On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April.

If you are not a U.S. citizen and you have been charged with a crime, it is crucial for you to consult with an experience immigration attorney before making any decisions in the criminal matter, such as accepting a plea bargain or taking your case to trial. A plea offer that is a “good deal” from a criminal law perspective may be a bad deal for your immigration status.

USCIS announced today that the final rule permitting certain H-4 spouses to apply for employment authorization will go into effect on May 26, 2015. The rule provides work permits upon application for H-4 spouses of H-1B nonimmigrants who are on the pathway to permanent residence, but who cannot yet apply for their green cards due to backlogs.

Specifically, starting on May 26, 2015, an H-4 spouse would be eligible to apply for employment authorization if:

• His/her H-1B spouse is the principal beneficiary of an approved I-140 petition; or
• His/her H-1B spouse is the beneficiary of an approved H-1B extension past the 6th year maximum based on AC21 (i.e., because at least 365 days have elapsed since an unexpired PERM labor certification application, or a pending I-140 petition, was filed for the principal beneficiary).

This has the potential to benefit the families of H-1B workers whose green card processes have been delayed significantly due to the annual limits on immigrant visa availability.  In particular, this benefits the H-4 spouses of H-1B workers chargeable to India or China, whose I-140 petitions were filed in the EB-2 or EB-3 preference categories and may be backlogged for many years.

This rule does not significantly affect H-4 spouses who have already applied for adjustments of status (as they can already apply for work permits through that process), nor is this rule applicable to H-4 spouses of H-1B1 (Chile/Singapore), H-2 or H-3 nonimmigrants.

This week, a federal judge in Texas granted a temporary injuction to stop implementation of executive action on Immigration Reform. We are confident that at the end of the legal process, the strong foundation for the President’s actions will end in a positive reuslt. Nevertheless, it’s likely there will be a short-term delay in the expansion of Deferred Action for Childhood Arrivals (DACA).

A. What is Deferred Action for Childhood Arrivals (“DACA”)?

Over the past several years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on national security, public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals (DACA) for a period of three years, subject to renewal for a period of three years, and may be eligible for employment authorization. Your request for DACA will be considered on a case-by-case basis and may be granted or denied at the agency’s discretion.

DACA was initially announced on June 15, 2012 via a memorandum from then-Secretary of Homeland Security Janet Napolitano.  On November 20, 2014, current-Secretary of Homeland Security Jeh Johnson issued a memorandum expanding guidelines for DACA in several key ways. Note, however, that the expanded DACA guidelines do not become effective until February 18, 2015.

Until the new guidelines go into effect on February 18, 2015, individuals may request DACA under the existing guidelines under the June 15, 2012 Napolitano memorandum.

Guidance on the expanded DACA guidelines under the November 20, 2014 memorandum is outlined below.

Beginning on February 18, 2015, you may request consideration for deferred action under DACA if you:

1. Came to the United States before reaching your 16th birthday;
2. Have continuously resided in the United States since January 1, 2010, up to the present time;
3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
4. Had no lawful status on June 15, 2012, meaning that:

• You never had a lawful immigration status on or before June 15, 2012, or
• Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012.

5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
6. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.

Q2: What is DACA?
A2: On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum that provided that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action, subject to renewal, and would then be eligible for work authorization.  On November 20, 2014, Secretary of Homeland Security Jeh Johnson supplemented and expanded that guidance. This supplemented and expanded guidance on DACA becomes effective on February 18, 2015.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for a discretionary grant of deferred action. Determinations will be made on a case-by-case basis under the DACA guidelines.

Q3: Is there any difference between “deferred action” and DACA under this process?
A3: DACA is one form of deferred action. The relief an individual receives under DACA is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

Q4: If my removal is deferred under the consideration of DACA, am I eligible for employment authorization?
A4: Yes. Under existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Q5: If my case is deferred, am I in lawful status for the period of deferral?
A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.

Apart from the immigration laws, “lawful presence,” “lawful status,” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

Q6: Can I renew my initial period of deferred action and employment authorization under DACA?
A6: Yes. You may request consideration for a renewal of your DACA. Your request for a renewal will be considered on a case-by-case basis. If USCIS renews its exercise of discretion under DACA for your case, you will receive deferred action for three years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.

USCIS recently published revised Form I-129, Petition for a Nonimmigrant Worker. The revised Form I-129 is labeled with an Oct. 23, 2014, edition date. You can view the revised form and details about who may file Form I-129 from the USCIS forms website.

People ask how will the government ensure that people eligible for DAPA and DACA are not deported before the Immigration Accountability Executive Action is in place?

On December 18, U.S. Citizenship and Immigration Services (USCIS) published two Federal Register notices. These notices relate to the Haitian Family Reunification Parole (HFRP) Program and the Cuban Family Reunification Parole (CFRP) Program. Please see specifics regarding both programs identified below.

HFRP Program:  On October 17, 2014, USCIS announced that it would begin preparatory work to implement a HFRP Program in early 2015. The purpose of the HFRP Program is to expedite family reunification for certain Haitian family members of U.S. citizens and lawful permanent residents (LPRs). By expanding existing legal means for Haitians to immigrate, the HFRP Program serves a significant public benefit by promoting safe, legal and orderly migration from Haiti to the United States.  In addition, it supports U.S. goals for Haiti’s long-term reconstruction and development.

On December 18, USCIS published a Federal Register notice establishing the HFRP Program. This program will allow certain eligible Haitian beneficiaries of family-based immigrant visa petitions approved on or before December 18, 2014, who are currently in Haiti, to be paroled into the United States up to approximately two years before their immigrant visa priority dates become current. Once paroled into the U.S., these beneficiaries will be able to apply for work permits while waiting for their immigrant visas to become available. Once their visa is available, they can apply for LPR status.

