Visa Lawyer Blog

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53598884922_4742d81a60_cLast week the world of immigration experienced a seismic event. The President announced a historic executive action on immigration that will forever change the lives of undocumented spouses of U.S. citizens and streamline the nonimmigrant work visa process for DACA recipients and other individuals. In this blog post, we share with you everything we know about how the executive order will benefit U.S. college graduates seeking work visas.

President Biden’s executive action was announced on the 12th anniversary of the Deferred Action for Childhood Arrivals (DACA) program, first enacted under the Obama administration. In addition to providing individuals protection from deportation, the order provides relief to potentially thousands of DACA recipients and other Dreamers who have earned academic degrees in the U.S. and are seeking employment opportunities in fields related to their course of study.

In doing so, the government will allow Dreamers to explore existing employment-based visa options such as H-1B, TN, L, O visas, etc.

Key Highlights

What the Executive Order does

  • Work Visas: DACA recipients and other undocumented individuals could soon apply for expedited waivers and receive temporary work visas, granting them legal status to live and work in the United States without fear of deportation
  • Eligibility: To be eligible for nonimmigrant work visas, individuals must have earned a degree at an accredited U.S. institution of higher education in the United States, and have an offer of employment from a U.S. employer in a field related to their course of study
  • Path to Residency: There is potential for these temporary work visas to create a path to permanent residency through employment-based sponsorship options.

Why This Matters

Due to the contentious political climate, the U.S. congress has failed to bring about meaningful immigration reform that provides a legal pathway for Dreamers to remain in the United States and positively contribute to the U.S. economy, utilizing the skills and education they gained here in the United States.

For the first time ever, the government will direct the State Department (DOS) and Department of Homeland Security (DHS) to issue clarifying guidance making it possible for DACA recipients and other individuals without legal status to apply for expedited waivers and temporary work visas.

How will this process work?

While complete details have not yet been released, the government will facilitate expedited review of waivers of visa ineligibility by clarifying that it is within a Consular officer’s discretion to grant a waiver for such individuals, making it easier for them to apply for work visas.

212(d)(3) Waivers and the Ten-Year Unlawful Presence Bar

Under current immigration law, DACA recipients and other undocumented immigrants face additional barriers to obtaining temporary work visas due to their unlawful presence. Under the law, anyone who has accrued unlawful presence for a year or more is subject to a ten-year bar that is triggered upon departing the United States. As a result, the ten-year bar prevents an individual from re-entering the United States for at least ten-years after their departure. This has been a long-standing problem for undocumented immigrants because the bar is triggered even when an individual leaves to obtain a visa at a U.S. Consulate or Embassy abroad.

To overcome the ten-year bar, work visa applicants are forced to obtain a discretionary waiver from the U.S. Customs and Border Protection’s Admissibility Review Office. This waiver is known as the INA 212(d)(3) waiver and is designed to excuse certain grounds of inadmissibility including unlawful presence. An approved waiver removes the bar and allows such individuals to apply for temporary work visas at U.S. Consulates and Embassies. Only once the U.S. work visa is issued, can the individual re-enter the United States in nonimmigrant visa status and work for their employer pursuant to the terms of the employment visa.

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joshua-sukoff-SYHi8oX0JC8-unsplash-scaledThis is a developing story

The world of immigration has been shaken up by new reports that the Biden administration intends to release a groundbreaking executive action on immigration. The President’s order could soon allow spouses of U.S. Citizens to legalize their status in the United States.

According to government officials speaking on condition of anonymity, full details of the executive action are expected to be released as early as Tuesday – the twelfth anniversary of the Deferred Action for Childhood Arrivals (DACA) program. If passed, it would be one of the largest immigration relief proposals in recent history.

Essentially, a plan has been in the works to create a program known as “Parole in Place” that would offer work permits and deportation protections to undocumented immigrants married to U.S. Citizens, so long as they have lived in the United States for at least 10 years.

Such a program would eliminate the need for spouses of U.S. Citizens to travel outside of the United States to legalize their status through an extreme hardship “waiver” process, that has posed obstacles for many to become legalized.

Instead, the program would open a pathway to permanent residence for spouses of U.S. Citizens to adjust their status to permanent residence from the United States, without having to depart the country.

If passed, the White House’s measure could benefit more than 1.1 million undocumented spouses of U.S. Citizens, if they can meet the eligibility requirements.

