Summary of the President’s Executive Action

The following summary of the President’s proposed executive action was obtained by the American Immigration Lawyer’s Association earlier today:

1. Enforcement Priorities. Many of the existing memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo that will name three enforcement priorities, which will be operational immediately:

1. Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border;
2. People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/14)
3. Those who, after 1/1/14, failed to leave under a removal order or returned after removal.

The memo will contain “strong language” on using prosecutorial discretion appropriately. While most other memos on the subject will be rescinded, the victims of crime memo and the USCIS memo on issuance of NTAs will stand.

2. Border Security. The Secretary of DHS will announce a South Border “command and control” campaign to coordinate and better use resources at the border.

3. State and Local. Secure Communities will be discontinued and replaced by a Priority Enforcement Program (PEP). What it means that Secure Communities will be discontinued is unclear. Unclear if they will stop fingerprinting people and unplug the technology and interoperability of the federal and local databases. Detainers will be discontinued for all except national security cases. Instead of detainers, there will be a request for notification when a law enforcement entity is about to release a convicted criminal.

4. Nothing on family detention will be included in this package.

5. No changes to Operation Streamline which targets immigration entry and reentry for federal prosecution.

6. Two deferred action initiatives that combined are estimated to benefit 4.4 million:

a. Deferred Action for Parents (DAP). Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since 1/1/10, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a 3-year period. The plan is to stand this up within 180 days (for applications to be accepted). Note that parents of DACA recipients are not eligible.
b. Expansion of DACA. DACA will be revised to get rid of the age cap, and to change the date that continuous presence must have started to 1/1/10. It also will be granted for 3 years (including those with pending renewal applications). Ready in 90 days.

7. Pending Proceedings. There will be a review of cases currently under proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.

8. Immigration Court Reforms. There will be a package of immigration court reforms that will include qualification of accredited representatives and ineffective assistance of counsel issues.

9. U/T Visas. Three more types of offenses will be added to the list of offenses for which DOL can certify for U status. No specifics were available regarding which offenses will be added. T visa
eligibility may also come into play with respect to DOL.

10. Worksite Enforcement. DOL will coordinate with other agencies regarding worksite enforcement activities.

11. Foreign Entrepreneurs. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time).

This will be done by regulation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. This will be implemented through policy guidance.

12. Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.

13. AC21. “Same or similar” will be clarified.

14. L-1B. The guidance will be released.15. H-4 EADs. The regulation will be finalized, probably in December or January.

16. OPT. The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. Other changes, such as
allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. This will be done by regulation.

17. PERM. A full rulemaking will be undertaken to modernize the PERM program.

18. I-601a Waivers. The provisional waiver will be expanded to include spouses and children of LPRs. The definition of extreme hardship will be expanded and clarified.

19. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS.

20. Parole in Place. PIP will be expanded to include families of individuals trying to enlist in the armed forces.

21. Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.

22. Integration. A second Presidential Memorandum will set up a Task Force on New Americans.

Information leaked concerning the President’s executive orders (Part 2)

What is the likely timing?

The news reports said that the planned release date is November 21st. Now that the story has been leaked, it may be that the White House will change that date. Over the past few weeks, the President has said consistently that he will act “before the end of this year.” Assuming that date is close to the actual announcement date, then it is possible to make some further assumptions as to the timing of subsequent events.

The December Visa Bulletin has already been released. While it is possible that the State Department will issue an update to make all employment based categories “current” as soon as the announcement is made, it is more likely that they will wait until the January Visa Bulletin to do this.

The January Visa Bulletin will be issued around the end of the first week in December, though it will not take effect until January 1, 2015. New applications for adjustment of status, based on that bulletin, may not be filed until the new year. Applications submitted prematurely will be denied. Given the massive number of expected new filings, it will be in your interest to be among the first to file.

For those who have pending AOS applications, it will be possible to begin making inquiries in December. Even though visa numbers may not be current yet, you can still make the USCIS aware of your pending application so that they can order the file returned from archives.

In reality, it will likely be months or years before the USCIS adjudicates all of the currently pending adjustment of status applications. For new filings in 2015, three to five years is a reasonable processing estimate. The USCIS simply doesn’t have the bandwidth to process massive numbers of applications.

