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Deferred Action for Childhood Arrivals (DACA) was implemented in June 2012 through an executive order to benefit people who were brought to the U.S. under the age of 16 and who either never had legal status or lost it. It grants those who apply and meet the other requirements a 2-year work permit. DACA has allowed over 700,000 unauthorized immigrants to get legal permission to work which in turn leads to a social security number and, in many states, a driver’s license. Although it is not a green card or a path to a green card, DACA has been a very important benefit for hundreds of thousands of young people.
DACA is in danger of being discontinued by the Trump administration. A leaked draft of an executive order, published on vox.com, would rescind DACA immediately but would allow existing DACA work permits to remain valid until they expire. We have no way of knowing if the administration will promulgate this order, do nothing, or do something else. Thus the future for people with DACA is unclear. In our opinion, someone who has DACA and who has not done anything to make himself ineligible to renew should apply to do so in spite of the real risk the administration may terminate DACA at any time. The benefit of two more years of DACA work permission outweigh the risk that the filing fee and other costs of applying to renew may go for naught. For new DACA applicants, however, who have not already given their fingerprints and other information to the government, there is not only that risk, but also the risk that the information provided on DACA applications will be used to deport them. Everyone must make her own decision, of course, but newly eligible people and their parents may well decide the risk is too great. These fears are not totally unfounded. One of the questions answered on the DHS’ website is the following: Q19: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes? The short answer, according to the website is no, it may not be used for immigration enforcement purposes. But the government goes on to explain that the information may be shared with national security and law enforcement agencies such as ICE and CBP for reasons other than removal proceedings. It further goes on to expound that this policy may be “modified, superseded or rescinded at any moment.” In other words, there is no guarantee that the information provided by DACA applicants will not be used for the purpose of removal by the new administration. Link to Vox article: http://www.vox.com/policy-and-politics/2017/1/25/14390106/leaked-drafts-trump-immigrants-executive-order Link to the USCIS website Q&A for DACA: https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions
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USCIS announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected in their computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.
Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition. If you are filing a Form I-907, Request for Premium Processing, to upgrade your Form I-129 H-1B petition to premium processing, send the completed Form I-907 with the appropriate fee to the center processing your petition. On May 12, 2016, 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 May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received. U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.
USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit. As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:
The H-1B Season by Matt Kuenning
H-1B season is upon us again. Now is a good time to take a moment to explain very generally what H-1B visas are and why there is an H-1B season. An H-1B is long term but temporary permission to work in the U.S. at a specific job for a specific employer. It is limited to so-called “specialty occupations.” Generally, specialty occupations are those that in most cases require at least a 4-year college degree in an appropriate field to enter the field. So, for example, law and engineering are specialty occupations because entry level jobs require at least a law degree or a bachelor’s degree in an engineering or related subject. By contrast, jobs for nurses and pilots usually do not qualify because it typically does not a 4-year degree to get an entry level job as a nurse or pilot. The H-1B requires the employer to petition for the foreign worker. The employer must file a Labor Condition Application (LCA) with the United States Department of Labor on behalf of the employee, and thereby make certain promises to the government about wages and working conditions for the H-1B worker. Once the LCA is reviewed and certified by DOL, prospective employer may then file Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS Service Center. Current law limits the number of H-1B visas that can be granted each fiscal year to 85,000. Of these 20,000 are reserved for foreign nationals holding a U.S. master’s or higher degree. This limited number of available visas does, in most years, require a lottery selection process to select from hundreds of thousands of petitions those that will be reviewed and possibly granted. In most years, to get its petition into the lottery the employer must file the I-129 no earlier than April 1 and no later than the 5th business day after April 1. Hence we have the H-1B season as employers, foreign workers, and their attorneys work to make sure H-1B petitions are ready and get filed in that narrow window. |
AuthorThis blog is authored by Jeffrey Hays and Matt Kuenning of Erwin, Martinkus, & Cole Ltd. They focus exclusively on immigration law. Archives
February 2017
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