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The Department of Homeland Security and Justice Department recently announced a new plan to expedite immigration court proceedings for asylum seekers who have recently arrived in the United States without lawful status.

On May 16th senior administration officials from the Department of Homeland Security and Justice Department made it known to the public that a new Recent Arrivals (RA) docket process will allow undocumented immigrants to resolve their immigration cases more expeditiously – within a period of 180 days.

Under the RA Docket process, DHS will place certain noncitizen single adults on the RA Docket, and EOIR adjudicators will prioritize the adjudication of these cases.

The RA Docket will operate in five cities: Atlanta, Boston, Chicago, Los Angeles, and New York City. Immigration judges will aim to render final decisions within 180 days, although the time to make a decision in any particular case will remain subject to case-specific circumstances and procedural protections, including allowing time for noncitizens to seek representation where needed.

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Great news! The U.S. Citizenship and Immigration Services (USCIS) recently announced that eligible beneficiaries of the Uniting for Ukraine program, may apply to renew their parole and employment authorization starting February 27, 2024.

Who is eligible?

Ukrainian citizens and their immediate family members who were paroled into the United States on or after February 11, 2022, can apply for re-parole under the program. Using its discretion, USCIS can grant parole on a case-by-case basis.

To be eligible for re-parole, applicants must demonstrate the following:

  • You are a Ukrainian citizen or immediate family member who was paroled into the United States on or after February 11, 2022;
  • There are continued urgent humanitarian reasons or a significant public benefit for issuance of a new period of parole;
  • You warrant a favorable exercise of discretion;
  • You are physically present in the United States as a parolee;
  • You have complied with the conditions of the initial parole; and
  • You clear biographic and biometric background checks.

What benefits does the program provide?

The Uniting for Ukraine program allows eligible Ukrainians to remain in the United States temporarily and apply for work authorization, due to the extraordinary circumstances caused by Russia’s invasion in 2022. Since these circumstances continue to exist, USCIS will continue to accept requests for re-parole on a case-by-case basis.

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Ahead of the U.S. presidential election, President Biden is considering the rollout of a set of new executive actions aimed at curbing illegal migration at the U.S. southern border and measures that would create new obstacles for asylum applicants. Individuals speaking on condition of anonymity have said these policies could come as soon as March 7th as part of President Biden’s State of the Union speech.

According to reports by insiders of the Biden administration, the proposals under discussion would use a provision of the Immigration and Nationality Act (INA) to stop migrants from requesting asylum at U.S. ports of entry once a certain number of illegal crossings has been reached.

While the exact details of the executive order are still unclear, the proposal would likely carve out several exceptions for unaccompanied minors and those who meet the requirements of the United Nations Convention Against Torture. A similar proposal was previously discussed in the U.S. Senate as part of a border deal earlier this month.

To further appease conservative voters, the Biden administration is also considering implementing policies that would make it harder for migrants to pass the initial screening of the asylum interview process. Under these proposals, the administration would elevate the “credible fear standard” of the asylum process, thereby narrowing the pool of applicants eligible to seek asylum. Those who cannot meet the elevated standard, would be swiftly deported.

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Source: Flickr: Molly Adams, LA March for Immigrant Rights 

In a stunning turn of events, a federal judge on Wednesday declared the Deferred Action of Childhood Arrivals (DACA) program illegal in a new court ruling.

The decision comes after a five-year long court battle which has left the future of Dreamers hanging in the balance.

Judge Andrew S. Hanen of the District Court of Houston rejected the Biden administration’s efforts to save the DACA program, arguing that former President Barack Obama did not have the authority to create the program in 2012 by executive authority.

In his ruling, Judge Hanen stopped short of terminating the program which will mean that current DACA recipients can retain their DACA benefits and apply for renewals with the U.S. Citizenship and Immigration Services (USCIS). However, initial first-time applications for DACA will remain prohibited.

In 2021, the Biden administration sought to defend the legality of DACA by issuing a Proposed Rule in the Federal Register to preserve and fortify the program. This came after Judge Hanen issued a prior ruling arguing that the government failed to abide by the public notice and comment procedure required by the Administrative Procedures Act before. This prompted Texas along with eight other states (Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, Mississippi) to sue the federal government bringing the case before Judge Hanen yet again.

Unfortunately, the Biden administration’s efforts to appease the Judge did not work. Ultimately the Judge indicated that only Congress could enact legislation to protect Dreamers, and passing such a program was not under the authority of the President.

