the district court’s decision and are moving as quickly as possible to issue new regulations in consistency with the court decision. The agencies are being mindful of other court decisions that have invalidated past sub regulatory actions in the H-2B and other related programs, which includes the issuance of guidance in the absence of rulemaking. The DOL also seeks to obtain relief from the court decision in the case that processing can continue until the IFR is promulgated.

On March 16, 2015, The DOL filed an unopposed motion to stay the court order. DHS resumed adjudicating H-2B petitions on March 17, 2015, but continues to suspend premium processing until further notice.

For the latest developments, please continue to check our blog.

By Lupe Lopez

Inez made the dangerous journey from Guatemala to the border in Tijuana.  She believed that she had been lucky.  She was able to make it to Tijuana without incident.  When she arrived in Tijuana she kept to herself just as she had been warned.  Within a few days, Inez was in San Diego happily working in a small restaurant meeting new people every day.  There she met her first love.  Ernesto worked for his uncle, the owner of the restaurant. Over the next few months, Ernesto and Inez became romantically involved.  One night, Ernesto told Inez that they would be going to see a friend at a hotel.  When they arrived at the hotel, they both went to the friend’s room and knocked on the door.  When there was no answer, Ernesto pulled out the key and told Inez his friend had given him the key just in case.  Inez didn’t think anything of this and went into the hotel room with Ernesto.

While waiting for the supposed friend, Ernesto began trying to get intimate with Inez.  She refused and told him that she was not ready for this.  He insisted.  She continued to refuse.  Inez was surprised when the man she had trusted became violent.  Ernesto began beating her, then proceeded to rape her.  He warned her that if she called the police, he would kill her.  Meanwhile, a guest in the next room heard all the commotion and had contacted the police.  Inez was crying and trying to get dressed when the police knocked on the door.

After being rescued by the police, Inez’s ordeal was not over.  Because she was in the country illegally, she was turned over to the Immigration and Customs Enforcement.  She was held for several days while she was interviewed and processed.  It turns out that Inez was not Ernesto’s first victim.  The police needed Inez to testify as a witness.  She had to stay in the country.  For this, Inez was given a “U visa.”

Inez was the victim of a crime where she suffered mental and physical abuse.  In addition, she was helpful to law enforcement in the investigation of the crime.  This made her eligible for the U Visa.  Victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or to government officials in the investigation or prosecution of criminal activity may be eligible for a U visa.  The U visa is a nonimmigrant visa created by Congress to allow law enforcement agencies the ability to investigate and prosecute criminals while still protecting the victims of the crimes.  The U visa provides nonimmigrant status to eligible victims.  The may remain, temporarily,  in the United States while assisting law enforcement.

The U.S. Citizenship and Immigration Service states that you may be eligible for a U nonimmigrant visa if:

  • You are the victim of qualifying criminal activity.
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf (see glossary for definition of ‘next friend’).
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
  • The crime occurred in the United States or violated U.S. laws.
  • You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Of course, no one person wishes to be a victim of a crime; especially, when you are in a country that is foreign to you.  But if you have been a victim, it is important to know that there is a form of protection.  Victims of certain crimes may apply for U nonimmigrant status (U Visa).  On the USCIS website at USCIS.gov, you may find a list of crimes that qualify for a U Visa.  These crimes include abduction, abusive sexual contact, blackmail, domestic violence, extortion, involuntary servitude, kidnapping, torture, stalking, and many other crimes.

Victims of Crimes may also file for Family Members

Persons who have been approved for U nonimmigrant status may also apply for certain immediate relatives based on their approved application.  If the victim of the crime, as the principal applicant, is over the age of 21, they may apply for their spouse and children.  If the principal applicant is under the age of 21, they may petition on behalf of their spouse, children, parents, and unmarried siblings under the age of 18.

Applying for the U Visa

Many times, the law enforcement agency, itself, will provide the necessary paperwork for the application of a U visa.  This isn’t always the case.  The Law Offices of Jacob Sapochnick can be of assistance to you with this type of a visa.  Our offices will work with you and the government agency to obtain the documents required for the application.  There is no statute of limitations for the U visa; however, if the case has been closed for longer than five years, it may be difficult for you to obtain the required evidence and certification from the proper agency.  The USCIS also has many resources available for victims of crime.

To apply (petition) for a U nonimmigrant status, you will be required to submit (www.USCIS.gov):

It is also possible to apply for U nonimmigrant status from abroad (outside the United States).  The process is different from that listed above.  When your petition is approved, you must go through the U.S. Consular processing to enter the United States.

Petitions are reviewed on a “case-by-case” basis.  The crime itself and the impact it has had on the person will be reviewed.  Not all petitions are approved.  If approved, you may be eligible to file for permanent residency after having been physically present in the United States for at least three years.  You must be able to prove that you fulfilled all other requirements.  U Nonimmigrant status petitions and related forms are filed with the USCIS.  There is a filing fee that may be waived if there is a financial hardship.