What you can do to prepare if you are in lawful status

People who have approved PERM or I-140s should begin preparing immediately for filing their final green card applications. You can start by assembling the following documents:

*  Your brith record
*  A complete photocopy of all passports used since your last entry as a lawful nonimmigrant
*  Your I-94
*  A letter from your employer, verifying that the specific job shown in your PERM application is currently available to you

If you are married, you will also need:

*  Your marriage certificate

If you have children (irrespective of where born), you will also need:

* A copy of each child’s birth record

If you have dependents, they will need the same documents as you, except for the letter from your employer. If you do not have a copy of your birth or marriage record, go to this page http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html/ and enter the name of the country where the record was issued. When the new page comes up, scroll down past the visas and fees to the documents section. There you will find what you need to know about obtaining these documents.

Keep in mind that you will need certified copies of all documents. Anything that is not in English must be accompanied by a translation.

What you can do to prepare if you are not in lawful status

Not everyone who is out of status will be eligible for relief under the President’s plan. If you have a child in the United States, the odds are good that you will be included. The purpose of the new plan is to keep families together.

If you are out of status, and you have minor children in the U.S., there are a few things that you can do now so that you can act quickly “just in case” you find that you are eligible.

The first thing to do is document the fact that you have children. This means that you need to obtain certified copies of their birth records.

The next thing that you should do is document how long you have been residing in the United States. This can include such things as:

* copies of tax returns
* evidence of car registration going back many years
* employment verification letters
* rent receipts
* utility bills
* bank records
* children’s school records

Be creative and try to think of credible, objective evidence that shows how long you have lived in the U.S.

Once the announcement has been made, we will provide more information. For now, however, get started getting these documents.

Join the discussion at http://www.immigration-information.com

Information leaked concerning the President’s executive orders (Part 1)

Initially reported by Fox News, but subsequently confirmed by the New York Times, a White House memo describing the President’s proposed administrative immigration relief has leaked. The memo is said to describe ten separate actions. Between the two reports, it’s possible to determine eight of them:

  1. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away. That part of Mr. Obama’s plan alone could affect as many as 3.3 to 4.5 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.
  2. Extending protections to more undocumented immigrants who came to the United States as children, and to their parents, could affect an additional one million or more if they are included in the final plan that the president announces.
  3. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, making about 500,000 visas available.
  4. Shift extra security resources to the nation’s southern border,
  5. Revamp a controversial immigration enforcement program called Secure Communities,Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents.
  6. Provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history. A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.
  7. Increase pay for ICE employees
  8. DHS also is planning to “promote” the new naturalization process by giving a 50 percent discount on the first 10,000 applicants who come forward, with the exception of those who have income levels above 200 percent of the poverty level.

What will likely happen?

The most likely result for employment based immigrants will be all employment based visa preference categories, for all countries, becoming “current” immediately. If, as reported, this proposal injects a half million new visas into the EB quota, the number of available visas will be larger than the current backlog – much larger!The head of the State Department’s Visa Office has already offered his opinion on this matter. He believes that all visa categories will become “current” immediately and remain that way for many years into the future.Prospective employment based immigrants with approved labor certifications or approved I-140 petitions will become eligible to apply for green cards immediately. Others, with labor certifications in process will become eligible to apply as soon as their PERMs are approved.

For those who have adjustment of status applications pending, their applications will become eligible to be approved immediately. As a practical matter, it is going to take the USCIS some time to recall all of those cases from archives and process them to completion, so don’t expect to receive an approval notice the day after the President’s announcement.

Join the discussion at http://www.immigration-information.com

Possible Administrative Immigration Relief

Without a doubt, the hottest topic on our firm’s discussion forum (www.immigration-information.com) has been the subject of possible immigration relief through administrative action. Originally, the President promised to enact such relief “before the end of summer.” Then, for political reasons, he backed off and now says that he will announce it “before the holidays are over.”

There are multiple aspects to administrative relief. Some things can be done by changes in administrative regulations. Others can be done through simple changes in policy, while some will require an executive order, signed by the President.

The most controversial proposals involve illegal immigrants. There are, however, a number of proposals that will benefit employment-based immigrants, if adopted.

The administration has already published a proposed regulatory change to give work authorization to certain H-4 spouses. As proposed, eligibility would be limited to spouses of H-1B nonimmigrants who have received extensions beyond six years. The employment authorization grant would be unlimited, meaning that the H-4 spouse could work for anyone, doing anything – full or part time. The final rule could be promulgated as early as the end of this month, though it will likely take longer.

The most beneficial proposal, for employment based immigrants, is the notion of reinterpreting the quota statute so that it only applies to principal applicants and not their dependents. Charles Oppenheim of the State Department’s Visa Office has speculated that if this happens, all EB quotas would become “current” immediately, and remain that way for several years at least. This provision was part of Senate bill 744, passed by the Senate last year with a 68-32 vote.

