Secretary Johnson Announces Process for DACA Renewal

In early June, Secretary of Homeland Security Jeh Johnson released the procedure for individuals to renew their enrollment in the Deferred Action for Childhood Arrivals (DACA) program. The Federal Register now has the updated form that individuals, who were already enrolled in DACA, can use to extend their deferral for two years. USCIS has already begun taking forms for renewal. USCIS is also taking forms from those who were not previously enrolled in DACA. Over 560,000 individuals have enrolled in DACA since April 2014.

The DACA approvals for those who were already enrolled will start expiring in September 2014. To prevent deferral and an interruption in employment authorization, individuals must re-enroll for the program before their approvals expire—according to USCIS, individuals should re-enroll at least 120 days, or four months, before their deferred action lapses.

DACA defers removal action for certain individuals, and allows them to stay in the US and acquire employment authorization for two years. Individuals who were not previously enrolled in DACA, but meet DACA’s guidelines, may still apply for deferral. Only those who have steadily lived in the US since June 15, 2007 are qualified for DACA.

Individuals can re-enroll in DACA if they meet these guidelines:

  • Did not depart the US on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the US since they submitted their most recent DACA request that was approved; and
  • 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.

You may renew your enrollment in DACA by filling out the new Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. Form I-765 has a filing and biometrics fee of $465. USCIS will also run a background check on DACA renewals.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

logo

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

DACA Applications Received and Approved

Since the Obama Administration announced the Deferred Children for Childhood Arrivals (DACA) Memorandum, which allows immigrants who meet certain requirements to apply for deferred action, 53,273 applications have successfully gone through the entire approval office and been accepted.

A total of 308,935 applications have been submitted for approval since August — 298,834 of those applications have been accepted for the approval process; 10,101 have been rejected; 273,203 have been scheduled for biometrics; and 124,572 are still under review for complete approval. Almost 4,827 average requests are filed per day.

Of the top countries of origin, Mexico is the highest with 212,514 applications received to date. The other top countries are El Salvador, Honduras, Guatemala, Peru, South Korea, Brazil, Colombia, Ecuador and the Philippines. Of the top states of residence, California is the highest with 81,858 applications received to date. The other top states of residence are Texas, New York, Florida, Illinois, North Carolina, Arizona, New Jersey, Georgia and Virginia.

There is no application deadline for DACA.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

How DACA Affects Employers

As of today, USCIS has received 298,834 applications for Deferred Action for Childhood Arrivals (DACA) eligibility. Of these, 53,273 have been approved; workers who have been approved will either seek new employment or continue with past employment. My previous blog post from mid-October discussed how employers could unintentionally admit to ‘knowingly’ hiring unauthorized workers who apply for DACA.

DACA allows illegal immigrants, who meet certain guidelines, to remain in the US. Individuals who receive approval, also receive USCIS-issue work authorization cards called Employment Authorization Document (EAD) to demonstrate eligibility to work in the US for US employers.

Under current law, employers must keep a Form I-9 for all hired employees, both citizens and non-citizens, who are engaged to work in the US. USCIS has now issued specific guidance for employers about treatment of DACA recipients’ EAD cards, and procedures to record and process their Forms I-9 for these employees.

Hiring new Employees with EAD cards issued under DACA

In order to properly complete a Form I-9, certain documentation is required to prove both identity and employment authorization; under List A, an unexpired EAD is an acceptable document for Form I-9 completion.

The DACA EAD provides proof that an employee has been allowed to stay in the US and has been authorized to work, but has no legal status. The employer can enter EAD information in Section 2 under List A since an EAD card provides both proof of identity and work authorization. The EAD alone provides I-9 proof of the employee’s ability to work in the US; if the employer is presented with an EAD, he or she may not ask for additional documents. When an EAD expires, the employer must reverify that the employee still has work authorization in Section 3 of Form I-9.

Guidance for Processing Existing Employees

Employers who collect updated documentation from employees should examine the employee’s previously completed Form I-9 to decide whether a new Form I-9 should be completed for that employee, or decide to only complete Section 3 of the original Form I-9.

Employers should complete a new Form I-9, write the original hire date in Section 2 and attach the new I-9 to the old I-9 if any of the following changes from Section 1 of the previously completed I-9:

  • employee’s name
  • date of birth
  • attestation
  • social security number (if one was provided)

Employers should only complete Section 3 of the previously completed I-9 if:

  • information from Section 1 hasn’t changed or if
  • the employee provides a new EAD

The employer should examine the documentation for authenticity; and, if provided, record the document title, number and expiration date. Employers should also sign and date Section 3.

