Category: Immigration Law in the News

President Obama Announces Immigration Reform

 

We are pleased to announce that President Obama unveiled a long-awaiting plan to reform the immigration system on November 20, 2014.  His executive action brings immediate relief to as many as 4.4 million undocumented foreign nationals living in the US through a few key programs:

 

Deferred Action for Childhood Arrivals (DACA):  The DACA program allows people who came to the US before the age of 16 and meet certain qualifications to remain in the United States without fear of deportation and receive work authorization.  Under President Obama’s executive order, the expanded DACA program removes the upper age limit for qualified applicants and extends the work authorization to 3 years.  The USCIS has announced that it will begin to accept work permit applications for this new category of DACA applicants in 90 days.

 

Deferred Action for Parents (DAP):  This new program will allow parents with US citizen or Lawful Permanent Resident children to remain united with their families. These parents must have been in the US since January 1, 2010, pass a criminal background check, and pay back taxes in order to qualify.  The USCIS expects to start accepting applications for work permits to qualified DAP applicants in 180 days.

 

Provisional WaiversThe executive order expands the provisional waiver program to allow spouses of lawful permanent residents and sons or daughters of both US citizens and lawful permanent residents to apply for waivers.  These waivers are required when the foreign national is eligible for a green card, but have been in the United States unlawfully.  Under this program, the applicant can apply for the waiver in the United States, then once the waiver is approved, leave the United States to obtain an immigrant visa at a US embassy abroad, thereby avoiding months or even years of separation from family members while awaiting waiver processing abroad.

 

President Obama’s executive action also has a significant and positive impact for U.S. businesses and highly skilled professional workers by announcing several reforms to employment-based visas.  The agencies implementing these programs will announce the details over the coming months, but below are the broad outlines of these changes:

 

Benefits for Employees With Approved Immigrant Visas Awaiting a Priority Date:  Under the current system, an employee with an approved immigrant visa must wait for their priority date to become current before being eligible to apply for a green card.  Under this initiative, 410,000 employees awaiting green card visa numbers could apply for certain benefits such as Employment Authorization Documents (EAD) and Advance Parole (travel) documents.   US Citizenship and Immigration Service (USCIS) must write implementing regulations for this initiative; thus these changes will not go into effect for several months.

 

Revamp the Allocation of Immigrant Visas:  Currently the Department of State uses a complicated system to determine how to allocate immigrant visas that allow beneficiaries to apply for green cards.  Under President Obama’s executive action, the USCIS will work with the Department of State to simplify the existing system and ensure all immigrant visas are issued each year.  This could result in the recapturing of thousands of unused visa numbers.

 

Worker Portability Under AC-21: Under current law, an employment-based adjustment of status applicant can change jobs after the application has been pending for 180 days, but only if the new position is in a “same or similar” occupational classification as the position through which s/he obtained the immigrant visa.  The USCIS will issue a policy memo to clarify the meaning of “same or similar,” thereby allowing workers for example to accept promotions to a supervisory level or accept related jobs in their field without fear that their underlying approved immigrant visas will no longer be valid.

 

Work Authorization for H-1B spouses:  USCIS will publish a final rule allowing the H-4 spouses certain of H-1B workers to apply for employment authorization.  The H-1B holder must 1) have an approved immigrant visa petition or 2) have a PERM labor certification pending for at least one year.  This regulation is expected to be published in the next several months.

 

L-1B Specialized Knowledge: The L-1B intracompany transfer program allows the transfer of employees from a foreign entity to the US who have “specialized knowledge” of the company’s products or processes.  The USCIS will issue a policy memo to provide clear guidance on the meaning of “specialized knowledge,” which will bring about more consistency in adjudications, a higher approval rate, thus making the L-1B visa status more accessible to qualified employees.

