Visa Lawyer Blog

Articles Posted in Work permits

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The House of Representatives recently made a bold move that could give undocumented farmworkers a pathway to permanent residence.

Yesterday, December 11, 2019, by a vote of 260-165, the House passed the Farm Workforce Modernization Act, a progressive bill that if approved by the Senate, would create several exciting opportunities for undocumented farmworkers as well as U.S. employers.

What does the Bill propose?

The bill would allow existing agricultural workers in the United States to legalize their status through continued agricultural employment and contribution to the United States economy.

Which workers would be eligible for Permanent Resident Status?

Earned Pathway to Legalization

  • Individuals who have worked in agriculture in the U.S. for at least 10 years before enactment of the bill, must continue to work for at least 4 more years in agriculture on Certified Agricultural Worker (CAW) status before being eligible to apply for permanent residence OR
  • Individuals who have worked in agriculture in the U.S. for less than 10 years, must work at least 8 more years in agriculture on CAW status before being eligible to apply for permanent residence
    • Applicants who qualify based on one of these criteria would be required to pay a $1,000 fine

In addition, the bill would:

  • Create a new temporary worker visa program for current unauthorized farmworkers called Certified Agricultural Worker (CAW) status. CAW visas would be renewable and five-and-a-half years in length. The number of CAW visas would be uncapped.
  • Establish eligibility requirements of the CAW visa.Unauthorized immigrants who have spent at least 180 days of the last two years in agricultural employment would be eligible for the Certified Agricultural Worker Visa.
  • With few exceptions, applicants must meet existing work visa admissibility requirements to be eligible and must pass a criminal background check.
  • Felons and those who have been convicted of multiple misdemeanors (two or more offenses of moral turpitude or three offenses in general) would not be eligible.

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On September 23, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that current beneficiaries of Temporary Protected Status (TPS) under Syria’s designation, who want to maintain their status through March 31, 2021, must re-register between Sept. 23 and Nov. 22, 2019.

All applicants must submit Form I-821, Application for Temporary Protected Status and request an EAD by submitting Form I-765, Application for Employment Authorization, when they file Form I-821 or separately at a later date.

USCIS will issue new EADs with a March 31, 2021 expiration date to eligible beneficiaries under Syria’s TPS designation who timely re-register and apply for EADs.

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Validity of TPS EADs with a September 9, 2019 Expiration Date Remain Valid through January 2, 2020 for El Salvador, Sudan, Nicaragua, and Haiti

The DOJ has announced that Employment Authorization Cards received under the Temporary Protected Status country designation for El Salvador, Sudan, Nicaragua, and Haiti, with a September 9, 2019 expiration date will remain valid through January 2, 2020.

Earlier this year, the government published a notice in the Federal Register indicating that DHS would be automatically extending through January 2, 2020, the validity of TPS-related Employment Authorization Documents (EADs), Forms I-797, Notice of Action (Approval Notice), and Forms I-94 (Arrival/Departure Record) (collectively “TPS-Related Documentation”), for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador, provided that the affected TPS beneficiaries remain otherwise individually eligible for TPS.

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Photo: Christian Leo Seno
Flickr

The United States Supreme Court has announced that it will decide the fate of DACA, Deferred Action for Childhood Arrivals, during its next term, beginning in October, with a decision likely to be handed down by the Court in early 2020.

The Court’s decision to take up the issue of DACA will take place during a highly contentious political climate as Americans prepare to vote in the 2020 Presidential election.

Adding to the great divide among Americans about the future of DACA, is the Supreme Court’s current ideological split. At the moment, the Supreme Court is evenly split with 4 liberal justices and 4 conservative justices. Justice Alito, the “swing” voter is likely to cast the decisive vote.

As constitutional history has suggested, DACA is likely to find support among the liberal justices on the bench including Ginsburg, Sotomayor, Kagan, and Breyer, while finding opposition from Justices Thomas, Alito, Gorsuch, Kavanaugh, and Chief Justice Roberts.

This will not be the first time the Supreme Court hears a case involving the constitutionality of the DACA program.

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On August 1, 2019, the United States Citizenship and Immigration Services (USCIS) announced that Syrian nationals currently receiving benefits under Temporary Protected Status (TPS) may re-register through March 31, 2021, to maintain their status under the program.

Re-registration instructions and information on how to renew employment authorization will soon be published on the USCIS website and the federal register.

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 new expiration date.

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New Zealand Now Eligible to Apply for E-1 and E-2 Investor Visas

Beginning June 10, 2019, New Zealand nationals can apply for the E visa categories thanks to the President’s enactment of the Knowledgeable Innovators and Worthy Investors (KIWI) Act. Applicants who are already in the United States on a valid non-immigrant visa may now apply for a change of status to an E visa.

The E visa does not provide a direct path to permanent residency, but it is a great option for individuals who wish to live and work in the United States with their families for a temporary period of time. There is no set limit on the maximum amount of time an individual may remain on the E visa, but applicants must intend to depart at the end of their period of authorized stay in the United States.

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In this blog post, we answer one of your frequently asked questions: can I work while my adjustment of status application, Form I-485, is in process?

Form I-485 is an application that must be filed to register a foreign national’s permanent residence or adjustment of status. As part of the adjustment of status process, an applicant can also file Form I-765 Application for Employment Authorization, which is an application for a work permit. The I-485 and I-765, along with other forms, are typically filed concurrently. The I-765 application can also be filed separately, so long as the Form I-485 remains pending with USCIS.

Once Form I-765 Application for Employment Authorization is filed with USCIS, along with Form I-485, the applicant must wait for the application to be adjudicated. The amount of time that it takes for Form I-765 to be adjudicated depends on your service center.

Once Form I-765 is adjudicated, the application culminates in what is known as an “employment authorization card” or EAD, which is essentially a work permit.

The employment authorization card grants the foreign national the ability to work lawfully in the United States, obtain a social security number, open a bank account, and obtain a driver’s license.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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In response to a court ordered preliminary injunction, that blocked the government’s plans to end the temporary protected status (TPS) of immigrants from El Salvador, Sudan, Haiti, and Nicaragua, the government has outlined a detailed plan to comply with the judge’s order.

As previously reported, U.S. District Judge Edward Chen issued a preliminary injunction temporarily stopping the United States government from rescinding the temporary protected status designation for immigrants from Sudan, El Salvador, Haiti, and Nicaragua.

Before the preliminary injunction the TPS designations would officially terminate as follows:

  • Sudan, TPS Designation was to terminate on November 2, 2018
  • Nicaragua, TPS Designation was to terminate on January 5, 2019
  • Haiti, TPS Designation was to terminate on July 22, 2019
  • El Salvador, TPS Designation was to terminate on September 9, 2019

To comply with the court order, USCIS has notified the court that the agency will be publishing a notice in the Federal Register, announcing that the TPS designations for Sudan, Haiti, El Salvador, and Nicaragua will remain in effect as long as the preliminary injunction remains in effect pending the resolution of the case. The Department of Homeland Security will continue to recognize the validity of TPS-related Employment Authorization Documents (EADs), Form I-94 Arrival and Departure Records, and Forms I-797 Notices of Action otherwise known as Approval Notices, to demonstrate the lawful status sand employment authorization of affected TPS beneficiaries.

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Photo by Thomas Hawk, Flickr

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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