Gathering Necessary Documents for Deferred Action Application
As immigrants hoping to benefit from President Obama’s executive action await the publication of forms and the official start of the application process, many are now looking to collect the necessary supporting documents showing their eligibility for the immigration relief.
The President’s new initiatives, the Deferred Action for Parental Accountability (DAPA) program, and the expanded Deferred Action for Childhood Arrivals (DACA), are expected to protect from deportation an estimated 5 million undocumented immigrants and provide them with work permits.
The DAPA program extended eligibility for deferred action to certain parents of U.S. citizens and lawful permanent residents. Meanwhile, the expanded DACA eliminated the age cap of 31 years under the original program and moved the eligibility cut-off date for continuous residence in the U.S. from June 15, 2007 to January 1, 2010.
Under both programs, applicants are required to prove continuous residence in the U.S. For many undocumented immigrants living in the shadows and who have, for the most part, worked “under the table,” used fake names, and tried to remain hidden for fear of deportation, the task of documenting their continuous residence in the U.S. may seem overwhelming.
Also, since the United States Citizenship and Immigration Services (USCIS) has yet to release specific guidance as to what types of documents will be acceptable, many immigrants are finding it even harder to know exactly what documents to collect.
Fortunately, experience from the initial DACA program launched two years ago has provided advocates some guidance as to what type of documents applicants should be looking for. These include medical records, school records such as diplomas, report cards, and school transcripts, and financial records such as tax records, bank statements, credit card bills and phone bills.
The USCIS also accepted vehicle registrations, baptism records, mortgages, and postmarked letters under the initial DACA program. Because some of these documents are not readily available to the undocumented, advocates recommend that applicants make use of any evidence they might have to establish their presence in the U.S.
Advocates have used, among others, social media postings in the form of Facebook photos, movie rental receipts, and customer loyalty programs with transaction history details.
Also, applicants are urged to collect at least one document per month for each month until the application is submitted. If the applicant is not able to account for a gap during the relevant period, advocates have suggested obtaining affidavits from people who have personal knowledge of their presence in the U.S.
For DAPA applicants, they should start obtaining copies of their child’s birth certificate, naturalization certificate or green card.
Critics of the program have indicated that the system is open to fraud. The Department of Homeland Security Secretary Jeh Johnson promised to review safeguards.
The anti-fraud unit of the USCIS has been expanded and it has increased “the scope and frequency” of fraud investigations. Former USCIS anti-fraud unit head, Louis D. Crocetti, has recommended “more random interviews of applicants and periodic home visits for recipients.”
The USCIS plans to begin accepting applications for the expanded DACA program in February and the DAPA program in May.
Id card for the undocumented
As many await the implementation of President Obama’s executive action on immigration which stands to benefit some 5 million undocumented immigrants, a growing number of cities and states have also initiated measures to help the undocumented better integrate in their communities.
In New York City, the largest municipal identification program in the country has been launched offering municipal ID cards to all New Yorkers age 14 or older regardless of their immigration status.
The municipal ID card or IDNYC will provide undocumented immigrants access to city services, programs, and benefits, which were previously not available to them because of lack of a government-issued ID.
The ID card which will be accepted as identification in more than 10 financial institutions will allow them to open an account with these banks and credit unions. This will also address the problems faced daily by undocumented immigrants who are not able to fill a prescription, sign an apartment lease, gain access to city schools and offices, and other such undertakings requiring a photo ID. With this ID card, they can now provide identification to police officers when asked for it.
The program is expected to benefit not only the estimated 500,000 undocumented immigrants, but all New Yorkers living in the city, especially the most vulnerable residents, such as the homeless and the elderly.
All New Yorkers are encouraged to get the IDNYC card so that it will not be easy to identify undocumented immigrants simply by their use of the card. To entice all New Yorkers to obtain the ID card, IDNYC cardholders will also enjoy free one-year membership at the Bronx Zoo, City Ballet, and other top zoos, museums, concert halls, and botanical gardens in the city.
According to Mayor Bill de Blasio, “New York City has always been the place for inclusion and possibility. We defend that. And this ID epitomizes keeping this an open city.”
Data gathered through the program will not be shared with immigration authorities and other government agencies except for verification purposes of the applicant’s eligibility for additional city benefits and only in response to a judicial subpoena or a warrant.
To obtain the IDNYC card, applicants are required to submit documents proving their identity and city residency which include passports, birth certificates, and driver’s licenses, among others. There are currently 12 enrollment centers across the five boroughs and enrollment for this year is free.