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50091854772_d0d3b61325_bMexico’s President Andres Manuel Lopez Obrador is set to visit the White House next month to discuss immigration and make a push for additional U.S. commitments to help curb rates of illegal immigration.

It has been rumored that during his visit, the Biden administration will announce an offer of 300,000 temporary work visas up for grabs for Mexican nationals and Central Americans.

Mexico’s Interior Minister Adan Augusto Lopez confirmed these reports in a business meeting explaining that the U.S. government has agreed to split the number of visas proportionally to both Mexican and Central Americans, in an effort to ease the migration challenges of both countries.

According to Lopez, “The American government agreed to issue, initially, 300,000 temporary work visas; 150,000 will be for Mexicans or for foreigners who are currently in Mexico waiting for the possibility to migrate north.” The Biden administration is expected to announce these measures during President Obrador’s visit in July.

“It’s a high price, in terms of social costs, for our country to be a crossing point for migrants and every day we’re talking with the American government to try to generate (better) conditions,” Lopez said in remarks during a business meeting in Tijuana, Mexico.

While the spokesperson at the U.S. Embassy in Mexico did not return requests for comment, it will be interesting to see how these developments will play out in the coming weeks.

Earlier this month, tensions grew between President Obrador and the Biden administration over the U.S. government’s decision to exclude Nicaragua, Cuba, and Venezuela from attending the Summit of the Americas due to human rights violations. Following the news, President Obrador declined to attend the Summit, and Foreign Minister Marcelo Ebrard took his place.

President Obrador’s visit will coincide with the 10th anniversary of the Deferred Action for Childhood Arrivals (DACA) program, prompting a renewed debate over U.S. immigration policy.

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We kick off the start of a brand-new week with some interesting revelations. On April 28, 2022, President Biden issued a letter proposing a new immigration measure that, if passed, could offer highly educated Russian nationals a pathway to permanent residency.

What is it all about?

The Russian invasion of Ukraine has left scientists and engineers seeking stable ground, with many young STEM talent looking to its European neighbors for employment opportunities.

In a letter to the House of Representatives, the Biden administration called for a measure to be approved as part of requested legislation for emergency supplemental funding to Ukraine.

Biden’s proposals seek amendment of Section 203(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(2)) effectively welcoming Russian STEM talent to the United States.

What does the measure propose?

By amending Section 203(b)(2), the U.S. government would essentially eliminate the need for Russian nationals, with a master’s or doctoral degree in a STEM field, to obtain an employment sponsor (job offer from a U.S. employer) and eliminate placement in the green card backlogs.

Under Biden’s proposal, adjudication of visas for such individuals would occur within just 90 days if possible, taking into account the need for security assessments. The proposed measure would end after four years (unless extended by Congress).

The measure has been proposed to ensure retention of talented Russian scientists and engineers. Interestingly, the letter highlights that the prospects of obtaining H-1B visa status for this group are lowered considering the numerical limits, and record H-1B registrations that far outweigh the number of available visas. In fiscal year 2023, USCIS announced that it received 483,927 H-1B registrations, a 57% increase over the last year. Only 127,600 registrations were selected to meet the H-1B quota (or 26% of total registrations).

Legislative Text

The legislative text of the provision reads as follows:

“IN GENERAL.— Section 203(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(2)) is amended by adding at the end the following:

“(D) Notwithstanding subparagraph (B), the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States shall not apply to aliens (and the parents, spouses, and children of such aliens if accompanying or following to join) who—

“(i) are citizens of Russia;

“(ii) have earned a masters or doctoral degree in the United States or an equivalent foreign degree in a field involving science, technology, engineering, or mathematics, including but not limited to degrees relevant to the following fields: Advanced Computing, Advanced Engineering Materials, Advanced Gas Turbine Engine Technologies, Advanced Manufacturing, Advanced and Networked Sensing and Signature Management, Advanced Nuclear Energy Technologies, Advanced Particle Detector Instrumentation Technologies, Artificial Intelligence, Autonomous Systems and Robotics, Biotechnologies, Communication and Networking Technologies, Cybersecurity, Directed Energy, Financial Technologies, Human-Machine Interfaces, Hypersonics, Advanced Missile Propulsion Technologies, Networked Sensors and Sensing, Quantum Information Technologies, Renewable Energy Generation and Storage, Semiconductors and Microelectronics, Space Technologies and Systems; and “(iii) are seeking admission to engage in work in the United States in an endeavor related to science, technology, engineering, or mathematics.”

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