 

Optional Practical Training (OPT) Work Authorization: Currently, foreign students in F-1 student status are eligible for 12 months of OPT work authorization.  If they are students in science, technology, engineering, and mathematics (STEM) fields, they can apply for an additional 17 months of OPT.  Under President Obama’s new initiative, USCIS and Immigration and Customs Enforcement (ICE) will develop regulations to increase the length of OPT time and expand the type of degree programs eligible for this extended OPT work authorization period.  These changes are expected in the next several months.

 

National Interest Waivers and Parole for Inventors, Researchers, Founders:  The USCIS will issue guidance to clarify the standard by which to grant national interest waivers to foreign inventors, researchers, and founders of start-ups. USCIS will also initiate a program granting “parole” to inventors, researchers, and founders at an early stage in their careers or positions who do not yet qualify for a national interest waiver, but who have either been awarded US financing or hold the promise of innovation.  This “parole” will allow these individuals to enter the US temporarily to pursue their activity.

 

Labor Certifications: The Department of Labor will review the existing PERM program and initiate changes to modernize the system so that it aligns with the current recruitment practices for most professional occupations.  The exact changes to the PERM system have not been announced yet.  Further guidance is anticipated shortly.

 

Although Congress has yet to act on immigration reform, we applaud President Obama for taking a step to fix our broken immigration system.  There will be further discourse on these programs as Congressional leaders have vowed to block their implementation, but we are hopeful that millions of workers and families will benefit from this key policy announcement.  We look forward to keeping you updated over the coming weeks and months as the details are unveiled.

 

If you feel that you may benefit from any part of President Obama’s executive action, please contact the Law Office of Melissa Harms at 415.945.9600 extension 2 or via email at consultations@harms-law.com to schedule a consultation.

It’s H-1B Season!

The FY2014 H-1B cap filing period will open 04/01/2013 (for a 10/01/2013 start date).  The H-1B, “specialty occupation” visa is the most commonly used visa for employment purposes.  To qualify for an H-1B visa, the position must require the theoretical and practical application of a body of highly specialized knowledge.   To approve an H-1B application, the USCIS requires the position to require a Bachelor’s level degree (or the equivalent) in a specialized field and the foreign national to possess a Bachelor’s degree (or equivalent) in this field.

As you may know, there is a limited number of H-1B slots each year (known as the H-1B quota).  Currently, there are 65,000 slots afforded to foreign nationals with a Bachelor’s degree or higher and 20,000 afforded to U.S. Master’s degree holders.  In prior years, the quota was reached within days of April 1.  Last year, the quota remained open from April 1, 2012 until June 11, 2012.  There is no telling what will occur this year as the results are often unpredictable but it is anticipated that the cap will be reached within a month or less.  Accordingly, we plan to file all H-1B petitions on March 29, 2013 for an April 1, 2013 arrival at the immigration service.  This leaves under 3 months to prepare these petitions.

Please contact our office as soon as possible if you’d like to file an H-1B petition under this year’s cap.  We would be pleased to assist you with this process.

House Votes to End Per-Country Limits for Skilled Workers Seeking Green Cards

Last week, the house voted 389-15 to end per-country limits on worker based immigration visas, a move that will benefit skilled Indian and
Chinese residents seeking to stay in the United States.  The bad news is that foreign workers from other countries will now be subject to several year waits in the previously available “second-preference” category.

The measure would eliminate a current provision in the law that provides that employment based visas to any one country cannot exceed seven
percent of the total 140,000 allocated each fiscal year.

Although this provision will benefit those from over-subscribed countries such as India and China, those from “All Other
Countries” in the second preference category which previously did not have to wait for a current visa number to file their adjustment of status applications,
may now need to wait several years for a visa number before filing their applications for permanent residency.  Please see the current State Department visa bulletin which outlines which individuals may file their permanent residency applications each month based on their country of birth and priority date (date labor certification or immigrant visa petition is filed):

For more information about visa numbers and the current visa allocation visit the Immigrant Visa page of our website.