Guidance on E-Verify

If the employer must complete a new Form I-9, and uses E-Verify, then the employer should confirm the new I-9 information through E-Verify. If the employer only has to complete Section 3 of I-9, then an E-Verify check is not required.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

DHS Grants Same-Sex Couples a Reprieve

US immigration allows US citizens, who are ‘married’ to citizens of other countries, to apply for permanent residency based on marriage. In other words, the foreign spouse can qualify for permanent residency based on their marital relationship with the US citizen. The US government is now seeking to expand the scope of the marital relationship to include same-sex couples in long-term relationships.

To achieve this, in June 2011 the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) issued a policy called, “Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”, or the Prosecutorial Discretion Memorandum. This policy outlined the guidelines that enforcement officers are to follow when finding and removing illegal aliens from the US. This memo was issued to explain the position that DHS and ICE would take on treatment of young immigrants who are in long-term, same-sex relationships with American citizens.

In a written statement in September, DHS further clarified the Prosecutorial Discretion Memorandum by specifically stating that young immigrants, with American same-sex partners, will remain eligible for deferral, which means that no action would be taken to remove foreign-born, same-sex couples from the US.

Prosecutorial Discretion Policy

Prosecutorial discretion is the act of an agency or officer deciding how to bring charges upon a person and how to handle a case.

When deciding how to pursue a case, enforcement officers follow the guidelines of the Prosecutorial Discretion Memorandum. As the guidelines state, officers must asses an individual’s “ties and contributions to the community, including family relationships.” As it was made clear by DHS Secretary Janet Napolitano this September 2012, these ‘family relationships’ also include “committed, long-term, same-sex partners.” Instead of centering efforts on cases that do not pose a threat to US security, the Obama administration is focusing enforcement resources on deporting immigrants who are potential risks to public safety and national security.

Policy Ambiguities

Though guidelines for same-sex couples were outlined in the Prosecutorial Discretion Memorandum, many thought the memo was vague. In July, over 80 Democrats from the House of Representatives wrote to Secretary Napolitano, “it would be beyond senseless to see L.G.B.T. persons with family ties here in the United States deported” because officers might be uninformed about the guidelines on gay partners (NYT, “Same-Sex Couples Granted Protection in Deportations”, 28 Sept 2012).

Thousands of deportation cases have been closed since DHS’s clarification. While immigrants-in-question can remain in the US, they still will not be granted legal status.

DHS’s clarification does not affect the issue of gay immigrants, who are married to American citizens, being able to acquire permanent resident visas. According to current law, same-sex immigrant spouses are not eligible for green cards and can be deported.

DHS may not deport same-sex couples, and will give these couples reprieve. However, deferral is not a path for citizenship. We will wait until November to see if these policies will be continued.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Employers Could Admit to ‘Knowingly’ Hiring

Young immigrants applying to Deferred Action for Childhood Arrivals (DACA) must prove that they have lived in the US for at least five years, and one way to obtain evidence is to ask employers to supply proof of job status. However, employers who consent might also be admitting that they ‘knowingly’ hired an unauthorized worker, which violates federal law.

Low Figures

There are an estimated 1.2 million young immigrants who are eligible for DACA, but since Aug. 15, when US Citizenship and Immigration Services (USCIS) began accepting applications, the Department of Homeland Security (DHS) has only received over 82,000 applications. Figures are lower than predicted, partly because of unforeseen drawbacks in DACA guidelines.

If young immigrants receive eligibility for DACA, they receive deferred action and legal work permits; but they do not receive legal immigration status. While DACA does not lead to a ‘green card’, in most states, applicants are eligible for a driver’s license, a huge benefit.

‘Knowingly’ Hiring and New DACA Guidelines

In order to be eligible, young immigrants must be enrolled in school or have a high school diploma, which may present a dilemma for employers and applicants alike. Many employers rely on low-wage labor in order to run their businesses, and many employees are young immigrants who must work in order to pay for university, or who were forced to drop out because they couldn’t afford university costs. It is estimated that 740,000 working immigrants are eligible for DACA.

USCIS, a division of DHS, made addendums to the DACA guidelines, confirming that employers can help verify DACA applicants. Evidence of knowingly hiring unauthorized workers will not be revealed, “unless there is evidence of egregious violations of criminal statutes or widespread abuses,” the guidelines state. All DHS enforcement resources are being directed towards threats on public safety.  However, the term ‘egregious violations’, has not been defined in the guidance.

DACA guidelines ask applicants to provide any Social Security numbers (SSN) they have previously used. Falsification of SSNs, whether they are fake numbers or real numbers belonging to someone else, is a common occurrence and can be seen as evidence of fraud or identity theft. However, the new guidelines state that the form is only inquiring about numbers, “that were officially issued to you by the Social Security Administration.”  Hence no disclosure of social security numbers is required if the number was not specifically applied for by the applicant. This is a huge relief for E-verify employers, who may reduce the possibility of facing social security mismatches and tentative non-confirmation messages from the Social Security Administration.

