Visa Lawyer Blog

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On Monday May 4, 2015 a federal appeals court heard arguments in the case Joseph Arpaio v. Barack Obama, et al, U.S. Court of Appeals for the District of Columbia Circuit, No. 14-5325. Back in November of 2014 in the wake of Obama’s executive actions, Maricopa County Sheriff Joe Arpaio sued President Barack Obama shortly after he announced his executive order extending Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—a plan which would shield over 4.7 million eligible undocumented immigrants from removal proceedings. Arpaio along with 26 other states sued the administration claiming that the president had overstepped his executive power and that the executive actions were unconstitutional.

In the Arpaio case, two out of the three presiding judges from the District of Columbia ruled that Arpaio did not have standing to sue and that he had failed to prove that he was directly harmed by the executive actions. Arpaio had previously claimed that the executive actions directly harmed him because criminals would not be deported as a result of Obama’s executive actions. However, eligible recipients of extended DACA and DAPA would be required to demonstrate strong ties to the United States by providing documented evidence of their continuous residence in the United States, have no criminal record, and/or have U.S. born children.

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Today, May 4, 2015 USCIS announced that data entry for all H-1B cap-subject petitions has been completed for the 2016 fiscal year. USCIS is scheduled to begin returning all H-1B cap-subject petitions that were not selected in the computer-generated random lottery held early last month. Since USCIS received an unprecedented 233,000 cap-subject H-1B petitions (including master’s cap) we expect that it will take a few months for petitions that were not selected to be returned. USCIS has recommended that petitioners ask about the status of a submitted cap-subject petition only once the petitioner has received a receipt notice or until the unselected petition has been returned. USCIS will provide an announcement once all unselected petitions have been returned. Our office expects to receive the receipt notices for the remaining cap-subject petitions that have been selected in the lottery this week or the following week.

For more information please visit our website by clicking here.

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If a petitioner filed an FY16 H-1B cap petition in a timely manner for the fiscal year 2016 and has received notification from the delivery service used suggesting that there may be a delay or damage to the package, the petitioner may file a second H-1B petition.

The second H-1B petition must contain the following: a new fee payment, an explanation as to why a second petition is being filed with supporting evidence (such as the notice from the delivery service), and a request to withdraw the first petition.

If a second petition is sent without these items, it will considered a duplicate filing. USCIS would like to remind employers that it will deny or revoke petitions that are filed in the multiple or duplicate by an employer in the same fiscal year for the same H-1B employee, and they will not refund the filing fees.

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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.

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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.

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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?

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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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This week the White House announced that President Obama’s executive action on immigration could stimulate California’s economy as much as $27.5 billion. According to White House advisor Cecilia Muñoz, the executive action could potentially increase wages and productivity in one of the country’s largest economies. The White House Council of Economic Advisors estimates the executive action could raise the country’s gross domestic product up to a figure of $90 billion over the next ten years.

This is not surprising given that Obama’s executive action will allow eligible applicant’s to receive employment authorization cards, thereby expanding the labor force and allowing immigrants the flexibility of seeking new jobs that were not previously available to them. A young, vibrant, employed immigrant population is sure to spark innovation and entrepreneurship at a rate that was not previously available with the restrictive DACA program. The order will allow some foreign workers who are occupying high-skilled fields the ability to benefit from employment portability while awaiting their permanent residency status. The acquisition of work permits will allow eligible immigrants to obtain better paying jobs. Higher incomes would result in greater expenditures and therefore a higher amount of taxes paid.

An analysis published by the President’s Council of Economic Advisers (CEA) revealed that the executive actions on immigration would boost economic output by an estimated figure of 0.4 to 0.9 percent over a period of time years, increasing the country’s GDP from $90 billion to $210 billion by 2024. By allowing foreign workers to come out of the shadows, the productivity of the American workforce as a whole will increase, since workers will find jobs that are best suited to their skills and potential. The White House contends that this labor shift will also allow native workers to specialize in jobs that are best suited to their skills and ability. Altogether, greater productivity and a larger workforce will result in: wage increases for all workers, increased tax revenues, and a reduction of the deficit. The analysis makes the claim that the executive actions would not adversely affect employment options for native workers. To read the complete publication please click here.

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