Author: Ann Buwalda

UPDATE: USCIS Now Accepting EAD Applications for Certain H-4 Spouses

Ann Buwalda employment authorization, employment visa, H-1B , , ,

USCIS is now accepting applications for Employment Authorization Documents (EADs) from H-4 dependent spouses.  To qualify for work authorization, the H-4 dependent must be the spouse of an H-1B holder with an approved immigration petition or who has been granted H-1B status beyond the 6 year limit based on AC 21.  (Please refer to our previous blog post here for more information regarding eligibility for this program.)

As we reported in our previous blog post, found here, on April 23, 2015, a lawsuit was filed against the Department of Homeland Security (DHS) to invalidate the new H-4 Spouse EAD program.  At this time, the lawsuit does not have any impact on the program, and we at Just Law International, P.C., are moving forward with H-4 Spouse EAD applications as planned.  Please do not hesitate to contact us for more information and to schedule a consultation regarding your eligibility for an EAD application.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

UPDATE: Expanded DACA & DAPA Still On Hold

Ann Buwalda DACA, DAPA, Executive Action , , ,

On May 26, 2015, a divided Fifth Circuit Court of Appeals denied the federal government’s request for an emergency
stay of the preliminary injunction that halted the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA).  Therefore, the hold on DAPA and expanded DACA will remain in place at least until the Fifth Circuit decides on the government’s appeal of the preliminary injunction itself.  Arguments are scheduled for early July 2015.  Meanwhile, the underlying case challenging the constitutionality of President Obama’s executive action that created these deferred action programs is still pending in a District Court in Texas and the case is in the early stages of discovery.

What this all means is that the implementation of DAPA and expanded DACA remains uncertain.  We will continue to provide updates here on the blog as the case progresses.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

Lawsuit filed to challenge USCIS’ H-4 Spouse EAD program

Ann Buwalda employment authorization, employment visa, Executive Action, H-1B , , , ,

On February 24, 2015, USCIS announced that it would expand eligibility for an Employment Authorization Document (EAD) to certain H-4 spouses whose primary H-1B holders have an approved immigration petition or have been granted H-1B status beyond the 6 year limit based on AC 21.  (Please refer to our previous blog post here for more information regarding eligibility for this program.)

On April 23, 2015, “SAVE Jobs USA,” a group of former SCE employees filed a declaratory suiH4 lawsuitt against the Department of Homeland Security (DHS) to invalidate the new H-4 Spouse EAD program, which is scheduled to take effect on May 26, 2015.  (See Save Jobs USA v. DHS, Civil Action No. 1:15-cv-615, United States District for District of Columbia.)

SAVE Jobs USA contends that its members will be injured by the H-4 Spouse EAD program because they will be forced into greater competition with foreign workers for jobs.  The complaint alleges that DHS acted arbitrarily and capriciously by authorizing the program, and that “the H-4 rule is in excess of DHS authority and directly contradicts several provisions of Immigration and Nationality Act.”  According to the May 2015 court calendar, no hearing has been scheduled in the matter.

At this time, the lawsuit does not have any immediate impact on the program and it will still take effect on May 26, 2015.  However, if the court grants a preliminary injunction, the program will be temporarily suspended as in the case of the new DAPA program and expanded DACA.

We at Just Law International, P.C., will continue to provide updates on the pending lawsuit and the H-4 Spouse EAD program.  Until the court makes a decision regarding the preliminary injunction, we will move forward with H-4 Spouse EAD applications as planned.  Please do not hesitate to contact us for more information and to schedule a consultation regarding your eligibility for an EAD application.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

Asylum Office Changes:  The Good & Bad for Asylum Applicants

Ann Buwalda Asylum , , , ,

The USCIS Asylum Offices recently announced significant changes in the way they prioritize affirmative asylum applications, which is good news for some, and not so good for others.

Traditionally, Asylum Offices processed cases on a “last in, first out” basis, meaning they prioritized cases filed most recently.  This was intended to decrease the number of frivolous cases filed by people who, knowing the process would take several years used an asylum application as a way to stay in the U.S. and obtain work authorization.

