News from the Alliance of Business Immigration Lawyers Vol. 8, No. 6B • June 15, 2012
1. President Announces Deferred Action, Work Authorization for Certain Children of Undocumented Persons – In a surprise move, President Barack Obama announced that certain children of undocumented persons may be granted deferred action and work authorization based on prosecutorial discretion.
2. H-1B Cap Reached – H-1B numbers for FY 2013 have run out.
3. Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants – The SSA guidance includes a table listing the most recent automatic EAD extension information by country.
4. USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status – USCIS explained that elimination of the signature requirement for forms filed with certain applications is part of its larger efforts to transition to electronic filing.
5. Law Profs Write to President on Executive Options for Granting Relief to DREAM Act Beneficiaries – The letter notes that there is executive authority for several possible forms of administrative relief for DREAM Act beneficiaries, including deferred action, parole-in-place, and deferred enforced departure.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. Member News – Member News
8. Government Agency Links – Government Agency Links
1. President Announces Deferred Action, Work Authorization for Certain Children of Undocumented Persons
In a surprise move, President Barack Obama announced that certain children of undocumented persons may be granted deferred action and work authorization, based on prosecutorial discretion.
Secretary of Homeland Security Janet Napolitano detailed the change in a memorandum sent on June 15, 2012, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection (CBP); Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services (USCIS); and John Morton, Director, U.S. Immigration and Customs Enforcement (ICE). The memo explains that additional measures are necessary to ensure that enforcement resources are not expended on “low priority cases” such as those who were brought to this country as children and lack the intent to violate the law.
Before a person may be considered for an exercise of prosecutorial discretion under the memo, he or she must:
- have come to the United States under the age of 16;
- have continuously resided in the United States for at least five years preceding June 15, 2012, and have been present in the United States on June 15, 2012;
- be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
- not have been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise not pose a threat to national security or public safety; and
- not be above the age of 30.
The above criteria are to be considered, the memo states, whether or not an individual is already in removal proceedings or subject to a final order of removal. “No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The memo notes that the Department of Homeland Security “cannot provide any assurance that relief will be granted in all cases.”
The memo details what ICE, CBP, and USCIS should do when encountering individuals meeting the above criteria, with specifics for various circumstances. For example, for those who are in removal proceedings but not yet subject to a final order of removal, ICE should exercise prosecutorial discretion “by deferring action for a period of two years, subject to renewal.” The memo also notes that, for those granted deferred action by either ICE or USCIS, USCIS will accept applications to determine whether such individuals qualify for work authorization during the period of deferred action.
The memo explains that U.S. immigration laws “are not to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.”
Several weeks ago, a letter from nearly 100 law professors outlined options under prosecutorial discretion the President could use to provide administrative relief in these cases, such as the use of deferred action. The letter noted, “Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decision to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive.”
Not everyone agrees with that viewpoint, however. Kris Kobach, Kansas’ Secretary of State, asserted that Congress removed prosecutorial discretion for such purposes in 1996, and accused President Obama of “breaking federal law.” However, Stephen Yale-Loehr, professor of immigration law at Cornell law school, noted that the 1996 law focused on restricting the ability of federal courts to overturn immigration agency decisions; it did not address the rule of the executive branch on this particular issue. “Deferred action is a longstanding form of administrative relief used by presidents of both parties over many years,” he noted.
In this election year, the controversy is likely to continue. Stay tuned.
ICE Announcement (Spanish Version)
USCIS Memo (Director Morton said additional guidance “will be issued as soon as possible.”)
Professors’ Letter (Enter “professors letter deferred action” in the Search field.)
2. H-1B Cap Reached
On June 12, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough H-1B petitions to fulfill the numerical limit for the fiscal year ending September 30, 2013. As of June 12, 2012, petitions for new employment of H-1Bs, that is, for employment of a person who is not yet in H-1B status for another employer, will not be accepted again until April 1, 2013. Those petitions received after April 1, 2013, must request employment starting October 1, 2013, so that they will be subject to next year’s cap (FY 2014).
H-1B1 petitions for nationals of Chile and Singapore may still be approved due to free trade agreements with those countries, and “cap exempt” employers (such as universities and nonprofit research organizations) may continue to seek H-1B status on behalf of their employees. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2013 H-1B cap.
The “final receipt date” for H-1B purposes is June 11, 2012. Regulations now provide that all H-1B petitions received by USCIS on or before June 11, 2012, have been submitted “under the cap,” but all H-1B petitions received by USCIS on or after June 12, 2012, will be rejected.
Contact your Alliance of Business Immigration Lawyers attorney about options for beneficiaries of H-1B petitions who did not make the cut-off for the cap.
Contact your ABIL attorney immediately if your organization wishes to sponsor any more cap-subject H-1B nonimmigrants for FY 2013.
3. Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants
The Social Security Administration recently released guidance to staff, effective May 21, 2012, on employment authorization for nonimmigrants with respect to Social Security issues. Topics discussed include the policy for nonimmigrant employment authorization, evidence proving a nonimmigrant’s employment authorization, the validity period, automatic extensions of employment authorization documents (EADs), nonimmigrants with automatic EAD extensions, the procedure when a Social Security number applicant submits an EAD based on an automatic EAD extension, and the policy for employment authorization by Class of Admission (COA).
The guidance includes a table listing the most recent automatic EAD extension information by country, and a table listing those who are employment-authorized without specific Department of Homeland Security (DHS) authorization, such as A-1 ambassadors and career diplomats, A-2 foreign government officials, H-1C registered nurses, H-2A agricultural workers, J-1 exchange visitors, and others. The guidance notes that although those listed under a COA in the table are employment-authorized without DHS authorization, “employers may still ask for an EAD before the alien can start working.” The guidance also includes a table listing COAs and descriptions of nonimmigrants who are authorized to work only with authorization from DHS, and another table listing those who are not authorized to work in the U.S.
4. USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status
U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum on June 1, 2012, eliminating the original signature requirement for supporting Certificates of Eligibility for Nonimmigrant Student Status (Forms I-20) or Certificates of Eligibility for Exchange Visitor Status (DS-2019) submitted with Applications to Extend/Change Nonimmigrant Status (Forms I-539). USCIS explained that this change is part of its larger efforts to transition to electronic filing.
USCIS explained that applicants must submit an I-20 with the I-539 form when applying to change nonimmigrant status to F-1 or M-1, for reinstatement to F-1 or M-1 status, for a transfer of schools when in M-1 status, or for an extension of M-1 status. Signatures are required for the Designated School Official and the student. USCIS requires applicants to submit a DS-2019 with the I-539 when applying to change status to J-1. Signatures are required for the applicant and the Responsible Officer or Alternate Responsible Officer for the exchange program.
USCIS noted that when its Electronic Immigration System (USCIS ELIS) is launched for public use, applicants will have the option of submitting their applications either by using ELIS or filing on paper. For applications filed via ELIS, the agency will accept a scanned, electronic version of a valid and properly executed I-20 or DS-2019 for all I-539 filings when required. For any I-539 filed outside ELIS, the agency will accept a photocopy of a valid and properly executed I-20 or DS-2019. Regardless of how the applicant files once ELIS is launched, USCIS will not return the I-20 or DS-2019 to the applicant upon approval of the I-539.
Applicants wishing to have USCIS stamp their I-20 or DS-2019 may make an appointment online through InfoPass and take their form to their local USCIS office. Stamping of I-20s and DS-2019s is a “transitional service that field offices will perform for 6 months after ELIS launches for public use,” USCIS explained.
5. Law Profs Write to President on Executive Options for Granting Relief to DREAM Act Beneficiaries
A large group of prominent law professors sent a letter on May 28, 2012, to President Barack Obama addressing options available to the executive branch in cases involving potential beneficiaries of the Development, Relief, and Education for Alien Minors (DREAM) Act. The letter discusses executive authority for several possible forms of administrative relief for DREAM Act beneficiaries, including deferred action, parole-in-place, and deferred enforced departure.
For more on this topic, see the first article in this issue of the ABIL Immigration Insider.
6. New Publications and Items of Interest
Office of Foreign Labor Certification recent postings:
- The OFLC PERM, H-2A, H-2B, Prevailing Wage, and LCA program disclosure data files for Quarter 2 of FY 2012 are now available in the Comma-Separated Value (CSV) file format. To access the disclosure files and corresponding record layouts, see HERE. Historical OFLC program disclosure files for prior fiscal years are available on the Foreign Labor Certification Data Center website.
- The Department of Labor has posted a revised Frequently Asked Question (FAQ) regarding the Permanent (PERM) Program and entering fractional year values (e.g., 1.75, .5) in Section H, Item 8-C of ETA Form 9089. This FAQ is available HERE under the subheading “Job Requirements/Duties.”
- The Department of Labor has posted a revised Frequently Asked Question (FAQ) regarding the Permanent (PERM) Program and the use of third-party software to upload applications for permanent labor certifications in the OFLC Case Management System. This FAQ is available at HERE under the subheading “Filing – How to File.
Department of State estimates for visas available in each employment preference category and country for FY 2012. The Department of State released information on monthly determinations of employment cut-off dates and a chart showing the estimated total number of visas available for each employment preference category and country for FY 2012. Other charts show cumulative demand in various years for employment second and third preferences by country.
The Department noted that each month, the Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and USCIS offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported qualified demand, the category is considered “Current.” For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, then it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.
The imposition of cut-off dates for some categories and countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, the Department explained. In addition, new applicants are constantly becoming eligible for processing in categories for which cutoff dates do not apply, or for a category other than that in which they initially filed for status. Therefore, the totals “should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand which was taken into consideration during the determination of the monthly cut-off dates,” the Department noted.
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issue.
ORDER HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.email@example.com.
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.
Green Card Stories has recently been named a Nautilus book award silver medal winner in the Conscious Media/Journalism/Investigative Reporting category, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards in the Multicultural/Nonfiction Adult category and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012, in the Non-Traditional Photojournalism Publishing category.
For more information or to order, visit Green Card Stories.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.
7. Member News
Cyrus Mehta has published a new blog entry. “Matter of O. Vasquez: BIA Issues Precedential Decision On ‘Sought To Acquire’ Under CSPA“.
Angelo Paparelli has published several new blog entries. “L-1B Spécialité Horrifique: The Immigration War on the Consulting Industry (And Its Customers)” and “Two Market-Based Proposals for Immigration Reform: Cap-and-Trade or Uncap-and-Grow?”
Stephen Yale-Loehr was quoted on ABC, CNN, and the Wall Street Journal on the topic of President Obama’s newly announced exercise of prosecutorial discretion and deferred action/work authorization for certain children of undocumented persons. In the June 16, 2012, edition of the Wall Street Journal at page A1, in “U.S. to Stop Deporting Some Illegal Immigrants,” he noted that the future is not clear with respect to what will happen to such individuals if a future president opts to reverse the policy. “There is a political and legal risk that what Obama giveth, Romney will taketh,” he said.
Mr. Yale-Loehr spoke on EB-5 immigrant investor issues as part of a day-long EB-5 seminar sponsored by ilw.com on June 13, 2012, in Nashville, Tennessee.
8. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post