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Immigration Updates


STEM OPT EXTENSION IN JEOPARDY?  On August 12, 2015 the U.S. District Court for the District of Columbia ruled that the Department of Homeland Security did not follow required procedure when it put into place regulations providing for a 17 month extension of Optional Practical Training for STEM graduates.  STEM graduates are those with degrees in the field of Science, Technology, Engineering or Mathematics.  As a result the court vacated the regulation but postponed the effective date of the vacatur to February 12, 2016.  This gives the DHS the opportunity to submit the rule again with the appropriate notice and time for comments – which it failed to do in 2008.  For the time being the USCIS will continue to adjudicate applications for STEM extensions until February 12, 2016 and existing employment authorizations are not affected.  The DHS should have enough time to do what is necessary to ensure that there is no adverse impact to future STEM OPT extensions.  See the court ruling here.

USCIS ASKING FOR RETURN OF DACA RELATED WORK PERMITS:  The USCIS is asking for the immediate return of the 3 year * work permits it issued in error following the court order by a Federal Judge on February 16, 2015.  You need to return the work permits to the USCIS if:

(1)  The work permit was issued by the USCIS on or after February 16, 2015

(2)  The USCIS issued the 3 year work permit before February 16, 2015. but it was returned to them by the post office because it was undeliverable and the USCIS then re -submitted it to you on or after February 16, 2015.

* By 3 years the USCIS means work permits issued for more than 2 years, even if less than 3 years.

The USCIS has issued letters asking for the work permits back and will be making phone calls and/or home visits to those who have not returned them.

If in doubt contact an immigration attorney immediately as the consequences of not returning the work permit when you are required to are serious.

EXPANDED DACA/DAPA TEMPORARILY HALTED.  Yesterday a Federal Judge in Texas issued an injunction halting the eagerly anticipated implementation of the expanded DACA program set to begin tomorrow and the DAPA program set to begin some time late May.  We believe this is a temporary setback but until we know for sure the USCIS is not accepting applications for the expanded DACA program.  There has been no change to the initial DACA program and extensions and first time applications will continue to be accepted and processed.  If you only qualify for the expanded DACA program please do not apply now.  The USCIS may accept your application and deny you in which case you will lose your filing fees.

DIVERSITY VISA (LOTTERY) 2016:   Registration for the 2016 Diversity Visa Lottery opened on October 1, 2014 and will close on November 3, 2014 at 12:00 noon, Eastern Daylight Time.  50,000 visas will be available in this category for nationals of those countries with historically low rates of immigration to the USA.

Nationals of the following countries are not  eligible to apply:  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  People born in Hong Kong SAR, Macau SAR, and Taiwan are eligible to apply.

In addition to being born in an eligible country, applicants must satisfy education and/or employment experience requirements.

There is no fee for applying.  The application must be filed online within the registration period stated above.

For detailed information, including in certain languages other than English, click here.

Beware of Scams!

*CURRENT UPDATE! DACA Renewals:  Today (June 5, 2014) the USCIS issued instructions and the new form for renewal of previously issued grants of DACA (Deferred Action for Childhood Arrivals).  The fee remains at $465 and a background check will be conducted as with the initial application.  Applicants are encouraged to apply at least 4 months before the expiration of their current grant of DACA so there is no interruption in their ability to work.  Click here for more information about DACA.

Employment Authorization for H-4 Dependents (Proposed Rule):  The Department of Homeland Security is coming out with regulations which will permit certain H-4 dependents to apply for employment authorization so they can work in the USA.   The work authorization will be available for H-4 dependents of the principal H-1B  visa holder who has a green card process pending and has extended his or her stay beyond the maximum 6 year period according to the 7th year extension provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).  This is welcome news even though it doesn’t go as far as we would like.   Click here for details of the proposed rule.

2015 H-1B Cap Reached:  The USCIS announced that it had received about 172,500 H-1B petitions between April 1 and April 5 and therefore had reached the cap number of 65,000 for the 2015 fiscal year.  It had also received more than the 20,000 visas available for those with a qualifying U.S. Master’s degree.  On April 10 it completed its random, computer generated lottery and we should be seeing Receipt Notices or Rejection Notices soon.  Click here for the USCIS Announcement.

New Application for Naturalization Form N-400:  The U.S. Citizenship and Immigration Services (USCIS) has introduced a new Form N-400, Application for Naturalization.  This form is significantly longer than the previous versions and is now 21 pages.  Additional questions relating to good moral character and national security have been added to the form.  The USCIS will continue to accept the previous versions of the N-400 submitted on or before May 4, 2014.