This bill must now pass the Senate and be signed by President Obama, but given the limited opposition to its passage in the House, it has a very real chance of becoming law in the short term.

 

Alabama Immigration Law Blocked

A federal judge temporarily blocked enforcement of Alabama’s new law cracking down on illegal immigration, ruling Monday that she needed more time to decide whether the law opposed by the Obama administration, church leaders and immigrant-rights groups is constitutional.

This means the law won’t take effect as scheduled on Thursday.   The brief order did not go into whether the law is constitutional, and the judge could still let all or parts of the law take effect later. A longer ruling will be issued by Sept. 28 after the judge has had more time to consider lawsuits filed by the Justice Department, private groups and individuals that claim the state is overstepping its bounds with the law.

The law includes provisions requiring police to verify the status of people stopped whom they suspect may be in the country illegally. The law also makes it a crime to knowingly rent housing to unlawful immigrants.  It would require schools to verify the citizenship status of students. Officials say it wouldn’t prevent illegal immigrants from attending public schools. Both supporters and opponents say Alabama’s law is the nation’s toughest against illegal immigration.

Read more:

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2011/08/29/national/a120401D24.DTL

Foreign Students Protest

About 400 foreign students walked off their jobs last week at a plant here that packs Hershey’s chocolates, saying the J-1 summer program which is supposed to be a cultural exchange had instead turned them into underpaid labor.  The students, from countries including China, Nigeria, Romania and Ukraine, came to the United States through the long-established State Department summer visa program that allows them to work for two months and then travel. They said they were expecting to practice their English, make some money and learn what life is like in the United States. The students were put to work lifting heavy boxes and packing Reese’s candies, Kit-Kats and Almond Joys on a fast-moving production line, many of them on a night shift. After paycheck deductions for fees associated with the program and for their rent, students said at a rally in front of the huge packing plant that many of them were not earning nearly enough to recover what they had spent in their home countries to obtain their visas.

Although the J-1 summer program has drawn complaints recently from students about low wages and unexpectedly difficult work conditions this appears to be the first time that foreign students have engaged in a strike to protest their employment.

The arrangements that brought the foreign students to work at the Eastern Distribution Center III near Hershey, PA involved layers of contractors. A spokesman for Hershey’s, Kirk Saville, said the chocolate company did not directly operate the Palmyra packing plant, which is managed by a company called Exel. A spokeswoman for Exel said it had found the student workers through another staffing company.  The students said they mainly placed blame on the organization that manages the J-1 visa program for the State Department, the Council for Educational Travel, U.S.A., which is based in California.

If you have any questions about the J-1 visa program or student visas please contact our office at info at harms-law.com.

You can read more about this story at http://www.nytimes.com/2011/08/18/us/18immig.html?pagewanted=1&hpw

USCIS Trying to Keep Startups in the U.S.

The USCIS has announced a new initiative designed to attract and retain foreign entrepreneurs, particularly in the high-tech sector, who wish to launch start-up companies in the U.S.   This initiative will include changes to current visa programs and training for visa officers with the objective of enabling more entrepreneurs to gain entry into the U.S. and of bringing more speed and efficiency to the visa-application process.

Here are some of the proposed changes:

EB-2 Immigrant Visas: foreign entrepreneurs will be eligible without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.

H-1B Visas: The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs. A sole entrepreneur can now qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.

EB-5 Investor Visas: Additionally, the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.

If you have any questions about this new government initiative or any of these visas please contact our office at info at harms-law.com.