The administration is also said to be considering deportation relief for approximately 5.2 million individuals who are here illegally. Eligibility would be based on whether the individual has children (irrespective of their place of birth) in the United States. This would be similar to the DACA program announced in 2012.

Qualifying individuals would have to apply to the immigration service for inclusion in the program. If eligible, they would be given permission to remain in the U.S., unrestricted work authorization, and even permission to travel abroad and return.

The likely window for announcement of administrative relief, if any, will be between Thanksgiving and Christmas.

James R. Gotcher | Attorney

2015 FISCAL YEAR H-1B QUOTA

As you may know, the filing window for the H1b quota for the fiscal year 2015 will open on Tuesday, April 1st\ 2014. Each year, the government allocates 85,000 H1bs for employees who have never previously had an H1b filed on their behalf. Of these, 20,000 are set aside for holders of US Master’s degrees, and this is referred to as the “Master’s cap.” It is important to note that in order to qualify for the Master’s cap, the US Master’s program must be either a public or non-profit university and it must be accredited.

WHEN WILL THE QUOTA CLOSE THIS YEAR?

Four years ago, we saw the quota close in January of the following year. Three years ago, we saw it close in November and two years ago, it closed in June. This past year, it closed in the first week after having received 124,000 petitions for 85,000 spots.

Over the past two years, we have seen large consulting companies, who are experiencing numerous L1A and L1B denials, file large numbers of H1bs for their L employees in order to avoid disruption on their projects. As the L1 denials increase, so will the number of H1bs that these companies file when the filing window opens. For this reason, we are advising clients to file their cases on the first possible day (April 1, 2014) and to expect a lottery situation again.

WHO IS ELIGIBLE?

If the employee has already had an H1b approved on their behalf within the last six years, they are likely to be exempt from the quota unless they received an H1b from a cap-exempt employer like a non-profit or university. Most candidates for the H-1B quota are students on OPT, people overseas who have never had an H1b approved on their behalf, or spouses here in the US who are looking to obtain their first H1b.

Based on recent USCIS trends, the candidate must have at a minimum of either a US bachelor’s degree or the foreign equivalent in a field that is directly relevant to the position. The USCIS has recently cracked down on those who have a bachelor’s degree in a field that is not relevant to the position that the petitioner has filed for. A candidate holding a degree that is not directly relevant to the offered position can still be viewed as eligible, if they have about 3 to 6 years of documented experience in a relevant field as they can get an education evaluation that incorporates their experience and education. If you are not sure if you or a candidate, in the case of an employer, meets the requirements for an H1b, we suggest speaking with an immigration attorney before committing yourself to the process.

WHAT WILL I NEED TO PROVIDE?

In order to have a successful H1b filing, it is important that you have certain evidence for the filing. The USCIS will want to see that the Beneficiary has the education that is required for the H1b, and that the field of study is relevant to the position. The USCIS will also want to see that the position itself qualifies as a specialty occupation and that the Petitioner has non-speculative work for the Beneficiary. Further, the USCIS will evaluate all of the evidence to make sure that there is a valid employer/employee relationship present for the requested validity period. If you are not sure what evidence is required, we highly suggest speaking with an immigration attorney.

HOW MUCH WILL IT COST?

The H1b government filing fees are as such:
• I-129 fee- $325
• Fraud Prevention and Detection fee- $500
• ACWIA fee
o If Petitioner employs 25 or less full-time W2s- $750
o If Petitioner employs 26+ full-time W2s- $1,500
• If the Petitioner employs 50 or more full-time W2s and over 50% are in H1b or L1 status, there is an additional $2,000 filing fee
• If you choose to use premium processing- $1,225
• If the Beneficiary has a spouse and they must file an H4 application for them, the filing fee is $290.

Education and H1bs Part II

In our last article, we discussed how the USCIS views certain US degrees when adjudicating H1bs. In this article, we are going to discuss how the USCIS views Curricular Practical Training (CPT) when adjudicating H1bs.

Curricular Practical Training, often referred to as CPT, is provided to students who are enrolled in classes and would like to gain experience through internships, off-campus employment or co-operative programs that are directly linked to the student’s field of study. Unlike OPT, the student will receive course credit for their work.

