DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses

US Citizenship & Immigration Services (USCIS) Director León Rodríguez announced today that as part of President Obama's executive actions back in November 2014, the Department of Homeland Security (DHS) is extending employment eligibility to H-4 visa holders of H-1B spouses who are seeking employment-based permanent resident status. Applications will start being accepted on May 26, 2015.

This action is "one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs." Director Rodríguez said that granting employment to these spouses will not only provide "more economic stability and better quality of life" to the families but also that it will help "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."

To qualify, individuals must be 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.

Eligible applicants must submit a Form I-765, Application for Employment Authorization along with supporting evidence and the required $380 fee to USCIS, beginning on May 26, 2015. H-4 applicants can begin work in the US upon approval of the application and receipt of the work card. 

As many as 179,600 individuals this year could be eligible for employment authorization under this new eligibility rule, USCIS estimates, and DHS expects that "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."

This announcement comes amid court challenges to President Obama's expansion of DACA as well as the possible impending shutdown of the Department of Homeland Security (the mother agency of USCIS).

USCIS Will Not Begin Accepting Applications for Expanded DACA Today

US District Judge Andrew Hanen in Texas ruled late Monday night to temporarily block President Barack Obama's executive action on the expanded Deferred Action for Childhood Arrivals (DACA) program as well as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. Consequently contrary to their original plans US Citizenship & Immigration Services (USCIS) will not be accepting applications today for the expanded DACA program, and going forward until further notice for expanded DACA and DAPA. The judge ruled that Obama's executive action failed to comply with the Administrative Procedure Act, which "calls for the White House to afford a longer notification and comment period before taking action." The Department of Justice is planning to appeal this decision, and US Department of Homeland Security Secretary Jeh C. Johnson issued a statement:

I strongly disagree with Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it...The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.

Secretary Johnson goes on to note that the court ruling does not affect the existing DACA program and that individuals may continue to apply for the initial or renewal DACA under the original guidelines established in 2012. We will continue to provide updates as we receive them.

USCIS to Begin Accepting Requests for Expanded DACA on February 18

Last November President Obama announced he was taking executive actions on immigration reform, after the House of Representatives failed to act on the immigration reform bill passed by the Senate in 2013. One of the president's initiatives involve expanding eligibility for the Deferred Action for Childhood Arrivals (DACA) program to applicants of any age who entered the US before the age of sixteen and who have lived in the US continuously since January 1, 2010, as well as extending the period of DACA and work authorization from two to three years.

US Citizenship & Immigration Services (USCIS) has just announced it will begin accepting applications for this expanded DACA program on February 18, 2015, only weeks away, even as the Republican-controlled Congress heads toward a showdown with Obama over funding for the Department of Homeland Security, the mother agency of USCIS.

Who is eligible for the expanded DACA program?
Individuals of any age with no lawful immigration status who entered the US before the age of sixteen and who have lived in the US continuously since at least January 1, 2010. Applicants must also meet schooling requirements as well as not being convicted of certain crimes or posing a national security threat.

How is this different than before?
The first DACA program announced in 2012 requires that applicants have continuously resided in the US since June 15, 2007, and that they were under thirty-one years of age on June 15, 2012. Additionally the initial DACA was granted only for a period of two years.

How to file?
USCIS lists all the requirements including what documentation is required along with the necessary forms, fees, and where to send the application.

Is an attorney needed to file the case?
Matt Bray has an excellent post regarding this question.

When can the DACA case be filed under the new requirements?
On and after February 18, 2015! 

What authorization is received with DACA?
If the application is approved, individuals will not be placed into removal proceedings or removed from the US for three years unless their DACA is terminated. In addition, they will be granted employment authorization. Travel authorization (advance parole) may also be granted in certain cases.

USCIS cautions those applying for DACA to be especially wary of immigration scams. They've published a list of helpful tips for before and after filing to avoid scams and ensure that their case has been properly received and is processing correctly. Applicants for DACA cases (and in general for immigration matters) should be especially wary of anyone calling them about their immigration case and claiming to be from USCIS or the government.

Although DACA is limited in that it only defers removal and does not provide permanent lawful status, this DACA expansion is good news for many undocumented immigrants including one of America's most well-known and visible undocumented immigrants: Pulitzer Prize-winning Filipino journalist Jose Antonio Vargas, who summarized DACA: “'This is not amnesty…It’s only temporary. It doesn’t provide a Green Card. It doesn’t provide citizenship. It doesn’t provide healthcare. It doesn’t provide anything really, except free from deportation, a work permit, people can drive, people can travel hopefully, and again just not to live in fear[.]”

UPDATE: US District Judge Andrew Hanen in Texas ruled late Monday, February 16, 2015 to temporarily block President Barack Obama's executive action on the expanded DACA program as well as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. Consequently contrary to their original plans discussed in this post USCIS will not be accepting applications February 18 for the expanded DACA program, and going forward until further notice for expanded DACA and DAPA. We will provide more updates as we receive them.

SNL Explains Obama's Executive Action on Immigration Reform

For a recent cold open, Saturday Night Live explained in song how executive action works. Featuring a bill (Kenan Thompson), an executive order (Bobby Moynihan), and President Obama (Jay Pharaoh), in this clip (in lieu of our regular "Monday Quote") we learn from President Obama of the supposedly "even easier way to get things done around here."

A bill (Kenan Thompson) and an executive order (Bobby Moynihan) explain how government really works with a little help from President Obama (Jay Pharaoh).

President Obama’s Executive Action on Immigration Reform

Last night President Obama made a long-awaited major announcement to the nation regarding the administration of the immigration system. Though short, the announcement will have an enormous impact on millions of people living in the United States without legal status. US Citizenship & Immigration Services (USCIS) today published a summary of the impending changes which provides a few more details but highlights the fact that there is much to be done to put these changes into effect. 

While all the details are yet to be released, the key piece of the announcement is a deferral of deportation for the millions of law-abiding undocumented immigrants who can prove that they were present in the US for at least five years, have US citizen or legal resident children, pass a background security check, and are willing to pay their “fair share” of taxes.

The President also announced some changes to the business immigration system designed to improve the chances for entrepreneurs and other business creators to remain in and enter the country in the future.

Before the announcement, the White House held a briefing with more details about each element of this plan. They include the expansion of the DACA program by eliminating the age limit (currently thirty-one years) for applicants who were brought to the US as children as well as expanding the period of validity of the deferred action to three years (currently two).

The plan also includes important tweaks to the enforcement priorities of Immigration and Customs Enforcement (ICE, the enforcement wing of immigration), clarifying that priority must be placed on the apprehension and removal of non-citizens who present a risk to national security and public safety.  In addition, individuals who are the beneficiaries of approved immigrant petitions filed by their employers, but whose cases are held up in the severe immigrant visa backlogs, will be able to apply for adjustment of status. While this will not necessarily result in their Green Card being issued any faster, it may give them more flexibility in their career advancement.

While the details of each component of the President’s plan have not yet been fully released or digested by immigration lawyers and advocates (we are in the process of reviewing all the finer points of the President’s plan), it is clear that the announcement will have a significant effect on millions of people—authorized and undocumented immigrants alike. It is also clear that there will be a considerable pushback from Congress in January, when the Republicans take control of both chambers.

We will be tracking the President’s plan and its implementation, and will continue to post updates as they are available.

The Guardian and Bloomberg: What Will Obama do?

Congress began a five-week recess without passing any legislation to address immigration reform or the current border surge.  President Obama says he now intends "to act alone." The Guardian explores the options available to the President, from extending Deferred Action to the parents of DACA recipients or parents of children born in the United States, to Parole in Place, to new procedures and standards for deportation. 

It will be interesting to see how far the President goes. Many, including the President himself, believe he extended his administrative powers to their limits last year in providing Deferred Action for the DREAMERS.  Bloomberg highlights this aspect of the problem stating:

“Among the actions being considered is granting some of the 12 million immigrants in the U.S. illegally work permits that would allow them to stay in the country, according to a Democratic Senate aide and immigration advocates.

That’s sure to reignite Republican accusations that Obama exceeding his constitutional authority, one of their main campaign themes for November’s midterm elections. The Republican-controlled House last month voted to sue Obama over implementation of his signature health-care law.”

Some Republicans are even going as far as stating that they would call for impeachment if the President stretched his powers too far.  Stay tuned.  We will be sure to post updates as soon as we have them.