Aside from New York, cities such as Los Angeles, San Francisco, Oakland in California, and New Haven in Connecticut, have also established municipal ID programs.
Meanwhile in California, undocumented immigrants can now apply for driver’s licenses. An estimated 1.5 million immigrants are expected to apply for driver’s licenses in three years’ time. The new policy is expected to make the road safer and improve public safety.
The law allowing undocumented immigrants to apply for driver’s licenses also took effect in Connecticut. Around 28,000 undocumented immigrants have already scheduled an appointment for their driver’s test.
Other states which have enacted law offering driver’s license to the undocumented include Washington state, New Mexico, Utah, Illinois, Nevada, Maryland, Vermont and Colorado. The District of Columbia and Puerto Rico also issue driver’s licenses to undocumented immigrants.
In Illinois, immigration status alone would no longer be valid for state police to detain a person. Outgoing Gov. Pat Quinn issued the executive order so that immigrants who are victims of or witnesses to crime will be more willing to cooperate with law enforcement.
These measures initiated by states and local officials, will without doubt, not only make the lives of the immigrants bearable, but more importantly, allow them to contribute more and be productive in their communities.
DACA Beneficiaries Allowed To Get Driver’s Licenses
By Reuben S. Seguritan
December 24, 2014
The U.S. Supreme Court left undisturbed a U.S. Court of Appeals ruling requiring Arizona to issue driver’s licenses to beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program or the so-called “DREAMers”. The recent decision is a victory and a big gift for thousands of immigrant youth in Arizona this holiday season.
President Obama’s DACA program, which started in 2012, granted deferred action to immigrants who arrived in the United States before turning 16 and who satisfied all other eligibility requirements including meeting the age cap of 31 years, education, physical and continuous presence requirements and passing a criminal background check. Recipients of the program were granted deferred action status and employment authorization for a period of two years.
DACA beneficiaries who obtained work permits and Social Security numbers have been able to apply for driver’s license in 48 states. Only Arizona and Nebraska adopted policies that specifically made DACA beneficiaries ineligible to obtain driver’s licenses.
The decision of the Ninth Circuit Court of Appeals which was upheld by the Supreme Court in a 6 to 3 vote stated that the state’s policy barring DACA recipients from obtaining driver’s licenses was likely unconstitutional. It instructed the federal district court hearing the case to issue a preliminary injunction prohibiting enforcement of the state’s policy while the case continued.
The challenged policy has been in effect for two and a half years. Arizona Governor Janice Brewer, on the very day the DACA program took effect, issued an executive order directing state agencies to make DACA beneficiaries ineligible for “state identification, including driver’s license”
The Arizona Department of Transportation then adopted a policy specifically rejecting employment authorization documents issued to DACA beneficiaries as proof of eligibility for driver’s license. Meanwhile, it continued to accept employment authorization documents of other noncitizens legally in the U.S.
The Appeals Court in its decision stated that the policy most likely violated the Equal Protection Clause. The Appeals Court found no rational basis for the state to treat DACA beneficiaries any differently from other noncitizens who were in the country legally and were allowed to apply for a driver’s license using their employment authorization documents.
According to Justice Harry Pregerson who wrote the opinion, “Defendant’s policy appears intended to express animus towards DACA recipients themselves.”
The Appeals Court also considered the “preemption” claim which basically means that federal law trumps state-enacted regulation. By refusing to grant driver’s licenses to DACA beneficiaries, the state policy “interferes with Congress’ intent that the Executive Branch possess discretion to determine when noncitizens may work in the United States,” the court said.
The DACA program authorizes certain young immigrants to remain in the U.S. and apply for work permits so they can continue being productive members of society. In Arizona, “the ability to drive may be a virtual necessity for people who want to work.”
By ensuring that DACA recipients are unable to drive, the policy severely curtails their ability to work. In so doing, the policy “would stand as an obstacle to the execution of the full purposes and objectives of Congress,” the Appeals Court said.
The Supreme Court in affirming the Appeals Court’s ruling did not give its reasons for its decision. Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr. who disagreed with the majority’s decision also did not give their opinion.
Undocumented Immigrants May Now Join the Military
October 02, 2014
Approximately 5,000 non-citizens, most of whom are permanent residents, are recruited in the military each year. The MAVNI programallows the recruitment of immigrants with skills that are considered critical to the national interest. The program is currently open to individuals with certain temporary visas with advanced medical skills, or who can speak certain languages.
The number of recruits per year under the program is limited to 1,500. Because of the limited scope of the program, it is uncertain how many of the estimated 580,000 DREAMers will qualify.