On or after February 2, 2015, the U.S. Department of State National Visa Center will begin sending invitations to eligible petitioners to apply for the HFRP Program on behalf of their family members. The invitation that is sent to eligible U.S. petitioners will provide instructions on how to file the Form I-131,Application for Travel Document, and submit the required fee or fee waiver request to apply.

 CFRP Program: In 2007, USCIS announced the CFRP Program in support of the U.S. Government’s commitment under the U.S.-Cuba Migration Accords to ensure the legal migration to the United States of a minimum of 20,000 Cubans annually. Under the CFRP Program, USCIS offers certain beneficiaries of approved family-based immigrant visa petitions the opportunity to be paroled into the United States to apply for lawful permanent resident status, rather than remain in Cuba waiting for their immigrant visas to become available. The purpose of the program is to expedite family reunification through safe, legal, and orderly channels of migration to the United States and to discourage irregular and inherently dangerous maritime migration.

On December 18, USCIS published a Federal Register Notice announcing changes to this program that will require invited petitioners to file a Form I-131,Application for Travel Document, and submit the required fee or fee waiver request to have their beneficiary considered for parole under the CFRP Program in the future. These changes bring parole requests under the CFRP Program in line with most other parole requests filed on behalf of individuals outside the United States, including parole requests under the HFRP Program.

USCIS will “grandfather” cases that were already in process prior to December 18, 2014. In addition, USCIS will “grandfather” cases filed by petitioners who received a program eligibility notice from the NVC at any time prior to December 18, 2014, and who submitted to the NVC before February 17, 2015, complete documentation necessary to apply for the CFRP Program. These “grandfathered” cases will not be subject to the new filing requirements, i.e., the submission of Form I-131 with the required fee or a fee waiver request. A complete application package will be grandfathered only if the required documentation is postmarked before February 17, 2015.

Much of the attention on President Obama’s Executive Action has focused on his use of prosecutorial discretion to defer deportation for millions of undocumented immigrants, including certain parents of U.S. citizens and Lawful Permanent Residents. But as part of the November announcement, President Obama also signed a memorandum to explore ways to upgrade parts of the immigration system to meet needs of an increasing global economy. And in a separate memo, Homeland Security Secretary Jeh Johnson outline how the policy changes at the U.S. Citizenship and Immigration Services (USCIS) will support U.S. economic growth. “These new policies and regulations will be good for both U.S. businesses and workers by continuing to grow our economy and create jobs.: Johnson wrote, adding that it will increase efficiency and save resources.

Johnson’s memo to USCIS covers changes to Optimal Practical Training (OPT) for foreign students at U.S. universities in science, technology, engineering, and mathematics (STEM) fields, modernizing the employment-based visa system to decrease backlogs, and other measures. The memo authorizes new ways for foreign entrepreneurs to have more opportunities to come to the U.S. and start businesses here. The “national interest waiver” in the Immigration and Nationality Act (INA) permits certain non-citizens with advance degrees or exceptional abilities to seek green cards without employer sponsorship if their admission is in the national interest and may be one route for foreign entrepreneurs. This memo directs USCIS to issue guidance or regulation to clarify the standard by which a national interest waiver may be granted, specifically how it would apply to inventors, researches, and founders of start-up enterprises, with the aim of promoting its greater use for the benefit of the U.S. economy.

The memo also describes another possible route for foreign entrepreneurs: parole (or parole-in-place if already in the U.S.) for inventors, researches, and founders of start-up enterprises. Using the “significant public benefit” parole authorities of the INA, a program would permit DHS to grant parole status on a case-by-case basis, “to inventors, researchers, and founders of start-u[ enterprise who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” This status would allow such individuals to work in the United States before they become eligible for a visa if they meet certain income and resource thresholds to qualify. Parole would allow these individuals to temporarily pursue research an development of promising ideas and businesses in the United States, rather than abroad.

Author: American Immigration Council Immigration Impact.

“What did the President do, exactly?”

The President announced one new program, expanded another, and made a lot of changes that will make immigration enforcement more humane and smarter.

The new program that everyone is talking about is called Deferred Action for Parents (DAPA). Under DAPA, the undocumented parents of United States Citizens or Legal Permanent Residents (green card holders) can register with the government and get work authorization if they came to the U.S. before January 1, 2010. The work authorization will be valid for 3 years. This new program has the potential to change the lives of up to 4.1 million people.

“What are the benefits of applying for DAPA?”

— Protects you from being arrested and deported for three years and can be renewed
— Provides an employment authorization document that will allow you to work legally
— Allows you to apply for a social security number
— In almost all states, you will be able to qualify for a driver’s license
— In many states, you will be able to qualify for instate tuition
— You may be able to apply to the government for a travel document that will allow you to leave and return to the U.S.

“Are there any dangers of applying for DAPA?”

We are still waiting to hear what confidentiality protections will be provided, both for the applicant and for others listed in the application. We are also waiting for details about what will happen to those who are denied.

Because DAPA, like DACA, is only a temporary permission to remain, it could be revoked at any time.

IMPORTANT: Be cautious about what you tell your employer. Saying that you are applying for DAPA might be interpreted as admitting that you are not authorized to be employed and could cost you your job.

“When can I apply for DAPA?” 

Not right now. Don’t be fooled by “notarios” and people who tell you otherwise. The government hasn’t set a date yet, but it will not be any later than mid-May.

In the meantime, you can start getting ready by collecting the information you might need to submit.