Here is a link to the Wall Street Journal article discussing this initiative: http://online.wsj.com/article/SB10001424053111904292504576482573203358158.html

Department of Justice Challenges Alabama Immigration Law

The Department of Justice challenged the state of Alabama’s recently passed immigration law, H.B. 56, in federal court this week stating that the law conflicts with federal immigration law and undermines the federal government’s immigration enforcement priorities and objectives.  Alabama’s law is designed to affect virtually every aspect of an unauthorized immigrant’s daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school. H.B. 56  criminalizes mere unlawful presence and, like Arizona’s law, expands the opportunities for Alabama police to push aliens toward incarceration for various new immigration crimes by enforcing an immigration status verification system. The federal government’s suit is consistent with the department’s position in United States v. Arizona, in which the department last year successfully obtained a preliminary injunction against Arizona’s S.B. 1070.  The government’s brief said that the mandates that H.B. 56 imposes on Alabama law enforcement may also result in the harassment and detention of foreign visitors, legal immigrants and even U.S. citizens who may not be able to readily prove their lawful status.  The government further argues that the Alabama law would impose  burdens on children by demanding that students prove their lawful presence, which could discourage parents from enrolling their children in school.

Governor signs private-scholarship part of Dream Act

California Gov. Jerry Brown signed legislation Monday extending scholarship opportunities to undocumented immigrant students, part of landmark “Dream Act” legislation. A more controversial portion of the act, to allow undocumented students to receive publicly funded financial aid, is still pending in the Legislature.  The two bills differ from a federal proposal with the same name in that the state Dream Act does not provide a path to citizenship.

The bill Brown signed today, Assembly Bill 130, allows students who are in the country illegally but qualify for in-state tuition to apply for private financial aid. The Democratic governor is likely this year to sign the broader companion bill, Assembly Bill 131, allowing illegal immigrants to seek public aid, including Cal Grants. His predecessor, Republican Gov. Arnold Schwarzenegger, vetoed similar legislation.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/26/BA7S1KES77.DTL

I-9 Audits and Business

While the administration of George W. Bush focused on headline-making raids that resulted in arrests of immigrant workers, the Obama administration has gone after employers with ICE’s I-9 audits on the theory that employers who hire unauthorized workers create the demand that drives most illegal immigration. Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity and employment eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. Additionally, an employer must ensure that the employee provides certain information regarding his or her eligibility to work on the Form I-9.  The New York Times ran a story on July 14, 2011 that discussed the effect that an I-9 audit can have on a business.  The article focuses on the case of a California employer, David Cox, whose I-9 audit revealed that 26 of his 99 employees were not authorized to work in the United States. Because ICE determined he had acted reasonably in hiring them, Mr. Cox was not fined or held criminally liable. But after confirming that the 26 employees could not produce authentic documents, he was forced to fire them.  The article discusses the economic effect that this had on his business.

Here is the link to the full article:

http://www.nytimes.com/2011/07/14/business/smallbusiness/how-a-small-business-can-survive-an-immigration-audit.html?_r=1&sq=immigration&st=cse&scp=3&pagewanted=all

Immigration Protests at the All Star Game

Jon Stewart again offered some humor on the humorless situation in Arizona in his report titled  The Naturalized.  Last year Arizona Governor Jan Brewer signed a bill that made it a crime to be an undocumented immigrant in the state.  The law is being challenged in federal court.  On Tuesday critics of the polarizing immigration law in Arizona protested in triple-digit heat outside Major League Baseball’s All-Star Game in downtown Phoenix, drawing sideways glances from fans who were more interested in getting to the game. The protests were not as big as predicted.   Last year after SB1070 initially passed, activists called for baseball to move the All-Star game from Arizona. Commissioner Bud Selig declined and said it was a political issue, prompting critics to ask players, coaches and fans to boycott the game as part of a wider call for companies to stop doing business with Arizona. Although at the time several baseball players spoke out against the law and said they might skip the All-Star game if picked, the protests largely fizzled out and there was no indication Tuesday that any players or coaches wouldn’t play because of the law.

Two separate pro-immigrant groups protested outside of Chase Field before the game, with one quietly passing out white ribbons that symbolized peace and unity and the other loudly chanting in bullhorns and marching in circles with signs that read “Boycott hate” and “Stand with us.”