Articles Posted in Work permits

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Extension of TPS Designation for Yemen

The Department of Homeland Security has announced an extension of the TPS designation of Yemen for a period of 18 months, from September 4, 2018 to March 3, 2020.

Re-registration is limited to persons who have previously registered for TPS under the designation of Yemen and whose applications have been granted.

For individuals who have already been granted TPS under Yemen’s designation, the 60-day re-registration period runs from August 14, 2018 through October 15, 2018.

USCIS will issue new EADs with a March 3, 2020 expiration date to eligible Yemeni TPS beneficiaries who timely re-register and apply for EADs

Proposed Rule on Public Benefits

Yesterday, October 10, 2018, a notice of proposed rulemaking (NPRM) was officially published in the federal register for the proposed rule that may soon restrict admission of certain immigrants and non-immigrants reliant or likely to become reliant on public benefits.

The comment period on the proposed rule has begun and will remain open until December 10, 2018. After the period for public comments has closed, the government will review the comments and make any changes to the rule as deemed necessary. The government will then publish a final version of the rule in the federal register, and it will be enforced on or after 60 days from the date of publication of the final rule in the federal register.

Under the proposed rule, receipt of the following types of public benefits would make an applicant a public charge:

  • Federal, state, local or tribal cash assistance for income maintenance
  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Security Income
  • Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education)
  • Medicare Part D Low Income Subsidy
  • The Supplemental Nutrition Assistance Program (SNAP, or food stamps)
  • Institutionalization for long-term care at government expense
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Public Housing
  • DHS is considering adding to the list of included benefits the Children’s Health Insurance Program (CHIP), formerly known as the State Children’s Health Insurance Program (SCHIP)

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“Fake Dates” Appear on Notices of intent to Deny

Across the nation, news outlets are reporting that dozens of individuals have received court orders from Immigration and Customs Enforcement (ICE) ordering them to appear in court by a certain date.

The problem? When these individuals showed up to court on the date indicated on the notice, they were turned away by court staffers who notified them that their names were not listed on the judge’s official dockets.

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I-751 Change to Filing Location

Today, Monday September 10, 2018, the United States Citizenship and Immigration Services announced a change to the filing location for Form I-751 Removal of Conditions. The agency is now directing petitioners to send Form I-751 to a USCIS Lockbox facility instead of directly to the California and Vermont service centers. California, Nebraska, Vermont, and Texas will distribute the load of removal of conditions applications and adjudicate these petitions accordingly. When filing at a Lockbox facility, the petitioner may pay the filing fee with a credit card using Form G-1450.

TPS Somalia

USCIS has automatically extended the validity of Employment Authorization Documents (EADs) issued under the TPS designation of Somalia with an original expiration date of Sept. 17, 2018, for 180 days, through March 16, 2019.

Somalian nationals whose EADs expired on March 17, 2017, and who have applied for a new EAD during the last re-registration period, but have not yet received their new EAD card, are covered by the automatic extension.

If your EAD is covered by this automatic extension, you may continue to use your existing EAD through March 16, 2019, as evidence that you are authorized to work.

To prove that you are authorized to continue working legally, you may show the following documentation to your employer:

  • Your TPS-related EAD with a Sept. 17, 2018 expiration date; or
  • Your TPS-related EAD with a March 17, 2017 expiration date and your EAD application receipt (Form I-797C, Notice of Action) that notes your application was received on or after January 17, 2017

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A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.

In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.

However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).

New Policy

On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.

Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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TPS Updates: Re-Registration Period is Now Open for Hondurans with TPS

Current beneficiaries of Temporary Protected Status (TPS) under the Honduras country designation, who wish to maintain their TPS benefits, such as ability to continue working in the United States through the official termination date of the TPS program on January 5, 2020, must re-register for TPS benefits between June 5, 2018 and August 6, 2018.

Re-registration instructions are now available on the USCIS TPS website.

Re-registration Procedure:

Applicants must file Form I-821 Application for Temporary Protected Status as well as Form I-765 Application for Employment Authorization, preferably at the same time, but applicants may also file Form I-765 separately at a later date.

New EADs with a January 5, 2020 expiration date will be issued to Honduran TPS beneficiaries who apply within the re-registration period ending on August 6, 2018. USCIS will make every effort to issue new EADs before current EADs expire, however there are no guarantees given the amount of time required to process TPS re-registration applications.