The bottom line is that no DACA applicant will be given immunity, but DHS is not interested in using the application as a means to discover individuals who may have abused federal law in an employee-employer relationship.

(NYTimes, “Deportation Deferrals Put Employers of Immigrants in a Bind”, 9/26/2012)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Employer Liability on DACA Issues

Mike is 27 and has a GED; he is employed by XYZ company. He applies for an Employment Authorization Document (EAD) card under the Deferred Action for Childhood Arrivals (DACA) Memorandum. When he goes to his boss at XYZ, he tenders the EAD as evidence of his newly minted status as being allowed to work legally. While DACA does not confer status on Mike, he is now allowed to work legally for XYZ. Many employer liability issues arise from this scenario.

Employer Liability

Firstly, as the employer, XYZ could have constructive knowledge of the employee‘s prior unauthorized status. Hence, the employer could be charged under Missouri Omnibus immigration law as ‘knowingly’ employing an unauthorized worker in the US. In addition, XYZ could be charged with violating Form I-9 laws.

Secondly, the employer may have other potential Form I-9 issues. Now that the employer has constructive knowledge of the employee not having work authorization in the US, the employer may have to seriously consider terminating the employee, or could potentially become liable of knowingly retaining an employee whose immigration status is under question.

However, an employer is not supposed to be an immigration document expert. If the employer previously employed a worker who provided false documents that appeared to be valid and to relate to the individual employee, then the employer may provide a “good faith argument” if there is an ICE audit.

Yet, if a prior employee now declares that he/she is eligible for DACA work authorization, the employer needs to make certain that this policy of terminating this ‘newly discovered’ unauthorized employee does not discriminate against other similarly placed employees in the employer’s workforce. In other words, the employer cannot have one policy towards ‘seemingly foreign looking individuals’ and another policy towards ‘seemingly US born individuals’ if both populations present with similar DACA-related issues. This is called national origin discrimination.

Form I-9 Issues

The employer, under I-9 guidance, may have to terminate the employee who needs DACA employment authorization in order to continue working with the employee. The employer may have to terminate the employee and, if needed, rehire after new DACA-related employment authorization has been produced by the employee. The employer may also have to manage employer liability, and purge their employment records of all unnecessary I-9 documents in line with USCIS guidance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Post-DACA, Illegal Immigrants Face Challenges in Arizona

After this summer’s Deferred Action for Childhood Arrivals (DACA) Memorandum, illegal immigrants have been on the receiving end of great news. However, the story is slightly different in Arizona, even after many of the state’s immigration laws were found unconstitutional this past July.

Deferred Action Challenges

According to DACA, in order to be eligible for deferred action, a child must, “currently be in school, have graduated from high school, or have obtained a general education development certificate.” Arizona passed Proposition 300 in 2006, which prohibits state-funded schools from admitting undocumented immigrants to free GED classes. The situation has become problematic for illegal immigrants who are now too old to take classes in the public school system.

Denial of Benefits

In August, both Arizona Gov. Jan Brewer and Nebraska Gov. Dave Heineman issued executive orders to prohibit deferred action applicants from acquiring a driver’s license or other public benefits. Texas Gov. Rick Perry has also followed suit.

Taking the GED

While it is not compulsory to take a GED course before taking the exam, it is required that test-takers present two forms of identification at the exam. Many undocumented immigrants do not have green cards or work visas, which complicates things. The best option is to take an online course, which does not necessitate legal presence.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Deferred Status for Dreamers

In the last few months, there has been many reports on Obama’s new Deferred Action for Childhood Arrivals (DACA) Memorandum, a form of prosecutorial discretion. The memorandum states that children who entered before June 15 2012, and before they turn 15 years old, could be granted authority to work and lawful status for a period of two years. There are a lot of misunderstandings about the benefits offered, and not enough understanding about the dangers and caveats of filing this application.

Radio Stations Report Incorrect Facts about Deferred Status
Even reputable radio stations get the facts wrong. KMOX and NPR both erroneously reported the incorrect age of eligibility. The eligibility starts at age 15 and ends at age 31, not 30 as these stations reported.

No Path to Citizenship
Deferred action does not confer any lawful immigration status, such as the status enjoyed while waiting for an adjustment of status. Deferred action also does not change the current immigration status, such as a grant of a visa, or lead to US citizenship.

What deferred status provides is a period of authorized stay. In other words, the person in deferred status is allowed to stay in the US with the permission of the government. Any unlawful status before deferred action is granted, or after deferred action status ends, will still be unlawful (source). Immigration can review and/or withdraw the deferred action status at any time.