The lure of the program, despite the obvious risks of being in the Army, is the expedited route to naturalization that it offers. Over 92,000 foreign-born service members have become U.S. citizens since 2001.
The U.S. military has a history of recruiting non-citizens for service during a time of national need. Filipinos were recruited into the Navy after the signing of the Military Bases Agreement in 1947, which allowed the U.S. to have military bases in the Philippines. Over 35,000 Filipinos joined the Navy between 1952 and 1991.
Ordinarily, immigrants on temporary visas wait many years to become permanent residents and usually an extra five years to become naturalized citizens. Service members under this program can become U.S. citizens in as short as 10 weeks.
The MAVNI program was created to fill medical specialties in the military in which it has a shortfall, which include dentists, surgeons and psychology professionals. Health care professionals must meet all qualification criteria for the medical specialty, demonstrate proficiency in English, and commit to at least 3 years of active duty or 6 years in the Selected Reserve.
It has sought to recruit native speakers of any of 44 languages with cultural backgrounds. Tagalog and Cebuano are included. Applicants under this category must demonstrate language proficiency, meet all existing enlistment eligibility criteria and enlist for at least 4 years of active duty.
“We’re just not sure how many within that existing population of DACA would have the linguistic skills to qualify,” says a defense official. “These are kids who entered the country at a fairly young age and have basically grown up in the United States, so the limit of their language talents would probably be the language that they received at home.”
Before the announcement of the new policy thousands of undocumented young immigrants who were granted DACA status were clamoring to enlist in the military but were not eligible under this program. Many believe that allowing them to enlist would help fill recruitment shortages.
Although the change in policy is narrow and limited, it is the hope of immigrant advocates that the Obama administration would soon allow a greater number of undocumented immigrants to serve in the military.
Nonimmigrant Visa for Nurse Trainees
September 24, 2014
Visa Processing Fee Changes Take Effect September 12
By Reuben S. Seguritan
September 10, 2014
A new schedule of fees for a number of consular services will go into effect on September 12, 2014. Every year the Department of State (DOS) reviews the cost of services and the new fees more accurately reflect the costs to the Department for providing these services.
Immigrant processing fee for employment-based visa application will decrease by $60 from $405 to $345 while the fee for family-based visa application will increase by $95 from $230 to $325. The increase in processing fee for family-based immigrant visa is based on the August 2013 cost-of-service model update which shows that visa processing for this category costs more than other categories. All other immigrant visa applications will decrease from $220 to $205.
The nonimmigrant visa processing fee for Treaty Investors (E-1) and Trade (E-2) visas will decrease by $65 from $270 down to $205. The fee for Fiancé(e) (K) visas will increase by $25 from $240 to $265. The fee for Border Crossing Card for Mexican citizen minor applicants under the age of 15 will increase by $1 from $15 to $16. Fees for all other categories of nonimmigrant visa processing will remain the same.
The fee for determining returning resident status will decrease from $275 to $180. The fee for waiver of the two-year residence requirement for J-1 visa holders will also drop from $215 to $120. The affidavit of support fee, on the other hand, will increase by $32 from $88 to $120.
The fee for administrative processing of formal renunciation of U.S. citizenship will increase to $2,350 which is five times more the current fee of $450. The increase is largely due to the substantial amount of time consular officers spend to accept, process, and adjudicate these requests.
The charge for consular time or fee for services performed outside normal business hours will be lowered from $231 to $135.
The proposed fees were published in the Federal Register on August 28, 2014 and will take effect September 12 or 15 days from publication. Applicants will have to pay the fee in effect on the day of payment. Individuals availing of American Citizen Services at a U.S. Embassy or Consulate are required to pay the fees on the date the services are delivered. They cannot pay the fees in advance.
For immigrant visa applicants, they will pay the fee printed on the fee bill they receive from the National Visa Center. Immigrant visa receipts are valid for one year.
For nonimmigrant visa applicants, they will be charged the processing fee in effect on the date of payment. Payment of nonimmigrant fees is generally made in advance of the appointment. Where there is an increase in the processing fee, receipts for payments made 90 days prior to September 12 or through December 11, 2014 will still be accepted and the applicant does not need to pay for the difference. After that date, however, the applicant will have to pay the balance when he appears for his appointment.
If the processing fee for the visa category declines and the applicant paid prior to September 12, he will not be entitled to a refund.
The last time the processing fees were increased was two years ago. The fee changes are based on the Department of State’s latest cost-of-service study. The DOS estimates that it will process more than 11 million nonimmigrant visa applications and around 600,000 immigrant visa applications for fiscal year 2014.
