Tag: work authorization

Passport Entry Date Stamps to Be Eliminated

U.S. Customs and Border Protection (CBP) plans to eliminate passport entry date stamps in the passports of foreign nationals arriving in the U.S. The new policy measures are already in effect in some ports of entry and CBP will continue to expand the policy at additional ports.

The Form I-94 record of admission will continue to be used as a proof of a foreign national’s travel history and immigration status, which are accessible online. Foreign nationals are strongly encouraged to access and review their I-94 online as soon as they are inspected and admitted. Checking for errors in their I-94 online admission status before they leave the inspection area can help to avoid mistakes that may not be easily fixed after entry.

Since the I-94 governs the foreign national’s immigration status and work authorization for I-9 purposes, employers should also carefully monitor their foreign national employees’ status for Form I-9 employment verification.

© 2023 BARNES & THORNBURG LLP
For more Immigration Law News, click here to visit the National Law Review.

Venezuela Program Expanded to Cuba, Haiti, and Nicaragua – 30,000 Per Month for All Countries

The Biden administration has announced the expansion of its Venezuela Parole program to three additional countries – Cuba, Haiti, and Nicaragua. On Jan. 5, 2023, the Department of Homeland Security announced an expansion of its new migration process for Venezuelan nationals. The expansion allows those nationals from Cuba, Haiti, and Nicaragua and their immediate family members to request advance authorization for travel and temporary parole for up to two years in the United States, including work authorization. There will be a 30,000 per month cap on the number of parolees from all four countries.

Parolees must have a supporter in the United States who will provide financial and other support, among other requirements. In order to be eligible for advance travel to the United States to request parole at the border, a person must:

  • Be a national of one of the four countries or be an immediate family member (spouse, common-law partner, or unmarried child under the age of 21) of an eligible applicant and traveling with them;
  • Possess a passport valid for international travel;
  • Be outside the United States;
  • Have a U.S.-based supporter who filed a Form I-134 on their behalf that USCIS has vetted and confirmed;
  • Provide for their own commercial travel to a U.S. airport and final U.S. destination;
  • Undergo and clear required screening and vetting;
  • Not be a permanent resident or dual national of any country other than one of these four countries, and not currently hold refugee status in any country;
    • This requirement does not apply to immediate family members (spouse, common-law partner, or unmarried child under the age of 21) of an eligible national of Venezuela with whom are traveling.
  • Not be an unaccompanied child;
    • Children under the age of 18 must be traveling to the United States in the care and custody of their parent or legal guardian.
  • Not have been ordered removed from the United States within the past five years or be subject to a bar based on a prior removal order;
  • Not have crossed irregularly into the United States, between ports of entry, after Oct. 19, 2022;
  • Not have crossed irregularly into the United States, between ports of entry, after Oct. 19, 2022;
  • Not have unlawfully crossed the Mexican or Panamanian borders after Oct. 19, 2022; and
  • Comply with all additional requirements, including vaccination requirements and other public health guidelines.

When the national arrives at the United States port of entry, there will be additional screening and vetting. If granted parole, it will typically be for two years. Once granted parole, nationals may apply for employment authorization and request a social security number.

©2023 Greenberg Traurig, LLP. All rights reserved.
For more Immigration Law news, click here to visit the National Law Review.

Impact of the Trump Administration’s Decision to Terminate DACA

On September 5, 2017, Elaine Duke, Acting Secretary of the U.S. Department of Homeland Security (“DHS”), issued a memorandum rescinding the Deferred Action for Childhood Arrivals (“DACA”) program. The DACA program, instituted in 2012 under the Obama administration, defers deportation and provides work authorization for individuals who were brought to the United States as children and who pass criminal and national security background checks. The DACA program was designed to assist individuals who were raised in the United States but who do not possess lawful status in the United States. These individuals are often referred to as “Dreamers.”

Citing a recent 4-4 decision by the U.S. Supreme Court, which in effect allowed a lower court injunction of a program providing similar relief for undocumented parents of U.S. citizens to stand, the Trump Administration determined that the DACA program should end on March 5, 2018. Effectively, this provides Congress with six months to provide a legislative solution for the nearly 800,000 individuals impacted by the DACA program rescission.

For individuals eligible or currently enrolled in the DACA program, this will have the following impact:

  • Currently valid DACA benefits, including Employment Authorization Documents (“EAD”s) and Advance Parole documents (I-131 applications, authorizing beneficiaries of DACA to travel) will remain valid until their expiration. These documents remain subject to termination or revocation under the existing DACA program rules.
  • No new DACA applications (I-821D applications) will be accepted as of September 6, 2017.
  • Currently pending initial DACA applications and extensions will be adjudicated.
  • USCIS will not accept any new advance parole applications where the basis of that application is an approved I-821D.
  • Currently pending advance parole applications will be administratively closed, and I-131 filing fees will be refunded.
  • Individuals whose DACA benefits expire between September 5, 2017 and March 5, 2018 will be allowed to file an extension of their DACA benefits until October 5, 2017. If approved, we anticipate that extensions will be valid for two years, and not end on March 5.
  • U.S. Citizenship and Immigration Services (“USCIS”, the agency that oversees administration of the DACA program) will not affirmatively provide information regarding DACA recipients to U.S. Immigration and Customs Enforcement (“ICE”, the agency in charge of interior immigration law enforcement) or U.S. Customs and Border Protection (“CBP”, the agency in charge of border security) unless the DACA recipient meets existing deportation enforcement guidelines.