Presence in the US
In order to apply, individuals must be between the ages of 15 to 31 as of June 15, 2012. They must also have lived in the US continuously from June 15th 2007 to the present, and should have been physically present in the US on June 15th, 2012. Presence in the US is also required when filing an application.

Inspection at the border is not required; individuals could have ‘snuck’ over the border or have overstayed their visa.

Proving Presence in the US
It is fine to have left for a few days to Mexico or the Caribbean; this will not interrupt continuous physical presence. Documentation of stay could include medical and school records, or utility bills and tax filings. The evidence is weighed by USCIS using a ‘totality of circumstances’ standard to prove circumstantially that there is the required presence in the US. In addition, presence could be proved by evidence of stay in the US before and after June 15th, 2012.

Stay in school! Be “all that you can be.”
Applicants must be enrolled in elementary, secondary, high school or college to be eligible. A GED from a reputable school is fine, and a college education is great. An honorable discharge from the Coast Guards or Armed Forces is fine too. Anecdotally, there are only a few who will benefit from service in the armed forces. Only US citizens and permanent residents can enroll with a few exceptions from ‘those vital to the national interest’, and even then most would be eligible for naturalization and would not need deferred status.

Beware of Crimes
Applicants with significant criminal history need not apply. Those who are subject to removal orders from an immigration judge should apply for prosecutorial discretion. ICE may administratively close cases for individuals who are eligible for deferred action.
But if an individual has remained in the US after a grant of voluntary departure from a judge, then that person is subject to other immigration penalties, such as fines and bars to filing an immigration application for 10 years.

Being a Member of a Gang
Many law enforcement agencies maintain a ‘gang book’ of tattoos and the meaning of gang symbols. If an applicant has a gang tattoo or has been profiled in a ‘gang book,’ then that may be a problem, especially if the applicant is interviewed and the tattoos are revealed.

Traffic Offenses
Generally, traffic offenses are not considered fatal to an application. However, those with outstanding traffic tickets; unpaid parking tickets; accidents and arrest warrants for traffic violations; and accumulation points on a drivers’ license close to suspension of the license, need to exercise caution.

DWIs and Domestic Violence
Increasingly domestic violence and driving under the influence are being targeted as bars to immigration benefits. DWI convictions are already a bar to returning on a non-immigrant visa to the US. DWIs are a bar to applying, regardless of the sentence imposed.

Using a False Social Security Number
Using a false social security number is a federal crime with applicable jail time and fines. The applicant risks USCIS reporting the false document use to ICE, which could end in removal and federal prosecution. Chances are that false claims of US citizenship status have been made on I-9 forms, and taxes have been filed using the same social security number. In addition to all the federal crimes, there could also be immigration law violations due to the possible allegations of identity theft. Filing an application under these circumstances is very risky.

Entering Using False Documents
While a minor may not have a say on if the parents entered using false documents, USCIS can still share that information with ICE, and those facts could pose a problem for the parents and others who entered using false documents. All applicants are fingerprinted and photographed. There will be a background check on all applicants, and USCIS can share information about false documents and criminal history with ICE.

Arizona Decided Not to Issue Drivers’ Licenses
Gov. Brewer recently signed an executive order not to issue drivers licenses to conferees of deferred status on the basis that they were in unlawful status. Perhaps she did not read the relevant statutes. This statute is also called the Real ID Act.

Improved Security for Drivers’ Licenses and Personal Identification Cards

Pub.L. 109-13, Div. B, Title II, §§ 201 to 207, May 11, 2005, 119 Stat. 311, provided that:
“(2) Special requirements.–
“(A) In general.–To meet the requirements of this section [this note], a State shall comply with the minimum standards of this paragraph.
“(B) Evidence of lawful status.–A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person–
“(i) is a citizen or national of the United States;
“(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
“(iii) has conditional permanent resident status in the United States;
“(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
“(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
“(vi) has a pending application for asylum in the United States;
“(vii) has a pending or approved application for temporary protected status in the United States;
(viii) has approved deferred action status; or
“(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

The Final Word
Deferred status could be used to keep a person in status while they are waiting for a priority date, in the family context. This status could stall unlawful status for a person shy of their 18th birthday. There is also a lot of discussion about filing for advanced parole after obtaining deferred status to exit and re-enter the US, and then, without filing a waiver, to file for immigrant status based on a relative.

The deferred status application is seemingly simple, but could be extremely complicated and lethal for the applicant and family members (see Arrabally, Yerrabelly). Those matters should be discussed with an immigration attorney before applying. Contact Nalini Mahadevan or Diane Metzger at Lowenbaum Partnership, LLC.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather