Executive Action

UPDATE: U.S. Supreme Court Will Hear Case on Expanded DACA & DAPA

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After a divided Fifth Circuit Court of Appeals denied the federal government’s request for an emergency stay of the preliminary injunction blocking the implementation of DAPA and the expansion of DACA, the Obama administration appealed the injunction itself.  After a denial from the Fifth Circuit Court of Appeals, the Obama administration took the case all the way to the U.S. Supreme Court, and on January 19, 2016, the Supreme Court granted the administration’s petition to hear the case.  Oral arguments will most likely occur in April 2016, with the Court deciding the case sometime before the end of June 2016.

If the Supreme Court rules in the Obama administration’s favor, it means the President will have six to seven months to implement DAPA and expanded DACA before he leaves office, and that could have a significant impact on many undocumented individuals currently residing in the United States.

The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program would allow those who are parents of U.S. citizens and lawful permanent residents and who meet certain requirements to apply for an initial three year period of deferred action and employment authorization.

The expanded Deferred Action for Childhood Arrivals (DACA) would allow applicants of any age and who otherwise meet the eligibility requirements to apply for deferred action, and it would extend the period of deferred action and work authorization from two to three years.

If you think you may be eligible for DAPA or expanded DACA, don’t hesitate to contact one of our offices for a consultation.

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.

UPDATE: Expanded DACA & DAPA Still On Hold

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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

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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.

Expansion of DACA and Implementation of DAPA Temporarily Suspended

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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)

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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.