Once an individual’s DACA benefits expire, that individual will no longer have work authorization, and his or her deportation will no longer be deferred. This does not mean that individual will be automatically deported by ICE. However, it does mean that the individual will no longer be protected from deportation. In essence, without congressional action, Dreamers will once again become subject to potential removal from the United States.

A lawsuit has already been filed challenging the DACA program’s termination. It is hard to know whether the case will succeed, however. In the meantime, Dreamers plan to press Congress to pass a legislative solution before March 5.

A DHS memorandum outlining rescission of the DACA program is here. An FAQ is here.

 

This post was written by David J. Wilks of Miller Mayer LLP. All Rights Reserved. © Copyright 2013 – 2017
For more Immigration legal analysis go to The National Law Review

What the Demise of DACA Means for Employers

Absent congressional action, the Trump administration’s decision to wind down the DACA program will end the work authorization of DACA beneficiaries.

In a decision announced earlier today by Attorney General Jeff Sessions, the Trump administration rescinded the memorandum that created the Deferred Action for Childhood Arrivals (DACA) program. Concurrently, the Department of Homeland Security (DHS) announced that US Citizenship and Immigration Services (USCIS) will begin a six-month winding-down of the DACA program, which was created in 2012 and through which approximately 800,000 beneficiaries have qualified for employment authorization in the United States.

According to today’s announcements, effective immediately USCIS will no longer accept new or initial applications for DACA benefits, which includes renewable two-year work permits. Applications already received and awaiting adjudication will be reviewed on a case-by-case basis. Individuals who have work permits that will expire prior to March 5, 2018 may file for a two-year extension of their current work authorizations, provided that they do so by October 5, 2017. Individuals with work permits set to expire after March 5, 2018 will not be permitted to extend their employment authorizations and will lose employment eligibility when their current permits expire. Accordingly, all DACA beneficiaries will be without employment authorization by March 5, 2020.

Background

Former US President Barack Obama announced the creation of DACA in June 2012 to remove the threat of deportation for and to provide temporary employment authorization to individuals who were brought to the United States as children and who either entered unlawfully or overstayed their periods of admission. Eligibility for DACA benefits was available to any individual who at the time could show that he or she

  • was under the age of 31 as of June 15, 2012;

  • came to the United States before reaching his/her 16th birthday;

  • had continuously resided in the United States from June 15, 2007 through the present time;

  • was physically present in the United States on June 15, 2012 and at the time of making his/her request for consideration of deferred action with USCIS;

  • had no lawful status on June 15, 2012;

  • was currently in school, had graduated, or had obtained a certificate of completion from high school, had obtained a General Educational Development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

  • had not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.

At the time, the Obama administration described the implementation of DACA as a response to congressional failure to pass the Dream Act, which would have provided a path to residency and citizenship for eligible individuals. Proponents of the DACA policy described it as a legitimate exercise of executive branch prosecutorial discretion. Critics described DACA as an unconstitutional overreach of executive authority. The decision by the Trump administration to rescind and wind down DACA now shifts attention back to Congress, where debate concerning so-called “Dreamers” is already part of a larger discussion involving overall immigration limits, the border wall, E-Verify, and other immigration-related issues. Whether Congress will create and pass legislation that provides for continued employment eligibility for DACA beneficiaries is uncertain, as is the question of whether President Donald Trump would sign any such legislation.

What Employers Need to Know

Individuals who have employment authorization based on DACA benefits remain employment authorized until the expiration of their employment authorization documents (EAD). Employers who properly completed Form I-9, Employment Eligibility Verification, at the time of hire will have on file for any DACA beneficiaries the Form I-9 wherein Section 1 indicates that the employee has temporary employment eligibility that expires on the indicated date. As with any other employee who indicates that s/he is a foreign national with temporary employment eligibility, the employer is under an obligation to reverify that individual’s employment authorization by completing Section 3 of Form I-9 in accordance with the guidance in the USCIS Handbook for Employers M-274. Individuals who are unable to provide evidence of their continued employment eligibility may no longer be employed.

Employers are not required to take any other preemptive action with respect to employees who are DACA beneficiaries as their employment authorization continues through the validity date of their EADs. However, for purposes of planning and contingencies, employers may wish to determine who among their workforce is currently employed pursuant to DACA benefits by reviewing Forms I-9 already on file and photocopies already on file of any EAD that was presented and photocopied at the time of Form I-9 completion. An individual whose work authorization is based on DACA benefits will have an EAD that reflects employment eligibility based on Category C33. As a general rule, employers should not take additional measures to affirmatively identify DACA beneficiaries in their workforce, and should consult employment or immigration counsel to address any questions or concerns in this regard.