Work Visa for Nannies
By Reuben S. Seguritan
September 03, 2014
Nannies may enter the United States under an H-2B visa to perform temporary work. This H-2B visa allows a foreign worker to do nonagricultural work or services on a temporary basis.
To petition a foreign worker for H-2B visa, the petitioner must apply for a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.
The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time. The temporary need for a nanny, for example, may include proof that the child will be going to nursery school in one year or that either parent has a definite plan to stop working at a certain time.
When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.
The temporary nature of the employer’s need for the services for an H-2B petition shall be a one-time occurrence, seasonal, peak load or intermittent need. A U.S. employer may file an H-2B petition, based on his need, for both unskilled workers such as kitchen helpers, construction workers, dining room attendants and landscape laborers as well as skilled workers like computer programmers, production managers, trainers and chefs.
The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.
The Philippines as well as 62 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2014. An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.
An H-2B petition for a beneficiary already in the U.S. must provide for the name of the beneficiary. The beneficiary must also apply for change of status on Form I-539.
When an H-2B petition has been approved, both name and unnamed beneficiaries may be substituted so long as the initial beneficiaries have not been admitted in the U.S. Substitute beneficiaries may not exceed the number of beneficiaries in the approved labor certification.
Substitution is no longer allowed where the beneficiary is already in the U.S. A new petition with an approved labor certification must be filed.
There is a cap of 66,000 visas per year. Accompanying family members of H-2B visa holders who are granted H-4 status as well as extension of stays for H-2B visa holders do not count towards the cap.
USCIS Issues New Guidance on H-1B for RNs
By Reuben S. Seguritan
August 06, 2014
In response to the changes in the nursing industry, the USCIS has recently released a new policy memorandum providing guidance in the adjudication of H-1B petitions for registered nurses.
The new memorandum does not contain significant changes to the present criteria for H-1B classification of nursing positions. It maintains that most Registered Nurse positions are not specialty occupations. However, the memo points to some situations where the petitioner may be able to show that a nursing position qualifies as a specialty occupation.
Generally, for a position to be eligible for H-1B, the prospective employer must prove at least one of the following: (a) a baccalaureate degree or its equivalent is normally the minimum requirement for entry into the particular position; (b) the degree requirement is common to the industry in parallel positions among similar organizations; (c) the employer normally requires a degree or its equivalent for the position; or (d) the nature of the duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
H-1B petitions for registered nurses are mostly denied because nursing positions, according to the Department of Labor Occupational Outlook Handbook, generally do not require a four-year bachelor’s degree. However, there are exceptions to this general rule.
The memo made special mention of hospitals with magnet status and how achieving such status “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice.”
Magnet status is conferred to health care organizations that advance nursing excellence and leadership and recognized by the American Nurses Credentialing Center (ANCC) Magnet Recognition Program.
Although the memo did not state in particular that a nurse manager position at a Magnet hospital qualifies for H-1B classification, the memo mentioned that “as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” This may be indication that the USCIS recognizes such nursing position as a specialty occupation.
Interestingly, the memo also listed a number of nursing positions and the duties associated with the positions. The list includes addiction nurses, cardiovascular nurses, critical care nurses, emergency room nurses, genetic nurses, neonatology nurses, nephrology nurses, oncology nurses, pediatric nurses, peri-operative nurses (operating room) nurses, rehabilitation nurses, and other nurses. Although it did not make specific mention as to which nursing positions would qualify as specialty occupations, the memo indicated that “depending on the facts of the case, some of these RN positions may qualify as specialty occupations.”
Also noted in the memo is a situation where an RN position can be considered a specialty occupation in a state which requires at least a bachelor’s degree to obtain a nursing license. However, as of today, no state is currently requiring a bachelor’s degree for licensure.
Advance Practice Registered Nurses (APRN), on the other hand, generally qualify for H-1B classification because of the advanced level of education and training required for certification. The memo listed the following as APRN occupations that may satisfy the requirements for specialty occupation: Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Nurse Anesthetist.
Employment-based Priority Dates Continue to Advance
By Reuben S. Seguritan
July 23, 2014
The August 2014 Visa Bulletin shows that the Philippine employment-based third preference (EB-3) cut-off date will jump by seventeen weeks from January 1, 2009 to June 1, 2010.
China will advance by over two years to November 1, 2008 and India will move by over one week. The third preference cut-off date for all other countries will remain at April 1, 2011.