Persons and their family members who have been in U Status for at least three years may also be eligible for permanent residency after three years.  To get further information on obtaining residency as the holder of a U visa, give us a call or if you have been a victim of a crime and are interested in obtaining a U visa contact our office and we will set up a free consultation.

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The power of the purse has spoken and the Democrats have come out on top. On Tuesday March 3rd the Republican led House of Representatives passed a bill funding the Department of Homeland Security up until September of this year. The bill passed by a vote of 257 to 167, with 75 Republicans and 182 Democrats voting in favor of the bill. The bill included no mention of the Obama administration’s executive actions on immigration, causing a split within the Republican Party to vote on the bill. Conservative Republicans had said that if the bill did not include language opposing Obama’s executive actions they would not be supportive of the bill.

The leader of the House of Representatives, Boehner, placed the blame on Republican inability to break a Democratic filibuster in the Senate and for failing to impose conditions on the bill, a prerequisite for Republican votes. The outcome of the bill was a victory for Democrats who were able to effectively block the Republican agenda by preventing them from placing immigration restrictions on the bill.

Boehner has spent the last few months struggling to keep the Republic front united against Democrats in the Senate, who have pushed back against Republican pressure. During his re-election as speaker in January, some Republicans were re-considering voting for Boehner. Boehner still remains the subject of criticism within his own party; the only common denominator bringing the Republican Party together remains their hard line stance on immigration and border security. During a closed door caucus addressing the GOP, Boehner said that Republicans have one last card to play—Judge Hanen’s decision to halt implementation of President Obama’s executive actions on immigration. Hanen’s decision has proved a great cause for concern for Democrats. As previously reported, dozens of states came out of the shadows accusing Obama of overstepping his executive power.

At this time it may take months before any meaningful decision is made in regards to Obama’s executive action as the injunction moves through the court system. For the latest developments please continue to check our blog.

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As a refresher for our readers, earlier this week the federal government filed an expedited emergency motion to stay (prevent execution) of the injunction issued by the federal judge in Texas stopping implementation of expanded DACA and DAPA programs. The federal government warned in its motion that if judge Hanen did not act on the motion by the end of the business day on Wednesday (February 25), the government would move to the court of appeals.

As sources, such as Politico, report, the federal judge who issued the injunction indicated on Tuesday that he is not inclined to rush a decision on the federal government’s request to lift the injunction, which means that the next stop would most likely be the 5th Circuit Court of Appeal in New Orleans.

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Today, on February 24, 2015, USCIS announced that effective May 26, 2015 it will extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants to allow them to accept employment in the U.S.

Finalizing the H-4 work authorization was an important step toward implementation of the President’s executive action initiatives announced in November 2014 for a purpose to modernize and improve our immigration system.

Not all H-4 holders will benefit from the employment authorization. Under the new regulation, eligible individuals include H-4 dependents whose H-1B spouses:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

In other words, only those H-4 dependents whose H-1B spouses are in the process of obtaining a green card through employment will be able to benefit from work authorization.

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By Ekaterina Powell, Esq.

As you may already know from reading our prior posts, on February 16, 2015, the Texas federal district court issued a preliminary injunction to stop expanded DACA (expanded guidance concerning deferred action for certain individuals who came to the United States as children) and DAPA (deferred action for the parents of U.S. citizens or lawful permanent residents) from going into effect. The case is known as Texas v. United States, the Lawsuit Challenging DAPA and DACA Expansion.

The decision came only two days before USCIS was supposed to start accepting applications under Expanded DACA guidelines issued by the President in November of 2014.

The decision was a surprise to many of those who were prepared to file their applications on February 18, 2015.

What does the preliminary injunction mean?

Since the preliminary injunction was issued, USCIS cannot accept any applications under expanded DACA, which was supposed to become effective on February 18, 2015, and will not implement its policies regarding DAPA, the program that was set to start in May 2015.

This injunction also affects those who file for extension of their existing DACA. Since expanded DACA rules have not become effective, USCIS will continue to issue employment authorization documents (EADs) for renewals of existing DACA requests for two-year periods as opposed to three-year periods.

What is a solution?

After the preliminary injunction was issued, the federal government promised to appeal the decision of the Texas district court in the Court of Appeals. However, an appeal can take a considerable amount of time and delay can detrimentally harm millions of families, causing unnecessary deportation for those who could qualify under expanded DACA and DAPA relief.

In order to prevent the harm caused by the appeal’s delays, today, February 23, 2015, the federal government filed an emergency expedited motion to stay,  pending appeal, its February 16 Order.

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Earlier this year, California DMV has started issuing AB 60 driver licenses, which are available to California residents regardless of their immigration status. This change became effective on January 1st, 2015.

AB 60 driver’s license can be used for personal identification and gives the right to legally drive in California but does not grant any other privileges. An AB 60 driver license looks the same as a regular driver’s license except for one feature. In the right corner, there is a pre-printed notation “Federal Limits Apply”.