Hope for Family of Military:  On November 15, 2013 a USCIS directive went into effect allowing the undocumented spouse, minor child (under 21), or parent of certain military personnel to apply for Parole in Place and, if approved, adjustment to permanent resident status.  Although Parole in Place (PIP) is not a new immigration benefit it was sparingly used before and its scope has been extended to help the immediate relatives of members of the U.S. Armed Forces and other military personnel.  PIP does not cure all immigration issues so you should take care in evaluating whether you are eligible before you file.  This is an enormous benefit to those that qualify.  If you have a family member who is or was in the military call for a consultation.  Read more here.

Filipinos Affected by Hurricane Haiyan:  The USCIS has announced that temporary relief  may be available for Filipinos affected by the hurricane, but it is up to them to request the relief they need.  This includes changes or extensions of status, even if filed late, and other benefits.  Please go to this link on the USCIS website to see what benefits, if any, you need, and consult with an immigration attorney before you apply:  http://www.uscis.gov/news/alerts/uscis-reminds-filipino-nationals-impacted-typhoon-haiyan-available-immigration-relief-measures

Diversity Visa 2015 Program (DV Lottery):  Online registration for the DV 2015 program is now open (as of October 1, 2013) and will end at 12:00 noon on Saturday, November 2, 2013.  Same-sex couples and their minor children are now eligible for all immigration benefits, including applying for the DV Lottery.  For more information go to the following link from the Department of State:  http://travel.state.gov/visa/immigrants/types/types_1318.html

Beware of scams and sites that look like the Department of State site.

DV 2014 applicants can check their status through the following site:  https://www.dvlottery.state.gov/

Spouses of  DV2014 applicants, including those not added in the initial entry, must apply before  September 30, 2014.

Federal Government Shutdown and Impact on Immigration:  Now that the Federal Government shutdown is in effect here is a brief summary of the impact it will have on immigration and other related applications:

  •  USCIS benefits will continue to be processed as many applications are funded by application fees.  Although there may be some slowing down in the processing as a result of the shutdown, the adjudication of immigration petitions and applications is expected to continue.
  • Department of Labor will shutdown and there will be no processing of PERM applications or Prevailing Wage determinations during this time.  DOL investigations too, such as Labor Condition Application and I-9 violations, are expected to stop during the shutdown.
  • Department of State operations are likely to continue in part and possible cease in part.  It is expected that consular services and visa issuance (also funded by application fees) will continue, but the issuance of passports is likely to halt.
  • Immigration & Customs Enforcement (ICE) will not be able to initial removal proceedings without funding and it is expected that I-9 audits too will halt.
  • U.S. Customs & Border Protection (CBP) services will continue as before as this agency deals with national security and the protection of life and property.

Problems at the Border?  If you encounter problems entering or re-entering the USA at a border you can seek resolution through the Department of Homeland Security Traveler Redress Inquiry Program:  http://www.dhs.gov/dhs-trip.  Please read the information carefully to see if you qualify to seek redress through this program.  If you have any doubts as to your status you must consult with an experienced immigration attorney before you provide any information to the Department of Homeland Security which could be prejudicial or damaging.

Automated I-94 Entry/Departure System:  As of May 2013 all airports and seaports in the USA started implementing the new automated I-94 system.  If you fly into the USA you will no longer be issued the familiar I-94 card as evidence of entry.  Instead, your passport will be scanned and a electronic arrival record will be generated which can be accessed at any time prior to leaving the USA through the following link:  Electronic I-94.  At departure there is nothing that you need to do and the Customs and Border Patrol will record the departure from manifest information from the carrier.  Once you leave the USA you can no longer access your electronic I-94.  It would be advisable to print and keep a record of your electronic I-94 once you enter the USA, in addition to the stamp in your passport.

Click here for more information about the new system directly from the Customs and Border Patrol website.

Those entering the USA by land will still be issued a paper I-94 as before.

Family Immigrant Visa Category F2A is Current in August:  Great news for the spouse/minor child of Permanent Residents.  The priority date for this category is going to be current as of August 1, 2013 which means that those who are in the USA can file for Adjustment of Status before the end of August if they otherwise qualify.

If you have an I-130 Petition for Immigrant Relative which has already been filed and is pending, or has already been approved, you can file the application for adjustment of status beginning August 1, 2013.  If you have not yet filed the I-130 you can file it concurrently with the Application for Adjustment of Status on or after August 1, 2013.  The Priority Date in the F2A category becomes current for all countries and is a great opportunity for those who qualify to file.  It is expected to regress in October but I would advise those who can to have your case evaluated and if possible file in August and not depend on September’s numbers.

