Category Archive for ‘Law News’

Deferred Action for Childhood Arrivals Is Still Availableby David McKeen

After the Supreme Court decision there was a lot of confusion about whether the DACA from 2012 was still in effect.  A clarification was issued as written bellow.

The Supreme Court’s 4-4 decision in United States v. Texas on June 23, 2016, does not affect the existing 2012 policy regarding Deferred Action for Childhood Arrivals (DACA). Individuals who meet the 2012 DACA guidelines may continue to come forward and file an initial or renewal request for DACA under those guidelines. For more information, see uscis.gov/daca.

The Supreme Court decision does, however, mean that the court injunction prohibiting implementation of DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA remains in effect.

This means that DACA from 2012 is still indeed in effect and that the new ruling does not change anything in regards to how DACA from 2012 is interpreted.  You should consult an attorney if you think that you can benefit from this clarification or call our office.

DHS Rule on Expansion of Eligibility for Provisional Unlawful Presence Waiverby Stephanie DiPietro

Department-of-Homeland-Security-Logo-HRToday, U.S. Citizenship and Immigration Services (USCIS) announced a final rule [FR DOC# 2016-17934]  expanding eligibility for I-601A Provisional Unlawful Presence Waivers.  In order to qualify for a provisional waiver, this expanded rule requires applicants to establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are prevented from returning to the United States.

Based upon comments received to the proposed rule, DHS adopted some additional changes to who is eligible for a provisional waiver.  For example, previously applicants with a final order of removal, deportation, or exclusion were prohibited from applying for a provisional waiver unless the order had been reopened and terminated.

Under the expanded regulation, those with a final order should file an I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal first and once that has been approved then file an I-601A provisional unlawful presence waiver.

Applicants should note the expanded guidelines for a provisional waivers do not take effect until Aug. 29, 2016.  Applying prior to this date may result in denial from USCIS.

We expect these changes to have a huge impact on who now qualifies for a provisional unlawful presence waiver. For a full explanation of the new expanded rule and to see whether you may qualify for an I-601A Waiver please call our office to schedule a consultation.

Supreme Court of The United States denies states’ requests for filing extension in immigration suitby Stephanie DiPietro

The supreme court rejected the request for a 30 day filing extension by the Texas supported by 25 other states and only granted an 8 day extension to submit a brief to the supreme court.  This allows the current session of the supreme court to hear this case and if the Obama administration wins, they will be able to implement Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs before President Obama leaves office in 2017.  According to the Latin Post, implementation of DAPA and DACA could potentially provide approximately 4.9 million undocumented immigrants with temporary three-year permits to stay in the U.S.

See full article at the Washington Post

Changes in EB-5 Program a Threat to Chinese Investorsby Stephanie DiPietro

The popular EB-5 program where foreigners can gain permanent residency in the United States by investing at least $500,000 in a job-creating environment has increasingly become popular amongst Chinese citizens. Lawmakers in the United States are considering  making changes to this program that will make it harder to gain permanent residency.

Supporters of the program say that the foreign investment has helped finance many projects in the country and give way to new jobs. On the other hand, critics to this program argue that this is a way for the rich and elite foreigners to buy their citizenship into the country. This debate has created some push for change into the program.

Four major ways this program can potentially  change:

1) Increase in Investment amount

Currently the program suggests that investors must invest at least $500,000 or $1 million depending on the project. The investment should create at least 10 full time jobs.  One of the reforms that is being suggested is to have the investment amount increased to $800,000 or $1.2 million and sticking to the same rules for job creation. The main reason for higher investment amounts is to reduce the number of people investing into the program. Due to strict Chinese currency laws that restrict the amount of cash being transferred out of China , if these changes take place Chinese investors will have difficulty transferring funds out of China for this higher level of investment.

2) More regulation on how funds are being used

The EB-5 projects being funded by the investments from visa seekers will be scrutinized  in further detail to avoid fraud of any sort. For example, those working on these investments would have to undergo a criminal history check.  This will be a form of protection for the investors. Additionally, investors will have to undergo further scrutiny pertaining to the lawful origin of the investment There have been recent cases where Chinese officials were arrested for fraudulently obtaining visas through the EB-5 program. Hence lawmakers want to improve the image of the EB-5 program

3) Shifting investments from urban to more rural towns (encouraging employment)

Presently, a majority of the investments in the EB-5 program are made in projects creating employment in urban areas such as New York City where unemployment is typically low.  If the EB-5 program’s purpose is to create employment in areas of high unemployment, proposals by Congress recommend encouraging projects in rural areas where this problem is common.   This could cause some  problems for Chinese investors who may feel more comfortable investing their money in a familiar area like a big city rather than in a new small town that they are unaware of.

4) Changes can happen at anytime

At this point we are not sure when and how these changes will be put into practice. It could be put into effect right away or not at all depending on the decision the lawmakers take. These changes could also affect people who have already  invested in an EB-5 project.

Appeals Court Upholds Delay Of Obama’s Executive Action On Immigrationby Stephanie DiPietro

The Appeals Court decided to uphold the injunction on Deferred Action for Parental Accountability. Next, a formal appeal will be filed with the Supreme Court. There maybe time for a decision to be issued by the Supreme Court before the 2016 election but it will be close.

Full Article from the HuffPost at the following link.

H-1B Amendments Regarding Worksite Location Changesby Stephanie DiPietro

Summary of Changes

The U.S. Citizenship and Immigration Services (USCIS) has issued final guidance in compliance with the recent decision in Matter of Simeio Solutions as to when to file an amended H-1B petition based on changes in worksite location.

A “material change” in the terms and conditions of employment has always required an amended H-1B petition.  However, the Simeio Solutions decision made clear that a change to a worksite location can be considered a “material change.”

An employer is required to file an amended H-1B petition where:

  1. The updated location is outside f the metropolitan statistical area (MSA) covered in the Labor Certification Application (LCA)
  2. The duration that the H1-B employee will work at the updated location exceeds 30 days (or in some cases 60 days)

Once the amended H-1B is filed, an applicant may start working at the new location immediately  and need not wait for the approval notice.

If you have any questions about this final guidance, please contact our office at stephanie@dipietro.co

Obama Administration Moves To Overturn Judge’s Immigration Rulingby Stephanie DiPietro

WASHINGTON — The Department of Justice officially filed on Monday an appeal and a request for a stay of a judge’s recent decision to block President Barack Obama’s executive actions on immigration.

The appeal would overturn U.S. District Court Judge Andrew Hanen’s order last weekto halt Obama’s policies from moving forward. A request for a stay was filed separately and would, if granted, allow Obama’s actions to be implemented even while a case brought by 26 states against the federal government works its way through the courts.

Obama’s executive actions, announced in November 2014, could allow as many as 5 million undocumented immigrants to receive work authorization and remain in the country. The states’ lawsuit, which is being led by Texas, contends that the president’s actions are unconstitutional and would burden the states with costs. Hanen has not yet made a final ruling on the constitutionality, but issued a preliminary injunction last Monday.

The White House was expected to appeal the order, and announced Friday it would also seek a stay.

Hanen’s injunction prevented the Obama administration from starting to accept applications for an expanded version of the Deferred Action for Childhood Arrivals program. DACA was created in 2012 to allow undocumented immigrants who came to the U.S. as children to temporarily stay in the country and work legally. The administration had planned to begin accepting applications last Wednesday from those made eligible under Obama’s 2014 actions. Thanks to Hanen’s ruling, those applications are not being accepted, although the program is still operating under its previous guidelines.

The order also stalled a new policy, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which was established under Obama’s actionsto confer similar relief to parents of U.S. citizens and of legal permanent residents. That program was originally slated to start this spring.

The Obama administration has maintained that the president was on solid legal footing to create DAPA and expand DACA.

The programs are currently at the center of a heated fight on Capitol Hill over Department of Homeland Security funding. The department is set to run out of funding on Feb. 27, but there is currently an impasse with no clear solution in sight. Republicans say a DHS funding bill must include measures to block DACA, DAPA and other Obama immigration policies; Democrats say they will approve only a bill without those riders.

The Senate is set to vote later Monday on a House-passed DHS funding bill that has already been blocked three times by Democrats, and the same result is expected.

President Obama’s Executive Actionby Stephanie DiPietro

Fixing Our Broken Immigration System Through Executive Action – Key Facts

The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.

Executive Actions

Strengthen Border Security

DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border.  This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air.  To accomplish this, DHS is commissioning three task forces of various law enforcement agencies.  The first will focus on the southern maritime border.  The second will be responsible for the southern land border and the West Coast.  The third will focus on investigations to support the other two task forces.  In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.

Revise Removal Priorities

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.  Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.  This policy also provides clear guidance on the exercise of prosecutorial discretion.

End Secure Communities and Replace it with New Priority Enforcement Program

DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

Personnel Reform for ICE Officers

Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE EROofficers engaged in removal operations.  These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program

We will expand eligibility for DACA to encompass a broader class of children.  DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered.  DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981.  We will also adjust the entry date from June 15, 2007 to January 1, 2010.  The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate.  These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee.  Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit.  DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed.  Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process

To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

Support High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training.  For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.

Additional Information

Last Published Date: November 21, 2014

Secretary Johnson Announces Process for DACA Renewalby Stephanie DiPietro

USCIS to Publish New Form to Allow Individuals to Renew Their Deferred Action
Release Date: June 05, 2014

WASHINGTON—Secretary of Homeland Security Jeh Johnson today announced the process for individuals to renew enrollment in the Deferred Action for Childhood Arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA, to renew their deferral for a period of two years. At the direction of the Secretary, effective immediately, USCIS will begin accepting renewal requests. USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program.  As of April 2014, more than 560,000 individuals have received DACA.

“Despite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our border illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws, and should be treated differently than adult law-breakers,” said Secretary Johnson. “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

The first DACA approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. USCIS encourages requestors to submit their renewal request approximately 120 days (four months) before their current period of deferred action expires.

DACA is a discretionary determination to defer removal action against an individual. Individuals in DACA will be able to remain in the United States and apply for employment authorization for a period of two years. Individuals who have not requested DACA previously, but meet the criteria established, may also request deferral for the first time. It is important to note that individuals who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and these additional guidelines:

  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

The renewal process begins by filing the new version of Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

USCIS will also host both national and local DACA informational sessions. USCIS will provide further information on these sessions during which USCIS officials will provide additional information on the DACA process and be available to answer your questions. For information on local DACA engagements, please visit www.uscis.gov/outreach.

To learn more about the renewal process or requesting initial consideration of DACA, visit www.uscis.gov/childhoodarrivals or call the USCIS National Customer Service Center at 1-800-375-5283.

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