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On April 15, 2015, the federal district court in the Northern District of Florida issued an order effectively permitting the U.S. Department of Labor (DOL) to continue issuing temporary labor certifications under the H-2B visa program through May 15, 2015. As a result, DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.

On March 4, the court vacated DOL’s 2008 H-2B regulations on the grounds that DOL lacks authority to issue regulations in the H-2B program. DOL and the Department of Homeland Security (DHS) are working to publish regulations to minimize future interruptions to the H-2B program.

USCIS Resumes Premium Processing for H-2B Petitions

On April 20, 2015, USCIS will resume accepting premium processing requests for Form I-129 H-2B petitions. USCIS had announceda temporary suspension of premium processing for all H-2B petitions on March 9, 2015. 

On April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. USCIS first announced in a news release that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season.

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

Oral argument in Texas v USA. Click  here.

Families are waiting years to reunite with loved ones. Business cannot hire the workers they need. And millions of families and workers have no way to legalize their status.

It Easier to Find a Doctor to perform you medical exam for immigration purpose.

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.