Tag Archives: employment authorization

Motion of Stay for DAPA, DACA

Posted on by

The United States Department of Justice filed an emergency motion to stay a preliminary injunction against a series of executive orders issued by President Obama in November. Fourteen states plus the District of Colombia filed an amicus curiae to support the Justice Department’s stay. The stay is filed with the US Court of Appeals for the Fifth Circuit.

We have closely been following the developments of Texas v. United States, in which Texas and other states are suing against President Obama’s Expanded DACA and DAPA programs. Expanded DACA would grant deferred action status for three years to individuals who have been here since 2010 without status and are low priority for removal (plus other criteria). DAPA would grant deferred action to parents of US citizens and permanent residents who have been here since 2010 without status and are low priority for removal (plus other criteria).

DACA & DAPA Ruling

In mid-February, a federal judge in Texas ruled in favor of Texas on the grounds that the executive branch did not follow the normal rules of Notice and Comment in issuing the DACA and DAPA programs. Work authorization for certain H-4 dependents will be allowed starting May 26. That was part of the executive order program in November, but it had already undergone the Notice and Comment process.

 

H-1B Season News

Posted on by

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

 

H-1B Decision Overturned in Favor of Applicant

It can be notoriously tricky to define what a “specialty occupation” is, and it is necessary to show that an occupation is a “specialty occupation” for the purposes of an H-1B visa. That is the predicate of an H-1B visa; an employer is seeking an employee in a specialty occupation, according to INA 101(a)(15)(H) and 8 CFR § 214.2(h)(4)(ii).

 

H-1B visa issues do not often reach the federal courts, so it is noteworthy when one does. It is punctuated by the unexpected result – courts give tremendous deference to agencies in interpreting their own rules. A strong body of case law supports that, so when a federal court overturns an agency’s interpretation, it is newsworthy. As the court wrote in its opinion, “While judicial review of agency decisions is highly deferential, it is not without teeth.”

 

In Raj and Company v. USCIS, an employer petitioned for a potential employee as a Market Research Analyst in 2012. The potential employee had a Bachelor’s Degree from a United States college. The H-1B visa requires a college degree equivalent to the US college degree USCIS requested more information to demonstrate that the position corresponded with a specialty occupation. There are four criteria used in determining whether an occupation is “specialty.” The employer responded with an abundance of documents to argue the point of specialty occupation, but USCIS responded with a denial. The appeal was taken to the Western District Federal Court of Washington. The court determined that the employer and beneficiary of the proposed H-1B were correct; a Bachelors’ degree is required to perform the position of “Market Research Analyst.” The federal court overturned USCIS’ denial.

 

 H-4 Work Authorization

Another piece of important news for H-1B visa holders and their dependent spouses (H-4) was released this week. USCIS announced that effective May 26, 2015, certain H-4 visa holders will be able to obtain work authorization (regulations). They can concurrently file I-765 (Work Authorization) applications with their I-539 (Change or Extension of Status) applications. Their H-1B principals must have an approved I-140 (Employment-Based Green Card application) or have an H-1B extension subject to AC-21. An AC-21 extension means that someone is in H-1B status beyond the normally allowed six years (two three-year terms). H-1B holders sometimes end up being in H-1B status for upward of 16 years – two three-year terms of H-1B plus ten years of extended H-1B while waiting for the permanent residence date to become current. Long waiting periods are endemic with some EB-2 and EB-3 Green Card applications. The limited work authorization for H-4 visa holders is a smart move by DHS, recognizing that families of H-1B visa holders are economically injured in their years of waiting and sometimes have to abandon their Green Cards as a result. Please note this does not apply for H-4 minor children.

Immigration Action to be Announced!

Posted on by

Tomorrow, November 20, 2014, could be a momentous day in the history of immigration reform. President Barack Obama is poised to announce an executive order on immigration tomorrow night in prime time. From Del Sol High School in Las Vegas, NV, the president is expected to at least outline action to provide immigration relief to up to five million undocumented immigrants. Immigration reform has been building momentum over the past decade towards the purpose of providing some forms of relief to millions of immigrants who either entered illegally or have stayed past their legal status because they have built meaningful lives in and contributed to the United States. DACA provided limited relief to some children who were brought to the United States without status. Perhaps tomorrow will bring an updated DACA but for adults. The president is also expected to address other immigration issues, such as the low H1B visa cap, the fact that dependents count against the employment caps, and measures to attract and retain more high-tech workers.

 

There are multiple dimensions and issues at play for the president. The prospects of comprehensive immigration reform have ebbed and flowed over the past seven years. There have been times of great Democratic and Republican support; there have been periods of harsh opposition. The DREAM Act has not yet materialized, even though it seems like the least controversial measure to pass. Comprehensive immigration reform seemed like a slam dunk following the November 2012 elections, but consistent opposition have foiled that probability through legislative actions. Seeing that the legislative options have not produced any positive results for hopeful immigrants, the president has decided to resort to executive action. Considering the Republican composition of both houses of Congress and the inability of Congress over the past two and seven years to pass immigration reform, the executive order seems like the next best option.

 

The specter of executive action has roused indignant opposition – both at the nature of the reforms being ordered and the very idea of using the executive order. Even though President Obama has used the executive order infrequently throughout his presidency compared to other presidents, opponents are accusing him of kingship, royalty, dictatorship, and the like for usurping what they see as Congress’ job. Immigration is affirmed as a federal matter and every president since Eisenhower dating back sixty years has issued an executive action on immigration. Political opposition is fierce and when an immigration executive order was considered during the summer, congressional Democrats in close elections begged Obama to hold off, fearing backlash would oust them from Congress. It turns out that Obama delayed action for nearly three months on their behalves, and they were rejected out of office anyway.

