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Obama’s Executive Action : Expanding Deferred Action Initiatives to Unlawful Aliens

??????????????????????????????????????????????????????????????????????????????????????????????OK, so let’s break it down.  Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).

Deferred Acton for Childhood Arrivals

So what are the specifics?  In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens unlawfully present in the United States who had been brought to the United States as children and who met other criteria could receive “deferred action.”  In many cases, these individuals also received employment authorization.  Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.

On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible.  Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two.  We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.

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

Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s.  This initiative is commonly called DAPA.  Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.

Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement.  To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.

The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives.  However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.

So What did President Obama Actually Do?

Immigration reform has arguably become the third rail of politics.  Those on the political right will say that the President granted “amnesty” to all these aliens.  I suppose whether that’s true depends on what your definition of amnesty is.  I personally don’t believe that’s the case. Here’s what I can tell you.

A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration.  Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s.  LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions).  That’s not at all what happened here.

Aliens granted deferred action are generally “lawfully present” in the United States under federal law.  That’s it.  They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.

Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status.  Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship.  Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.

Of course, I personally hope this will not be the case, but one never knows.  The next two years may tell us a lot.  Politics is a funny thing.

Back to School, but Congress Still as Unproductive as Ever

I rec????????????????????????????????????????????????????????????????????????????????????????????????????????????????ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.

I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?

I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.

When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.

I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”

After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”

What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”

Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?

Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.

Immigration Reform by Regulations: 97K Spouses Will Be Able To Work!

?????????????????????????????????????????????????????????????????????????????????????????????We are very fortunate to represent many employers who sponsor foreign nationals as H-1B nonimmigrant workers. One of the biggest challenges in working with H-1B nonimmigrant workers is explaining that their dependent spouse cannot also work in the United States. This is about to change for some.

As a reminder, an H-1B nonimmigrant worker is someone who works in a “specialty occupation,” which is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of H-1B specialty occupations are scientists, engineers, or computer programmers. H-1B nonimmigrant workers are admitted for an initial three year period, and their employers can extend that up to a maximum limit of six years.

Some H-1B nonimmigrant workers can actually extend their H-1B nonimmigrant status beyond the six years. For example, if their employer (or a prospective employer) filed a permanent residence application prior to the end of their fifth year of H-1B eligibility. Another example would be if the H-1B worker has a Labor Certification Application (commonly known as a PERM application) approved by the U.S. Department of Labor and an I-140, Immigrant Petition for Alien Worker, approved by U.S. Citizenship and Immigration Services.

Under current law, H-4 dependent spouses cannot apply for work authorization (unlike spouses in some other nonimmigrant classifications, e.g., L-1 dependent spouses). That is about to change.

On May 6, 2014, the Department of Homeland Security announced the publication of a propose rule designed to attract and retain highly skilled workers. The rule would allow spouses of certain H-1B nonimmigrant workers to request employment authorization if their H-1B spouse is currently pursuing permanent residence through employment-based sponsorship.

According to this proposed rule, H-4 dependent spouses can apply for work authorization if the H-1B spouse (a) is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or (b) has been granted an extension of his or her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B nonimmigrant workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit (in the situations described above).
Of course, this rule is a welcome change. And while this proposed rule may assist an estimated 97,000 H-4 dependent spouses who will now become eligible to apply for employment authorization, the rule does not assist H-4 dependent spouses whose H-1B spouses are not in the employment-based permanent residence process. By contrast, spouses of L-1 intracompany transferees are eligible to apply for work authorization, without the requirement of having to be in the permanent residence process.

This is not a perfect solution, but it’s a pretty big deal, nevertheless. I cannot tell you how often I have to break the news to an H-1B nonimmigrant worker that their trailing spouse can come to the United States but cannot work him or herself. There are organizations that work with trailing spouses (e.g., Tech Valley Connect works with trailing spouses to assist them with their professional development and assimilation into their new community), but a good portion of their missions are assisting trailing spouses with their professional development. Given the cap limitations associated with the H-1B program, what good does it do to work on professional development when employers are co constrained in terms of their ability to participate in the H-1B program?