If you want to get AB 60 driver license, you need to prove your identity and residency in the State of California, pass the knowledge tests and behind-the-wheel driving exams. In order to apply for AB 60 driver’s license, you need to make an appointment or visit DMV office.

The identification information and residency address you provide when applying for AB 60 driver’s license do not become a public record. Even if you are unlawfully present in the US, the DMV may not disclose this information except when requested by a law enforcement agency as part of an investigation.

You do NOT have to provide a Social Security Number in the AB 60 application. Please do NOT use any SSN number that was not legally assigned to you as it is a federal crime. DMV will check legitimacy of your information and has a right to forward the SSN for verification.

You can find more information and frequently asked questions on the application for AB 60 Driver’s license here.

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On Monday February 16, 2015 Judge Andrew Hanen of the U.S. District Court in Brownsville, Texas issued a preliminary injunction temporarily preventing President Obama’s executive actions on immigration (expanded deferred action) from going forward. The injunction does not make Obama’s executive actions illegal, however it does prevent the Obama administration from implementing expanded DACA and DAPA until the courts determine the constitutionality of the executive actions announced by Obama on November 20, 2014. According to Judge Hanen, 26 states brought the suit to his attention, all of whom he determined had standing to sue. A lawsuit against President Obama is expected to move its way through the court system in the coming months. The injunction claims that the President lacks the constitutional power to make such executive actions. As a result of the injunction, USCIS will no longer accept applications for DACA on February 18th the date that USCIS initially announced it would begin to accept applications. Additionally, plans to accept requests for DAPA will be suspended until further notice.

The Secretary of Homeland Security, Jeh Johnson announced that while he disagreed with the injunction, that the Department of Homeland Security would be forced to comply. Nevertheless, the Department of Justice plans to appeal on behalf of the federal government.

Will the court order affect existing DACA?

The court order will only affect Obama’s executive actions for EXPANDED deferred action and DAPA. The court order will NOT affect existing DACA. Applicants for existing DACA can continue to apply for initial DACA or renewal of DACA pursuant to 2012 guidelines. The court order also does not apply to policies for apprehension, detention, and removal of undocumented immigrants per the Department of Homeland Security’s memorandum released on November 20, 2014, the day of President Obama’s execution action announcement available here. To read the complete injunction please click here. The White House Office of the Press Secretary also released a statement defending the administration’s actions available here. We will continue to keep you informed as further updates are available. For concerns and legal advice please contact our office.

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What is DAPA? DAPA allows eligible applicants, who do not have a criminal history, and who do not otherwise pose a threat to national security, to request deferred action having met certain conditions for a period of up to three years. DAPA allows parents of US Citizen or lawful permanent resident children to be granted an employment authorization card. DAPA also safeguards individuals against deportation.

To qualify under Obama’s executive action, an undocumented parent of a U.S. Citizen or lawful permanent resident child must meet the following conditions:

  • The applicant must have lived in the United States continuously since January 01, 2010 to the present
  • The applicant must have had a son or daughter on November 20, 2014 irrespective of age or marital status, who is either a US Citizen or lawful permanent resident
  • The applicant must have been physically present in the United States as of November 20, 2014, the date of President Obama’s announcement
  • The applicant must have had no lawful status on November 20, 2014, the date of President Obama’s announcement
  • The applicant must have been physically present in the United States on November 20, 2014 and at the time of requesting DAPA with USCIS

If you have been convicted of any of the following you may not be eligible for DAPA:

  • Felony
  • Misdemeanor or three or more other misdemeanors
  • Are a threat to national security
  • Are an enforcement priority for removal

When Can I Apply? Currently applications are not being accepted, however USCIS has indicated that requests for DAPA will begin to be accepted in mid to late May of this year.

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USCIS has recently announced that applications for expanded Deferred Action for Childhood Arrivals (DACA) will begin to be accepted starting February 18, 2015. Applications will not be accepted before this date. President Obama has expanded the population eligible for DACA to unlawful individuals who entered the country before the age of 16, and who have continuously resided in the United States since January 01, 2010 regardless of their current age. The expanded DACA program will grant eligible applicant’s an employment authorization card and ‘deferred action status’ that is good for a period of three years. Previously, DACA was only good for a period of two years, had stricter age and residency requirements.

How is the Expanded DACA program different?

  • The initial DACA program was only good for a period of two years, now it is good for a period of three years
  • Expanded DACA removes the requirement that an individual must have been born before June 15, 1981
  • Expanded DACA removes the requirement that individuals must have resided in the United States continuously since June 15, 2007, the new marker is January 01, 2010

To be eligible for the Expanded DACA program you must meet the following requirements:

  • You must have entered the United States before 16 years of age
  • You must have continuously resided in the United States since January 01, 2010, up to the present time
  • You can be of any current age to benefit
  • You must have had no lawful status on June 15, 2012
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the U.S. armed forces or U.S. Coast Guard; and
  • Have not been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

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