The American Immigration Council reported that the political lawsuit challenging the legality of parts of President Obama’s Executive Action should fail for a variety of reasons. But the lawsuit has already succeeded in two respects. First, it won a dubious preliminary injunction from a lower court judge temporarily halting the program while the case proceeds. (Earlier this week, the Obama Administration filed an emergency motion asking the judge to lift his order and let the program move forward, setting the course for an appeal to a higher court.) Second, the lawsuit has ginned up precisely the kind of fear and confusion it was conceived to create.
For example, some Immigration and Customs Enforcement (ICE) officers are reportedly acting as if the injunction blocks not only expanded DACA and DAPA—but also the Department of Homeland Security’s (DHS) new November 2014 enforcement priorities. Those new priorities direct DHS officers to focus limited enforcement resources on national security and public safety threats, individuals convicted of a wide array of crimes (including some misdemeanors), as well as recent entrants and certain other immigration law violators. Immigration practitioners from various parts of the country report that a few ICE trial attorneys and deportation officers have indicated that the new priorities memo is no longer controlling. This is flat wrong. The new enforcement priorities are in full force and effect. ICE and Customs and Border Patrol officers who refuse to follow them are failing to adhere to policy.
It should have been clear from day one that the preliminary injunction did not and does not block the new enforcement policy. First, the Texas judge who granted the preliminary injunction expressly––and correctly––stated that the new enforcement priorities are “not subject to judicial second-guessing[.]” The court then wrote that DHS Secretary Jeh Johnson’s “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch[.]” If any doubts lingered, Secretary Johnson’s unequivocal press release the next day should have laid them to rest. In it, he said that the new enforcement priorities “remain in full force and effect.” On Wednesday, in a televised town hall, President Obama said that immigration officers who fail to adhere to the enforcement policy may face consequences, much like members of the military who are expected to follow orders.
While it’s true that under the preliminary injunction ICE and other agencies within DHS may be prohibited from considering whether a particular immigrant is eligible for DACA or DAPA, it does not follow that people who are potentially eligible for those programs should be removed. Based on the way those programs are structured, virtually every person who qualifies for either DACA or DAPA will not fall within the enforcement priorities and should not be priorities for deportation as long as the new enforcement policy is in effect—regardless of what happens with the lawsuit.
After President Obama announced his executive actions, DHS established a process for reviewing enforcement decisions. That process is still in place. Advocates can and should play a role in identifying departures from policy to ensure that individuals are not wrongfully detained and deported.
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States. Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.” Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who: • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H- 1B status. DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers. Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States. USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.
USCIS will begin accepting requests for the expanded DACA program on February 18, 2015. See the updated #DACA FAQ at http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions
USCIS announced that it will begin accepting applications for expanded #DACA on February 18, 2015. The new initiative extends the deferred action period and employment authorization to three years from two years, and allows you to be considered for DACA if you:
◦ Entered the United States before the age of 16;
◦ Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
◦ Are of any age (removes the requirement to have been born prior to June 15, 1981); and
◦ Meet all the other DACA guidelines.
If you would like a free evaluation of #DACA eligibility under the expanded requirements please contact the law firm of Getson & Schatz, P.C.
USCIS issued a reminder submit #DACA renewal requests between 150 and 120 days before the expiration date located on the Form I-797 DACA approval notice and EAD. USCIS’s current goal is to process #DACA renewal requests within 120 days. However, inquiries can be submitted 105 days after filing
The Department of Homeland Security is considering a “Known Employer” pilot program to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers.
The department expects to launch the pilot by late 2015 to test a program designed to:
• Make adjudications more efficient and less costly.
• Reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.
U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement would jointly implement the pilot program. A goal would be to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. Doing so is a binational commitment under the North American Free Trade Agreement as well as the U.S.-Canada Beyond the Border initiative.
In particular, one specific commitment made by the U.S. and Canadian governments under the Beyond the Border initiative is to “explore the feasibility of incorporating a trusted employer concept in the processing of business travelers between Canada and the United States.” Additional information about the “Known Employer” program will be provided in the coming months.
USCIS released a new I-129 Form, containing an edition date of 10/23/14. On 1/9/15, USCIS changed the date after which it would only accept the 10/23/14 edition from 2/23/15 to 5/1/15.
Effective Monday, January 12, 2015, the National Visa Center (NVC) will begin responding to routine questions, via e-mail and phone, from attorneys and the public on nonimmigrant visa cases. Consular posts will continue to accept inquiries on individual visa cases, and LegalNet remains active and will continue to respond to inquiries from attorneys seeking advisory opinions on the interpretation or application of U.S. immigration law.
Two fliers on President Obama’s executive actions on immigration are now available on www.uscis.gov/
The fliers explain:
- The importance of avoiding scams and not submitting requests until the new initiatives are available.
- Eligibility requirements for the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
The fliers are available in English, Spanish, Korean and Vietnamese. A Chinese version will be available soon.
The Department of Homeland Security extended the designation of El Salvador for Temporary Protected Status (TPS) for 18 months from March 10, 2015, through September 9, 2016. The 60-day re-registration period runs from January 7, 2015, through March 9, 2015.
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