From an immigration reform perspective, this, along with several other happenings recently, is interesting. Republicans have repeatedly said that President Obama cannot be trusted to enforce our laws. Here, we have an instance of legislating through regulatory change. This comes on the heals of President Obama directing DHS Secretary Jeh Johnson to conduct a review of immigration policy, including weighing an administrative move to curtail deportations. We shall see if there is any fall out of this in Congress. For now, a little progress.

US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:

“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”

O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.

As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).

So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:

“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”

He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)

Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

Mr. Stump went on in his statement:

“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”

I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.

Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:

“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”

The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:

“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”

The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?

We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.

Team USA Sochi 2014 and the Influence of Immigration

olympic ice skatingI always enjoy watching the Olympics, both summer and winter.  Sure, they’re a bit over the top, not to mention exorbitantly expensive to host these days.  And the Olympics have seen their share of tragedy too, both human and political.  But did you know that there’s a long history of first and second generation immigrant athletes representing the United States on Team USA?  (Did you also know that some former Olympic champions were previously in the United States unlawfully?)  The U.S. Skating Team is especially influenced by immigrant athletes and coaches.  For example:

  • Simon Shnapir, who came to the United States from Russia, will be representing the United States in Sochi in pairs skating with his partner, Marissa Castelli.
  • Marina Zueva, previously a Russian ice dancer, retired in the late 1970’s to become a choreographer.  She moved to the United States in 1991 and has worked with many elite skaters including current members of Team USA.
  • Oleg Epstein, Marina Zueva’s former partner, is also an immigrant from Russia.  He has choreographed Gracie Gold and ice dancers Davis and White and is currently a coach and choreographer for siblings Maia and Alex Shibutani.
  • Although the “Shib Sibs,” as the Shibutanis are commonly known, are first generation Americans, their mother is an immigrant from Japan who met their father when they were both studying music at Harvard.
  • Rafael Arutyunyan, born in Soviet Georgia, competed as a skater for the USSR early in his career.  After immigrating to the United States, he has coached many successful U.S. skaters including Michelle Kwan.  He is currently one of Ashley Wagner’s coaches.
  • Igor Shpilband, a former ice dancer for the USSR, defected to the United States in 1964.  He is both the coach and choreographer for ice dancers Madison Chock and Evan Bates.
  • Finally, Yakuto Sato, a former Japanese figure skater who placed seventh at the 1992 Winter Olympics and fifth at the 1994 Winter Olympics, is, interestingly enough (considering where the Olympics are being held) the only foreign-born Team USA skating coach without a Russian background.  She currently works as a coach and choreographer at the Detroit Skating Club, where she coaches Olympic hopeful Jeremy Abbott.

Considering the Olympics are being held in Sochi, Russia, I suppose it’s a bit ironic that all but one of the individuals noted above is of Russian descent.  Nevertheless, it does not mean we support our Team USA any less.  We wish them all great success.

A New Year and New H-1B Filing Season for Specialty Occupations

?????????????????????????????????????????????????????????????????????????????????????????????So, yes, this is actually what I am thinking about on New Year’s Day.  The start of the H-1B filing season is actually upon us.  Since Comprehensive Immigration Reform (“CIR”) did not pass in 2013, the Gang of Eight’s plan to raise the H-1B visa cap never came to be (or I’d like to say has not come to be yet).  As such, immigration practitioners are once again left to have difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions.

A little primer is in order.  An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.”  A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States.  Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

In order to determine whether a particular position would be considered a specialty occupation, the regulations require that the position must meet one of the following four (4) criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common in the industry in parallel positions among similar organizations or, alternatively, that the particular position is so complex or unique that a degree is required; (3) the employer normally requires a degree or its equivalent; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.

The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the following September 30.  For those employers who wish to hire foreign nationals as H-1B workers, unless the position is exempt, there is an annual cap of 65,000 nonimmigrant visas that are available in each fiscal year (and the additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).