 

Comprehensive immigration reform has dominated national headlines for seven years because it addresses one of the most important issues in the United States. There are perhaps 12 million undocumented migrants. Resources can be spent on enforcement and border security, but many intelligent and comprehensive solutions are required to this multi-faceted problem. That is in addition to the variety of legal immigration problems that need solving. While it is unlikely green cards will be available for undocumented migrants, one hope is a pathway to US citizenship for qualifying undocumented immigrants. The possibility announced last week was deferred deportation and work authorization for up to five million undocumented immigrants, with family ties and enough years of residence, as covered in the previous blog post. That is a relatively vanilla action compared to pathways to citizenship naturalization and lawful permanent residence.

 

Whatever happens tomorrow, we can be sure that there will be strident opposition and threats to undermine it. Regardless, prime time

Immigration Reform

tomorrow night could be an important night for millions of people whose lives hang in the balance of uncertainty. The Immigration Attorney and staff at the Law Offices of Andrew Wood commends President Obama for taking action, and awaits the President’s announcement with hopes that millions of hard working individuals will benefit from the upcoming change.

Executive Order – Millions of Immigrants Could Stay and Work

Posted on by

Work Authorization for 5 Million Unauthorized Immigrants

 

Although President Obama is currently globetrotting around Asia, his immigration policy as it pertains to people in the United States is grabbing national headlines. Obama promised an executive order (history of executive actions) on immigration in September. This was in response to two developments. The first was the inability of the House of Representatives and Senate to agree on comprehensive or piecemeal immigration reform, even though the prospects of immigration reform were imminent after the 2012 general election. Immigration reform is a broad term that includes border security, pathways to residency and citizenship for undocumented migrants, and changing aspects of our immigration system, be it employment- or family-based.

 

After two years of legislative inertia and grandstanding, it is painfully obvious that immigration reform will not occur through Congress. A stalemate was also achieved in 2007, when President Bush and Senator McCain supported plans resembling the DREAM Act were halted by virulent opposition. The president did not issue an executive order prior to the election, as cowering Democrats supplicated him not to, fearing that their party association would tarnish their election chances.

 

Many of those electorically-driven Democrats have been voted out of office in favor of a more Republican Senate and House that is vocally opposed to Obama’s forthcoming actions on immigration. While promising to do whatever lawful actions possible to improve the immigration system, the president will be unveiling a plan for protecting up to five million unauthorized immigrations from deportation and provide them with work permits. The protected will be parents of children who are American citizens or legal residents. The foundation of American immigration policy is family togetherness, so this comports with that goal. The parents will be able to obtain legal work documentation, not have to worry about living “in the shadows” with deportation threats, and separated from their families. According to media reports, the White House is debating whether that plane should be for people living in the United States for at least five years or at least ten. They are also hatching plans to extend protections to undocumented immigrants who came to the US as children, in the vein of a DREAM Act. An additional aspects of the order will expand opportunities for legal immigration possessing highly sought after tech skills, increase border security, and further mobilize a controversial enforcement program called Secure Communities. The 12,000 agents part of the immigration enforcement apparatus will receive clearer guidance as to who is a high priority and who is a low priority for deportation. Convicted criminals, foreigners who pose national security threats, and recent border-crossers will be the high priority threats.

 

The extra dimensions at play in this upcoming order are their connection to budget negotiations and the nomination of Obama’s Attorney General nominee, Loretta E. Lynch. Hopefully, the executive order will not be jettisoned for the sake of other political considerations. Immigration reform has been debated, resisted, weakened, delayed, imminent, and gridlocked over the past seven years. The president has promised an executive order, and it seems one is coming next week. The Law Offices of Andrew Wood is optimistic that this executive order will be beneficial and applauds this way overdue but critical action in alleviating the fears and burdens of millions of unauthorized immigrants. If the president follows through, this would be an excellent measure in providing relief to deserving millions.Immigration Reform Now!

DHS Proposes H-4 Employment Authorization

Posted on by

The Department of Homeland Security (DHS) has published a proposed rule available for public comments that would allow certain eligible H-4 dependent spouses to apply for employment authorization. An H-4 visa is for the spouses and children under 21 years of age of H-1B visa holders, who are employed in the United States in specialty occupations. DHS touts this possible regulatory change as an important way to alleviate the economic burdens that dependent spouses of principle H-1B holders face. Another important benefit could be easing the transition from nonimmigrant to lawful permanent resident status. The possibility of employment authorization would be limited to H-4 visa dependent spouses where the principal H-1B spouse is the beneficiary of an approved I-140 EB visa petition and where the H-1B spouse has been granted a post-6th year H-1B extension under the American Competitiveness in the 21st Century Act.

 

DHS announced this proposed rule as a possibility over a year ago. The ostensible reason for authorizing H-4 dependents for employment is to increase retention of highly skilled H-1B workers in the United States. One of the pressing problems, which is mentioned frequently in the public comments section, is that the wait for long-term permanent residence is lengthy. This may also have the effect of encouraging the entry of H-4 eligible spouses who were separated from their H-1B spouses in order to continue their own careers in the United States. The public comments contain many personal stories of immigrants and their spouses facing problems that this proposed rule would help solve, such as talented spouses who were excelling in their careers in their home country being precluded from practicing their professions in the United States. Opposition to the proposed rule focuses on concern that U.S. citizens will be laid off in favor of cheaper labor. Immigrants have expressed concerns their fear that H-4 holders will end up working in low-skilled position in restaurants and gas stations, rather than pursuing their career paths.

 

The public comment was made available on May 12 and comment period will end on July 11. If you would like to add your own comment, you may here.