The “last in, first out” system works as long as the Asylum Offices are able to keep up with the number of cases being filed.  This had been the case from 1997 when the procedure was first implemented until approximately 2013, with most applicants receiving interviews within three to five weeks.

waiting in lineThis changed, however, in early 2013, when large numbers of Central Americans, mostly children, began arriving at the U.S. border and claiming asylum.  These cases received priority because the applicants were primarily detained and/or minors.  The influx of cases overwhelmed the Asylum Offices and created a backlog of affirmative asylum cases, resulting in frustration for many applicants who subsequently had to wait years for an interview while others who filed more recently only had to wait a few months.

Despite Asylum Office efforts to hire additional asylum officers, the backlog remained.  So, as of late December 2014, the Asylum Offices decided to change the way they prioritize cases.  Applications are now adjudicated according to the following priorities:

  • 1st – Rescheduled cases (applications that were scheduled for an interview, but the applicant requested a new interview date);
  • 2nd – Applications filed by minors; and
  • 3rd – Applications filed by adults on a first in, first out

This is extremely good news for applicants in the backlog because it means that Asylum Offices are now prioritizing pending cases over newly filed cases and they should receive interviews sooner rather than later.  At Just Law International, clients whose asylum applications have been pending since 2013 are in fact receiving interviews.

The bad news is that all new asylum applicants now have a long wait for interviews (the official estimate from USCIS is 20-24 months).  There are ways an applicant can try speeding up her case, such as the “short-notice” list for those pending at the Arlington Asylum Office, or a request for an expedited interview based on “compelling or exceptional circumstances.”  At Just Law International, we can help you determine if either is an option for you, and assist you with the request.  We can also help track your case and ensure that you receive work authorization as soon as possible after you file.  Please contact us to schedule an appointment to discuss your case and the options available to you.  Asylum is complicated, and especially now with these changes, you need an experienced attorney advocating for you and helping you through the process.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

Expansion of DACA and Implementation of DAPA Temporarily Suspended

Ann Buwalda DACA, DAPA, employment authorization, Executive Action , , , ,

On November 20, 2014, among the executive actions announced by President Obama, two of those initiatives involved changes in the immigration system that would affect millions of undocumented aliens in the U.S. – 1) the expansion of an existing program called Deferred Action for Childhood Arrivals (DACA), and 2) the implementation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

DACA, which was originally implemented in 2012, suspends removal of an undocumented alien for a temporary period of time under the policy of prosecutorial discretion.  It does not provide permanent resident status or a patU.S. Department of Homeland Security Logoh to U.S. citizenship.  Currently, the eligibility requirements for DACA include: being under the age of 31 as of June 15, 2012; arrival in the U.S. before turning 16 years old; continuous residence in the U.S. since June 15, 2007; possessing no lawful status on June 15, 2012; currently attending school, or have a high school diploma, or has earned a GED; and lack of a felony conviction, significant misdemeanor, multiple misdemeanors, and/or threat to national security or public safety.  Keep in mind that having a criminal record does not automatically preclude an applicant from DACA eligibility.  USCIS examines the totality of the circumstances for each individual case to determine the exercise of prosecutorial discretion.

The new DACA program expands the above eligibility requirements to include applicants of any age who entered the U.S. before age 16, have lived in the U.S. continuously since January 1, 2010, and meet all other existing DACA guidelines.  It also extends the period of deferred action and work authorization from the current period of two years to three years.

The new DAPA program also suspends removal of an undocumented alien for a temporary period of time.  It will allow people who are parents of U.S. citizens and lawful permanent residents as of November 20, 2014, to apply for an initial three year period of deferred action and employment authorization.  DAPA eligibility requires that applicants have resided in the U.S. continuously since January 1, 2010, pass background checks, and are not a removal priority as outlined in the November 20, 2014 Memorandum, Policies for The Apprehension, Detention and Removal of Undocumented Immigrants.  Like DACA, it does not provide permanent resident status or a path to U.S. citizenship.

USCIS had arranged to begin accepting applications for the expanded DACA program on February 18, 2015, and had planned to accept applications for the new DAPA program in May 2015, however, this effort was impeded on February 16, 2015, when Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, Brownsville Division, issued an order for preliminary injunction.  The preliminary injunction has temporarily suspended USCIS from implementing the two new programs as Judge Hanen considers the lawsuit brought by 26 states seeking declaratory and injunctive relief against the United States and five federal officials for violation of the Take Care Clause of the U.S. Constitution and the Administrative Procedures Act.