Importantly, the earliest date by which an employer may petition for a prospective H-1B worker is the April 1 preceding the October 1 beginning of the U.S. government’s new fiscal year.  Assuming that the offered position is not an exempt position (i.e., a position that is cap exempt), the timing of an employer’s H-1B petition is critical.  This is because in recent years the H-1B cap has been reached within days of April 1.  Therefore, late filing may cause an employer to miss the opportunity to participate in the H-1B program in a given fiscal year.

Because there are some prerequisites to filing an H-1B petition with USCIS (e.g., obtaining a prevailing wage determination, filing a Labor Condition Application with the U.S. Department of Labor, etc.), now is the time for employers to start thinking about whether they wish to participate in the H-1B visa program.

Goodbye 2013 : Hope for Immigration Reform in 2014?

imm_4Do you remember how hopeful everyone was in January?  “Now is the time.”  That’s what President Obama said on January 29, 2013 in Las Vegas when he introduced his four (4) part plan for Comprehensive Immigration Reform (“CIR”).  In early July, the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act,” and we were off to the House of Representatives.  And that’s where we are today … still waiting for something … anything.

There’s a lot of discussion these days whether we’re ever going to have CIR (or any immigration reform for that matter).  I heard an interesting piece the other morning on National Public Radio (“NPR”), where Brent Wilkes, national executive director of the League of United Latin American Citizens, a strong supporter of CIR, said he’s not concerned if CIR happens before the end of 2013.

“The real clock is this session of Congress doesn’t end until next December,” said Wilkes, who predicts that the House will vote on immigration bills by April or May in 2014. “This has been a long, long process for us, well over 20 years, and we’re not so impatient that we can’t wait four more months,” he added.  I suppose that’s encouraging.

But I am also hearing a lot of political chatter as to the likelihood of having CIR before next year’s congressional mid-term elections, during the 2016 presidential primary cycle, or ultimately even by the time the 2016 presidential elections take place.

In a nutshell, the analysis goes like this.  Although the Hispanic population today makes up 17 percent of the nation’s population and is the fastest-growing ethnic group, they disproportionately live in congressional districts represented by Democrats. So there’s no real incentive, at this point anyway, for Republican House members running for re-election in 2014 to support CIR if it’s not going to benefit them in their own district or, worse, potentially hurt them.

On to the Republican presidential primaries, where Republic presidential candidates will be focused on placating their conservative base (i.e., the voters in presidential primaries).  No chance for CIR at this point

Now we’re into 2016, where maybe a Republican presidential candidate (or dare I say the Republican party) will finally learn the lessons of 2012. (That’s three years from now in case you’re not counting.)

Speaking of lessons learned, former Governor and Republican presidential candidate Mitt Romney recently went on CBS Morning to talk about life after the elections. During his comments, he stated that a significant shortcoming of his campaign was appealing to minority voters. (Really?) Interestingly, he took a somewhat different approach on immigration than he had during the campaign when he advocated “self-deportation.”  Romney said, “I don’t think those who come here illegally should jump to the front of the line, or be given a special deal — be rewarded for coming here illegally — but they should have a chance, just like anybody else, to get in line and become a citizen if they’d like to do so.”  While an admirable view, I think it’s a little too late coming from Governor Romney (but of course, we’re talking about lessons learned).

OK, so how about some potentially good news.  Last week Speaker Boehner (R-OH) made a hiring choice for his own staff that hopefully speaks to his seriousness to address immigration reform in 2014.  Roll Call reported that “Rebecca Tallent, who currently serves as director of immigration policy at the Bipartisan Policy Center (BPC), will join Boehner’s staff[.]  Before joining the BPC, Tallent held several senior staff positions with Sen. John McCain, including chief of staff.”

The Roll Call piece went on to say that “[d]uring her time with McCain, [Ms. Tallent] helped the Arizona Republican draft a handful of immigration overhaul measures, including the last big push McCain made with the late Sen. Edward M. Kennedy … in 2007. … Before working for McCain, she worked for former Rep. Jim Kolbe, R-Ariz., a longtime advocate of overhauling the immigration system[.]”

CIR is very much overdue.  “Now [still] is the time.”  January seems so long ago, but I remain cautiously optimistic that the House will do something about CIR, albeit now likely in 2014.

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