USCIS has automatically extended the expiration date on EADs issued under the TPS designation of Honduras for 180 days, through January 1, 2019. This extension applies to individuals who have EADs that expired on January 5, 2018 and applied for a new EAD during the last re-registration period but have not yet received a new EAD.

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In this post, we bring an important reminder to the attention of F-1 Students with Optional Practical Training. F-1 students who transfer to another school or begin their studies at another educational level, such as a master’s degree program after completion of the bachelor’s degree, will have their OPT automatically terminated, as well as the corresponding employment authorization document, also known as a work permit.

F-1 students who transfer schools or begin studying at another educational level, will not be otherwise affected, so long as they comply with all of the requirements necessary to maintain their student status. F-1 students must not work with a terminated/expired EAD. Doing so violates U.S. law, and will result in serious immigration consequences, such as the removal of the foreign national from the United States or barring the foreign national from re-entering the United States, in addition to other serious consequences such as the accrual of unlawful presence.

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Federal Judge John Bates of the Federal District Court for the District of Columbia has spoken to protect Dreamers from deportation, where Congress has remained silent. In a Tuesday ruling, Judge Bates called the Department of Homeland Security’s decision to rescind the DACA program “arbitrary and capricious,” and with no sufficient basis to justify rescission of the program, ordered DHS to accept and process new as well as renewal DACA applications.

As part of his opinion Judge Bates vacated the Trump administration’s decision to rescind DACA, for a period of 90 days, giving the Department of Homeland Security an opportunity to explain its decision to rescind the DACA program. If the government fails to adequately explain the grounds for finding the DACA program to be unlawful, DHS must accept and process new and renewal DACA applications. DHS has responded to the ruling in a statement where it vowed to “continue to vigorously defend” its decision to rescind the DACA program and looks “forward to vindicating its position in further litigation.”

This ruling is the third in recent months against the Trump administration’s decision to rescind the DACA program.  Earlier this year, Federal Judges in Brooklyn and San Francisco issued similar rulings to keep the DACA program in place, however the Bates ruling is the first ordering the government to accept new DACA applications.

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On March 5, 2018, the United States Citizenship and Immigration Services (USCIS) announced that Syrian nationals currently receiving benefits under Temporary Protected Status (TPS) may re-register between March 5, and May 4, 2018, to maintain their status under the program.

Re-registration instructions and information on how to renew employment authorization have been published on the USCIS website.

Applicants must re-register by submitting Form I-821 Application for Temporary Protected Status to maintain TPS benefits, and may submit a properly completed Form I-765 Application for Employment Authorization to renew employment authorization documents (EAD) at the same time. Alternatively, TPS applicants may file Form I-765 at a later date.

Those who are eligible to apply will receive new employment authorization documents with a September 30, 2019 expiration date. For individuals who have filed for TPS re-registration, USCIS will automatically be extending the validity of EADS that expire on March 31 for a period of 180 days, through September 27, giving USCIS enough time to process applications while at the same time allowing TPS beneficiaries to continue working without interruptions.

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During December of last year, the United States Citizenship and Immigration Services (USCIS), announced that the agency was beginning to take preliminary steps to terminate H-4 Employment Authorization for certain H-4 spouses, a privilege that has been available to eligible spouses of H-1B nonimmigrant workers since 2015. As it stands, the 2015 H-4 EAD rule allows certain H-4 dependent spouses of H-1B nonimmigrant workers the ability to obtain an employment authorization card (work permit), provided the H-1B nonimmigrant worker is in the process of obtaining an employment based green card.

Proposal to Amend the 2015 H-4 EAD Rule

On December 14, 2017, a rulemaking notice was first published in the Federal Register notifying the public that the Department of Homeland Security, in conjunction with USCIS, would be reviewing and possibly amending the 2015 H-4 EAD rule, following the issuance of Executive Order 13788, “Buy American, Hire American.”

According to the notice published in the Federal Register, DHS reserves the authority to amend the 2015 H-4 EAD rule under section 102 of the Homeland Security Act of 2002 and section 103(a) of the Immigration and Nationality Act (INA). These sections of the law give the Secretary of the Department of Homeland Security the discretionary power to amend the law so that it aligns with the policies set out in the President’s executive order.

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