DACA – February 18

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The DACA Process

 

USCIS Will Start Accepting Expanded DACA Applications on February 18

DACA (Deferred Action for Childhood Arrivals) was established as a temporary relief measure for individuals who were brought to the United States as children and grew up in the US. President Barack Obama created the program through an executive order for the purpose because legislative efforts to create a DREAM Act had been stifled in Congress. A DREAM Act would allow for a path to citizenship for “dreamers,” individuals who had come to the United States as children and had continuous residence in America. Essentially, they were raised in the United States and had their entire lives in the country. DACA is only limited relief, as it provides for two years of deferred action against deportation and work authorization upon proving the seven criteria and prosecutorial discretion. This blog has covered DACA and the president’s executive actions with great interest, while hoping that meaningful immigration reform will be enacted.

Neither the DREAM Act nor comprehensive immigration reform have become bills and the president has responded with a series of executive orders that can offer temporary relief until congressional action is taken. The executive orders range from minor improvements in employment immigration to relief for millions of parents of US citizens and lawful permanent residents with the DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program. Part of the executive order is the expansion of DACA, making it available for more individuals. The requirements have changed, so that the age restriction is removed and the date for continuous residence is January 1, 2010. Instead of two years of deferred action, like DAPA, it will grant three years for successful applicants.

Expanded DACA goes into effect on February 18. It requires a filing fee for the application and biometrics (fingerprints) and extensive proof to document continuous residence. USCIS and immigration groups have been warning potential applicants not to be fooled by impostors or fraudulent individuals who pose as legitimate attorneys. Notarios, as they are deemed, can harm immigrant applications immediately and also saddle applicants with negative future consequences.

DACA nor DAPA grants a Green Card, US citizenship, or even a pathway to either. The programs merely allow for individuals who are low-enforcement priorities (according to recent memos pursuant to the executive orders) to obtain temporary relief while permanent legislation is enacted for actual relief. Until the political process generates a meaningful result, the executive orders will have to make do.

Same-Sex, Immigration, Supreme Court

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Supreme Court to rule on same-sex marriage

 

Same Sex Marriage and Immigration

One of the most significant developments in US immigration in recent years was the recognition of same-sex couples as a valid married couples who can sponsor each other for immigration purposes. For example, an American gay man was previously unable to sponsor his Canadian husband based on marriage because the federal government refused to recognize that union as valid. Windsor v. US had immediate ramifications in immigration, as Attorney General Holder announced that same-sex couples would be considered married like any heterosexual couple. An American can now sponsor his or her foreign partner or fiancé for Permanent Residency (Green Card).

It is uncertain how the Supreme Court will rule in a case that it has been loath to take. Four cases have been consolidated and the Supreme Court is expected to issue a nationwide ruling on same-sex marriage. (As an aside, it seems that the Supreme Court’s recalcitrance to issue a nationwide ruling was eroded by the US Court of Appeals for the Sixth Circuit upholding individual states’ bans.) There are all kinds of constitutional, social, political, and economic factors in play; the important constitutional decisions rest of equal protection, due process, and fundamental right to marry. Same-sex marriage is legal in ¾ of all US states, but many of those states have been resistant to judicially permitted same-sex marriage and have sued to retain their individual marriage restrictions.

The immigration consequences are unknown at this time. The federal government has signaled its willingness to recognize homosexual relationships as legitimate for immigration purposes.  If the Supreme Court rules against same-sex marriage, how will that affect immigration? It seems that whichever way the Supreme Court rules in June, it will not alter effects on immigration. The federal government can continue to recognize same-sex marriages, even if many states are allowed to marriages. However, there could be various consequences for couples in certain states (taxes, estates, benefits), which has been an ongoing concern with the states split on recognition and non-recognition.

I Squared: More H-1B Visas

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US H-1B Visa Petitions

The Immigration Innovation (I Squared) Act of 2015 is a bipartisan proposal by the US Senate to encourage the influx and retention of “high-skilled” talent and labor in the United States. The focus of the bill is the H-1B visa, which is for foreigners with a job opportunity, in a specialty profession that requires a bachelor’s degree. The other requirements are that the employer will pay the foreign employee at the prevailing wage or actual wage and that the hiring of the employee will not adversely affect the working conditions for US workers. To obtain an H-1B visa is an entire process for the employer (labor condition agreement, attestations, expenses), and although some employers fall into H-1B dependency, some of the most powerful and wealthy companies (also, small and medium-sized businesses) have clamored for H-1B visa reform for years and years as part of necessary immigration reform to keep American globally competitive. The H-1B visa can be used for a variety of professions – medicine, accountant, engineer – but it seems that its preponderance is located in computer-based professions.

