06 Sep 2017

Phase out of DACA and What this means for DREAMers and Employers

The Trump Administration announced on September 5, 2017, that it is terminating DACA. The program named Deferred Action for Childhood Arrivals (DACA), administered by the Department of Homeland Security (DHS), has permitted people who were brought to the United States as children to remain here and receive employment authorization once they prove that they meet the minimum requirements for the program.

Requirements to be eligible for DACA include:

  • Entered the United States  to the United States before reaching their 16th birthday;
  • Were under the age of 31 as of June 15, 2012;
  • Have continuously resided in the United States since June 15, 2007, up to the present time and did not depart the United States on or after August 15, 2012 without DHS authorization;
  • Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety.

Being approved for DACA did not grant any legal status upon the applicant or his/her family. It merely “Deferred” the Government’s right to initiate Deportation/Removal proceedings against anyone covered by the program.

Phase Out of DACA

Pursuant to the decision announced by Attorney General Jeff Sessions, the Government has officially ended DACA, but enforcement has been delayed for six months.

  • As of September 05, 2017, the Government will not accept any new DACA applications;
  • DREAMers with current Employment Authorization Document (EAD) that expires between today and March 08, 2017 MUST file to renew their DACA status before the end September 2017 (official deadline is Thursday, October 05, 2017, but we advice that you not leave this to the last minute)
  • DREAMers with currently valid EAD that expires after March 08, 2017 are not eligible to renew their status any longer

What This Means for DREAMers

  • If you have an EAD that expired between today and March 08, 2017, please make sure to renew your DACA before the end of September 2017.
  • Do not leave the United States under any circumstances as there is no guarantee that you will be able to return, even if you have received advance parole.
  • Do not loose hope! There are several bills pending in Congress and it is possible that a law legalizing/codifying DACA regulations will come into effect before March 2018

What This Means for Employers

Basically, employers may not terminate a DACA employee from employment solely on the expectation of future ineligibility to work. DREAMers with currently valid Employment Authorization are legally able to continue with their employment.

  • Current DACA recipients, as well as those eligible to apply by October 5, 2017, will be permitted to retain both the period of deferred action and, for DACA extensions, their EAD cards until they expire, unless terminated or revoked.
  • DACA beneficiaries must possess both a valid EAD as well as a Government issued Social Security Card
  • USCIS will process new DACA EAD applications received before September 5, 2017, but any employees who intend to file for DACA for the 1st time are no longer eligible to apply.
  • DACA and EAD renewal applications that were properly filed prior to September 5, 2017 will continue to be processed. Current processing time for final adjudication is an average of 4 months.
  • USCIS will process two-year DACA EAD renewal applications received by October 5, 2017 for individuals whose current DACA EAD expires between September 5, 2017 and March 5, 2018.

As always, employers and DREAMers are encouraged to call us or contact us should you have any questions about this phase out.

 

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20 Nov 2016

USCIS Publishes Final Rule Impacting Employment Based Immigrants & Non-Immigrant Workers

USCIS on November 18, 2016, published their final rule impacting various aspects of certain Non-Immigrant and Immigrant visa programs.

  1. Employment Work Authorization (EAD) for Employees with Approved I-140: While there was much hope for an expansion to the EAD rule to allow more foreign workers to be eligible for the EAD, the final rule is still very restrictive. The rule permits persons in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided that they meet certain conditions:
    1. The applicant is the beneficiary of an approved employment-based (EB-1, EB-2, or EB‑3) immigrant visa petition,
    2. The applicant is unable to apply for adjustment of status or an immigrant visa stamp because her priority date is not current under the Visa Bulletin,
    3. The applicant shows “compelling” circumstances justifying the grant of an EAD.

    The “compelling” circumstances are described as including one or more of the following:

    1. serious illness or disability faced by the worker or dependents
    2. employer retaliation against the nonimmigrant worker
    3. other substantial harm to the applicant
    4. significant disruption to the employer

    For those that are able to meet this restrictive definition, they are eligible for an EAD valid for one year.

  2. H-1B Extensions Beyond the Sixth Year

    The regulation codifies USCIS’s longstanding policies on H-1B extensions beyond the sixth year, with some additional requirements.

    • Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission, consistent with current policy.
    • An H-1B nonimmigrant will become ineligible for a one-year post-sixth year extension, if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her.
    • A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
    • An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
  3. Portability and Priority Date Retention for I-140 Beneficiaries: The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 job portability.

    A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.

    An I-140 beneficiary whose petition is revoked will be able to use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

    Consistent with current policy, the beneficiary  of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

  4. Grace Periods for Nonimmigrant Workers

    Amongst the hardest challenges that Non-immigrant workers have faced in the US is that until now, they have been left with no “grace period” to try to find alternate employment, or even to dispose of their personal belongings should they find themselves suddenly unemployed. The law has always had a strict policy of the Non-Immigrant being out of status as soon as his/her employment is terminated. This law changes that. Employees on E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment. 

    Approved E, L-1 and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from the United States.

    Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting to new employment.

  5. Employment Authorization Documents:  Automatic Extensions and Application Processing

    The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.

    The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days.  As a practical matter, the agency had ceased adhering to these rules in recent years. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.

    The Big Unknown: These policy changes, while welcome and much needed, are set to take effect on January 17, 2017 i.e. a few days before the new Administration takes office. Therefore; it is, as yet, unclear as to whether or not this final proposed rule will in fact be implemented, or whether it will be withdrawn. There is speculation that Senator Jeff Sessions is to be the incoming administration’s nominee to lead the Department of Justice, of which USCIS and the Immigration Courts are a part. Sen. Sessions has been a vociferous opponent of Immigration reform, and should he be confirmed as the Attorney General, it is likely that policy changes such as these will be impacted.

We will continue to follow up on these and post updates as and when we have them. As always, please contact us at 206-623-3352 should you have any questions or if we can help you in any way.

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