Once you file the Application for Adjustment of Status, you are entitled to file for a work permit and possibly an Advance Parole (travel) document and even once the Priority Date retrogresses you still have the benefits of the applications filed.  In other words, you will remain in legal status and can continue to use your work permits.  Caution needs to be exercised when using the travel document, especially if you have overstayed or otherwise breached status.

Post-DOMA – Now What?  Now that the Defense of Marriage Act has been struck down by the Supreme Court as unconstitutional, several immigration benefits may be available for same-sex married couples.  The focus has typically been on permanent resident status where there is a marriage to a U.S. Citizen, but in situations where neither party is a U.S. Citizen other immigration benefits may also be available.  Where one spouse holds a non-immigrant status, such as an H-1B, F-1, L-1, E-2, J-1 (and more) the other may be entitled to a dependent status based on the marriage.  As with all immigration applications each situation will have to be evaluated on a case by case basis to see if the parties qualify.

USCIS Guidance on Same-Sex Marriages:  The USCIS has issued a statement about the implementation of the Supreme Court ruling as it impacts same-sex marriages.  They have confirmed that, with immediate effect, I-130 petitions may be filed in the case of same-sex marriages and will be adjudicated according to existing law.  Moreover, with certain exceptions which are as yet not known, the USCIS will look to the place where the marriage took place in determining whether it is a legal marriage or not, and not the place of residence at the time of filing. So if you married in a State that permits same-sex marriages but are now living in a State that does not, you may file a spousal immigration petition with the USCIS.  Click here for the text of the guidance.

The States that currently recognize same-sex marriages as legal are:  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island (effective August 1, 20103), Vermont, Washington, and Washington D.C.

Same Sex Marriages in Los Angeles County:  On June 28, the Los Angeles County Registrar-Recorder/County Clerk issued a press release that with immediate effect they will issue marriage licenses and perform civil marriage ceremonies for same sex couples.  Click here for the full press release.

Immigration Reform:  The Senate passed the comprehensive immigration reform bill by a vote of 68-32 and the bill is now with the House of Representatives.  It is not going to be an easy battle getting the House to pass the Bill in its Senate approved proposed format and are looking for more emphasis on border security, and a slower passage of the bill into law.

The Defense of Marriage Act (DOMA):  On June 26, 2013, the Supreme Court overturned the Defense of Marriage Act and ruled that the Federal government must recognize same-sex marriages in those States that allow it.  This means providing access to all the federal benefits that traditional married partners enjoy, including immigration benefits.  At present 12 states and the District of Columbia have authorized same sex marriages and California is set to follow suit.

During the annual conference at the American Immigration Lawyers Association, USCIS Director Alejandro Mayorkas confirmed that the United States Citizenship and Immigration Services would begin accepting I-130 Petitions from same-sex spouses.  He also indicated that those petitions that were previously denied solely because the spouses were of the same gender may be opened on a motion brought by the USCIS.  Moments after DOMA was overturned, an Immigration Judge in New York City halted the deportation proceedings of a gay man so his husband could file for him.

Possible Elimination of Sibling Category:  The Senate version of the bill proposes eliminating green card filings for brothers and sisters of U.S. Citizens.  It also proposes eliminating green card filings for the adult married children of U.S. Citizens.  In case these provisions become law it may be prudent for those wishing to sponsor their siblings or married children to file the paperwork before the bill is signed into law.

Registered Provisional Immigrant program:  The proposed law contains provisions for legalizing the 11 million or so undocumented people in the USA by creating a new Registered Provisional Immigration status (RPI) they can apply for.  Those who have been in RPI status for 10 years can apply for Permanent Resident status, and then, after another 3 years, for naturalization as a U.S. Citizen.  In each case the applicant will have to meet qualifying requirements.


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Malathi Benjamin, PLC, Attorney at Law, is located in Pasadena, CA and serves clients in and around Woodland Hills, Wilmington, Harbor City, Carson, Torrance, San Pedro, Long Beach, Compton, Gardena, Paramount, Lynwood, Bellflower, South Gate, Los Angeles, Hawaiian Gardens, Artesia, Huntington Park, Cerritos, Bell, Norwalk, Maywood, Santa Fe Springs, Pico Rivera and Los Angeles County.

Call for a consultation 626.744.1750

Malathi Benjamin PLC