In addition, DACA beneficiaries who previously received Advance Parole documents that permitted international travel should consult with counsel prior to using a facially valid Advance Parole document for travel. US Customs and Border Protection (CBP) retains the authority to determine the admissibility of any person presenting at the border. Further, USCIS may terminate or revoke Advance Parole at any time.

This post was written by Eric S. Bord of Morgan, Lewis & Bockius LLP. All Rights Reserved  Copyright © 2017

Department of State Releases February 2015 Visa Bulletin

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Cutoff dates in the EB-2 India category advance by six and a half months, cutoff dates in EB-3 for the Rest of the World advance by five months, cutoff dates for China advance by six months, and EB-3 China is still ahead of EB-2 China.

The U.S. Department of State (DOS) has released its February 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the February 2015 Visa Bulletin Say?

The February 2015 Visa Bulletin shows an advance of six and a half months for the EB-2 India category. EB-3 cutoff dates for the worldwide category will advance by five months, and the EB-3 cutoff dates for China will advance by six months.

The cutoff date for F2A applicants from all countries will advance slightly in February.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance to September 1, 2005. The cutoff date for applicants in the EB-2 category chargeable to China will advance toMarch 15, 2010. The EB-2 category for all other countries will remaincurrent.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to December 22, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by six months to September 1, 2011, which remains ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by seven months to January 1, 2014.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: September 1, 2011 (forward movement of 184 days)
India: December 22, 2003 (forward movement of 7 days)
Mexico: January 1, 2014 (forward movement of 214 days)
Philippines: January 1, 2014 (forward movement of 214 days)
Rest of the World: January 1, 2014 (forward movement of 214 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The February Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through February 2015.

China

The January Visa Bulletin indicated a cutoff date of February 1, 2010 for EB-2 applicants chargeable to China. The February Visa Bulletin indicates a cutoff date of March 15, 2010, reflecting forward movement of 45 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to March 15, 2010 may file AOS applications or have applications approved in February 2015.

India

The cutoff date for EB-2 applicants chargeable to India advances by six and a half months to September 1, 2005. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to September 1, 2005 may file AOS applications or have applications approved in February 2015.

Developments Affecting the EB-3 Employment-Based Category

China

The January Visa Bulletin indicated a cutoff date of March 1, 2011. The February Visa Bulletin shows a cutoff date of September 1, 2011, an advancement of six months. This means that applicants in the EB-3 category chargeable to China with a priority date prior to September 1, 2011 may file AOS applications or have applications approved in February 2015.

India

The January Visa Bulletin indicated a cutoff date of December 15, 2003. The February Visa Bulletin will advance slightly, with a cutoff date ofDecember 22, 2003. This means that EB-3 applicants chargeable to India with a priority date prior to December 22, 2003 may file AOS applications or have applications approved in February 2015.

Rest of the World

The January Visa Bulletin indicated a cutoff date of June 1, 2013 for EB-3 applicants chargeable to the worldwide category. The February Visa Bulletin indicates a cutoff date of January 1, 2014, reflecting forward movement of 214 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to January 1, 2014 may file AOS applications or have applications approved in February 2015.

Developments Affecting the F2A Family-Sponsored Category

The January Visa Bulletin indicated a cutoff date of February 22, 2013 for F2A applicants from Mexico. The February Visa Bulletin indicates a cutoff date of April 22, 2013, reflecting forward movement of 59 days. This means that applicants from Mexico with a priority date prior to April 22, 2013 will be able to file AOS applications or have applications approved in February 2015.

The January Visa Bulletin indicated a cutoff date of April 15, 2013 for F2A applicants from all other countries. The February Visa Bulletin indicates a cutoff date of May 8, 2013, reflecting forward movement of 23 days. This means that F2A applicants from all other countries with a priority date prior to May 8, 2013 will be able to file AOS applications or have applications approved in February 2015.

Developments in the Coming Months

As noted in last month’s alert, the DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

  • The cutoff date in the F2A category will likely advance by three to four weeks per month.

Employment-Based Second Preference Category

  • The worldwide category will likely remain current.

  • The cutoff date in the EB-2 China category will likely advance by three to six weeks per month.

  • The cutoff date in the EB-2 India category will likely advance by four to six months.

Employment-Based Third Preference Category

  • The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.

  • The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date within the next six months.

  • The cutoff date in the EB-3 India category will advance up to two weeks.

  • The cutoff date in the EB-3 Mexico category will remain at the worldwide date.

  • The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the February 2015 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Eleanor Pelta
A. James Vázquez-Azpiri
Roland C. Lechner
OF
Morgan, Lewis & Bockius LLP