 

I Squared has specific proposals that please the advocates of H-1B reforms. They are (not exclusively):

 

  • Increasing the cap of visas from 65,000 to 115,000;
  • Eliminating the 20,000 Master’s Degree or higher exempt visas;
  • Employment Authorization for H-4 spouse visa holders (H-4 visas are for dependents and the recent executive actions intimate at work authorization for H-4 holders);
  • Exempting dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap;
  • Removing the annual per-country limits for employment-based visas;
  • Instituting a grant program to promote STEM education and US worker retraining

 

An important aspect of increasing the visa cap to 115,000 is that number represents the floor on the number of visas to be issued for the fiscal year. That number can elevate to 195,000 depending on demand for that particular year.

 

Even if this bill were to become a law in short order, its provisions would not apply to the current round of H-1B applications. H-1B applications need to be sent out by March 31 for the April 1 filing date to be considered for October 1, when the fiscal year begins. As the cap is usually reached that first week in October, timing is crucial. The consistent and excessive demand for H-1B visas proves that reform in this category is necessary. Although it seems to have the appearance of bipartisan support, the legislative and political process will still have their say. Senator Orrin Hatch proposed a similar bill in 2013 (with the possibility of a 300,000 visa cap) that did not flourish into a bill. Regardless, we remain hopeful that the H-1B visa system and employment-based immigration will be improved in short order.

H-1B Visa 2015 Statistics

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Figure 2: Process of Obtaining an H-1B Visa

The Office of Foreign Labor Certification released statistics for the first quarter of the 2015 Fiscal Year (starting October 1) on the whole range of employment based certification for foreign workers. A function of the Department of Labor, the FLC is tasked with certifying the H-1B visa labor conditions and permanent employment labor certifications.

 

The statistics for the first three months of the fiscal year reveal that over 80,000 H-1B applications were received, the overwhelming majority of which are in the computers realm – Computer Systems Analysts, Software Developers, Programmers, and other Computer Occupations dominate the list of certified positions. There is also nothing surprising about the states leading the way in H-1B applications: California, Texas, and New York are the top three states. Pennsylvania is eighth. Also revealing is that 176,259 positions were requested for certification and over 95% of those requests were certified. H1-B season picks up in full force over the next few months, as applications received on April 1 can be processed for October 1 starting dates (new fiscal year, when the cap of 65,000 + 20,000 starts fresh).

 

The Department of Labor is involved in the immigration and visitation of foreign workers for two important reasons. The first is to protect qualified American workers from losing jobs to foreign workers. The second is to ensure that the foreign workers are paid at the prevailing or actual wage, to guard against wage depression for American workers and protect foreign workers from being underpaid. The employer must make a prevailing wage determination and attest to paying the foreign worker at or above that wage in the labor condition agreement, which must be certified by the Department of Labor before the H-1B visa petition can be filed.

US Immigration: Soccer Power

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USMNT

The Immigration Law That Will Make the United States a Global Soccer Powerhouse

 

For soccer (futbol) fans in the United States, it has been a struggle to slowly ingratiate soccer into the American sports pantheon, which is dominated by football, football, college football, and occasionally baseball. Soccer has been rising in prominence, thanks to some gritty and spectacular performances by the US Men’s and Women’s National Teams. The global game made enormous strides in 2014, as the country was struck with Soccer Fever during the World Cup. John Brooks deserves a statute for his goal against Ghana.

The Childhood Citizenship Act (CCA) of 2000 will make the United States a soccer power that will threaten the top teams. This month, 17 year old Gedion Zelalem expedited the process to obtain his passport. He has become a US citizen and will be eligible to play for the U.S. national team. The CCA is the reason why. Zelalem’s father turned his Permanent Residency into US Citizenship in 2014. As Zelalem was still under 18, a lawful permanent resident and in his father’s custody, his father’s naturalization allowed him to receive US citizenship automatically, even though he was born in Berlin to two Ethiopian parents. Zelalem immigrated to the United States as an eight year old in 2005 and was eligible to join either Ethiopia, Germany, or the United States national teams.

There are many great soccer players in Zelalem’s situation. Many players in the European Union are faced with similar situations and have to choose a country based on citizenship laws and heritage, such as Jerome and Kevin Boateng, Adnan Janujaz, Lionel Messi, Diego Costa, Danny Welbeck, and Stephen El-Sharaawy. We are thankful that Zelalem has chosen the United States, much like the German-Americans chose the United States. Thank you Congress and thank you Zelalem. We wish Zelalem the best of luck as he starts his career with Arsenal FC and cannot wait to see him lead USMNT to international glory.