In order to be eligible for CPT,

• The student must be in valid F-1 status,
• If the student is enrolled in an undergraduate program, they must wait 9 months (2 full semesters) before enrolling. If the student is enrolled in a graduate program, the school official can authorize CPT in the first semester if it is part of the course curriculum or if that type of experience is required by the program.
• The student’s CPT employer must enter into a cooperative agreement with the school
• The student must be enrolled in at least 3 units per semester and attending classes at the university during the CPT period

It is also important to understand that if a student uses one full year of CPT, that student is not eligible for OPT upon graduation. In order to be able to use both, the student must use less than one year of CPT and they should discuss this with the designated school official to ensure eligibility for OPT.

So how does this come into play with H1bs? The USCIS has been very skeptical of schools that provide CPT to students in their first semester. After Tri-Valley University was thrust into the spot light, the USCIS has started to issue Requests for Evidence (RFE) for those students who have attended certain schools and have utilized CPT during their studies. These RFEs show up on OPT filings and extensions as well as H1b filings and they all tend to request the same evidence so it is important that students keep the following documents in the event they receive an RFE.

In the aforementioned RFEs, the USCIS will request some or all of the following:

• Evidence of payment of tuition
• Receipts for books, parking, school supplies, etc.
• Student ID
• Copies of all executed I-20s
• Rental agreement to show that you were living near the school during the CPT period
• Class schedules
• Course syllabi that include course numbers/sections, instructor’s name, delivery method (in person/lecture, lab, online, tele-learning, etc.)
• Classroom location, meeting dates/times
• A statement from the Designated School Official that attests to the fact that the student was attending classes at the school and that the instructor was present as well
• A statement from the professor attesting to the fact that the student attended classes in-person.
• Copy of the cooperative agreement with the school and the CPT employer
• Letter from the CPT employer describing the position, duties, hours per week, jobsite location and employment dates
• Paystubs from the CPT employer covering the CPT employment period

As you can see, the USCIS is attempting to determine whether the CPT was related to the field of study, whether it was relevant to student’s program and whether the student actually attended classes at the school while working on CPT. If the student is unable to provide this evidence to the USCIS, their OPT request may be denied and if they are changing status to H1b, their request for the change of status may be denied as the USCIS would say that they are not maintaining their F1 status.

Students should always talk with the designated school official when applying for CPT, but it is also important that the student retain evidence regarding their CPT in the event of a Request for Evidence. CPT is legal and can provide valuable work experience for students, but it is critical for students to have a solid understanding of CPT and what the possible ramifications of CPT employment are in regards to their status and any future status they may apply for. Students should also be aware that unlike the situation with an H1B, CPT experience may not be used to qualify an applicant for an I-140 if the work was done for course credit or to fulfil a graduation requirement. Next article, we will focus on Optional Practical Training.

F-1 FAQ

When applying for a College or University, what should I look for in regards to how it will affect my future immigration filings?

If you intend to use your degree or advanced degree as the basis to gain work authorization or apply for an employment-based green card, it is important that the school is accredited by a recognized accreditation agency or association. The Department of Education’s website provides users with this information and is a good resource. For H1b purposes, an advanced degree from a for-profit, accredited program does not count towards the H1b Master’s quota. Curiously, the definition that the USCIS uses for the H1b Master’s quota is not the same as what they use for determining eligibility for Employment Based preference categories.

If I am enrolled in a program that offers Curricular Practical Training (CPT), is there anything I need to be aware of?

Yes, we will be addressing this issue in our next article in more detail. Right now, the USCIS is looking very closely at programs that issue CPT and those who receive/utilize it. Some programs issue it very quickly and without proper guidance which leads to problems for that student when they change status as they have not been maintaining proper status during that time. We will go into more detail in the article, but if a student is unsure of whether they are maintaining proper CPT status, they should write or email their Designated School Official to ensure they are in compliance.

What is the advantage of going to school as an F1?

The main advantage of F1 status is having the ability to engage in Curricular Practical Training (CPT) and Optional Practical Training (OPT). By having F1 status, a student can engage in work authorization that is permitted by either CPT or OPT. You may, however, attend as an H-4 or L2, in which case you will not be eligible for practical training, but you also don’t have to maintain a full course load. H and L nonimmigrants may also be eligible for in-state tuition, in many cases.

Is it true that I do not have to pay taxes if I work on my CPT or OPT?

Yes and no. You are required to pay certain taxes, but CPT and OPT employees are considered students by the IRS and therefore, they are exempt from FICA taxes as are their employers.

If I am here in another status and I want to switch to F1 status, do I need to get an F1 visa and re-enter?

No, while that is an option, you could also file a change of status here in the United States. The USCIS has recently expanded their ELIS Online filing system to include any Change of Status applications to F1 and the results have been good. ELIS filings are taking about 2 months and while the application is a bit more labor intensive, it is very efficient and manageable.