On March 12, 2015, the U.S. Department of Justice filed an emergency motion for stay pending appeal of State of Texas, et al v. United States of America.  If granted by the Fifth Circuit Court of Appeals, the Court order will halt the district court’s preliminary injunction on the expansion of DACA and implementation of DAPA in all states, or limit the preliminary injunction to the 26 states that are Plaintiffs to the lawsuit.  In support of the DOJ’s motion to stay on the injunction, fourteen states and the District of Columbia filed an amicus brief the same day.

It is important to note that the preliminary injunction has no effect on the existing DACA program implemented under the guidelines issued in 2012.  New applicants for DACA and those seeking to renew their status may continue to apply for and benefit from the existing DACA program.

The experienced attorneys at Just Law International, P.C. are ready to assist you in preparing your DACA application and also provide sound advice on how to prepare in advance for the expanded DACA and DAPA programs.  Please contact us to schedule an appointment to discuss the details of your case.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

H-4 Dependents’ eligibility to have a Work Permit (EAD)

Ann Buwalda employment authorization, Executive Action, H-1B , , ,

Based on President Obama’s Executive Action announced in November 2014, USCIS has recently expanded the eligibility for the Employment Authorization Document filing on February 24, 2015.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” USCIS Director Leon h4visaholder_work_authorization-e1372649234387Rodríguez said. “It helps 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. It also provides more economic stability and better quality of life for the affected families.”

With the change, certain H-4 dependents are eligible to file for an EAD.  To be eligible, an individual must be the H-4 dependent spouse of an H-1B visa-holder who is (1) the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) has received extended H-1B status beyond the six-year limit based on AC 21 (American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act) – which is a Labor Certification application or an I-140 pending at least 365 days.

USCIS will begin accepting these eligible H-4 dependents’ EAD applications on May 26, 2015. Please note that H-4 dependents’ EAD applications submitted before May 26, 2015 will be rejected.

Please stay tuned and contact the experienced lawyers at Just Law International, P.C. to prepare and file your H-4 spouses’ new EAD application.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

Beware of H-1B Deadline

Ann Buwalda employment visa, H-1B , , ,

The H-1B visa program is the most practical way for US businesses to hire foreign professional workers.  This visa is for specialty occupations that require a bachelor’s degree in a specialty field or equivalent combination of education and/or experience.   Employment under the H-1B visa may be approved for three years and can be extended for another three year increment, totaling a maximum of six years.  Certain H-1B holders pursuing a green card are eligible to extend the visa beyond the 6 year limitation.

April 1Please keep in mind that H-1B petitions may not be filed year-round.   This particular visa type has a numerical limit that USCIS (US Citizenship and Immigration Services) accepts every fiscal year.  The number is called the “cap” and the current annual cap is 65,000 for regular H-1B applicants plus an additional 20,000 H-1B visas are available as the Master’s degree cap exemption.  This means that USCIS accepts only the first 85,000 petitions from US employers annually.  USCIS will begin accepting H-1B applications on April 1 and will continue to accept filings for the subsequent five business days.  Most years, the cap is not only met within those first few days of the open, about three times the number of H-1B petitions are filed than visas exist.  If more than 65,000 petitions are received during the first week of April, USCIS performs a computerized lottery to randomly select the petitions to review.  Non-selected petitions are returned along with filing fees uncashed.  The cap-subject H-1B employment starts on October 1.

For F-1 students with OPT (Optional Practical Training), timely H-1B filing will extend your OPT until the H-1B start date of October 1.  Please consult with a lawyer for more details and options.

US employers must plan ahead to avoid missing the H-1B filing deadline.  There are certain prerequisites to file an H-1B petition with USCIS, and US employers are encouraged to contact an immigration lawyer as early as possible.

The experienced attorneys at Just Law International, P.C. are  fully equipped to serve you in preparing and filing H-1B petitions.  Please contact us and schedule a consultation to discuss further details and options.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.