The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by over three months to October 8, 2009 while India’s cut-off date will move by more than four months to January 22, 2009. All the other employment preferences will remain current for all countries.
The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – April 22, 2007; F-2A – May 1, 2012; F-2B – July 1, 2007; F-3 – November 15, 2003 and F-4 – January 1, 2002.
The Philippines cut-off dates are: F-1 – June 1, 2004 (advance by 17 months); F-2A – May 1, 2012; F-2B – October 8, 2003; F-3 – April 15, 1993 and F-4 – January 22, 1991.
The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued under certain preference categories. The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the INA.
If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.
Because of the long wait period, beneficiaries of employment-based preference petitions, such as foreign nurses sponsored under the EB-3 category whose priority dates are before June 1, 2010 may be required to update their documents such as their visa screen certificate and professional license, among others.
Also, the USCIS has recently required adjustment applicants to submit a new Form I-693 (Report of Medical Examination and Vaccination Record). Since about 2004, the USCIS has extended the validity of the civil surgeon’s endorsement on Form I-693 until the adjudication of the adjustment of status application but effective last June 1, Forms I-693 which are more than one year old were no longer valid.
Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and who are outside the United States will have to apply for an immigrant visa at a consular post abroad. Those who are currently living in the U.S. may apply for adjustment of status.
Those with pending adjustment of status application will be allowed to remain and work in the U.S. while their adjustment application is being adjudicated. Beneficiaries of employment-based preference petition whose adjustment of status has been pending for 180 days or longer may transfer to another employer pursuant to the portability rule subject to certain eligibility requirements.
The portability rule under the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) allows an adjustment applicant to change employers if the new job is in the same or similar occupational classification, the Form I-140 has been approved or is approvable when concurrently filed with the adjustment application and the I-485 application has been pending for 180 or more.
The 180-day period starts from the date the I-485 application was received by the USICS as indicated in the USCIS receipt notice. If the adjustment applicant meets all the requirements, he may change employers under AC21. It is however advisable for the adjustment applicant to notify the USCIS after he starts his new employment in order to avoid Requests for Evidence or Notice of Intent to Deny from the USCIS.
What You Need to Know Before Renewing DACA
By Reuben S. Seguritan
June 18, 2014
Young immigrants whose two-year deferred action under President Obama’s Deferred Action for Childhood Arrivals (DACA) program is about to expire are reminded to submit their renewal applications. The USCIS recently released the process for renewal and urged the filing of renewal requests 120 days or 4 months before the date the grant of DACA expires.
If the initial grant of deferred action expires before the request for renewal is approved, unlawful presence accrues and the applicant will not be allowed to work before receiving a new employment authorization document from the USCIS.
To be eligible for renewal, applicants must satisfy the eligibility requirements under the initial DACA guidelines. In addition, they must meet the following: (1) did not depart the U.S. on or after August 15, 2012 without advance parole; (2) continuously resided in the U.S. since submitting the most recent DACA request that was approved; and (3) have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.
An applicant must complete and sign the new version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, accompanied by Form I-765, Application for Employment Authorization, to renew work permit, and Form I-765WS Worksheet.
The application must be submitted with the $380 filing fee for the Form I-765 and $85 for biometrics fee, totaling $465 in filing fees. The check must be made payable to the U.S. Department of Homeland Security.
The USCIS has advised not to submit additional documents in the renewal application unless the applicant has new documents involving removal proceedings or criminal history which were not previously submitted in the approved DACA request. The USCIS may, however, request additional documents or statements.
To verify information in the renewal application, it may contact other government agencies, education institutions, employers or other entities. Knowingly and willingly providing materially false information is a felony.
Meanwhile, those who have not yet requested deferred action under the DACA program may still apply. First time applicants must meet the following eligibility requirements as set forth in the initial DACA guidelines: came to the U.S. before his 16th birthday and under 31 as of June 15, 2012; continuously resided in the U.S. since June 15, 2007 up to the present; was physically present in the U.S. on June 15, 2012 and at the time of making the request; and had no lawful status on June 15, 2012.
Also, they must be currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; and not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety.
Over 560,000 have been granted DACA status. Deferred action under the DACA program grants temporary reprieve from deportation and allows many to obtain driver’s license and even in-state tuition, in some cases. Although it authorizes the recipient to work for a certain period of time, it does not lead to lawful permanent residence nor provide lawful status.
Department of Homeland Security Secretary Jeh Johnson said that a child who crossed the border was not making an adult choice to violate the law and should be treated differently than adult law-breakers. He went on to say that, “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”