The Plan for More Visas for STEM Grads

Earlier this September, Sen. Charles Schumer introduced the Benefits to Research and American Innovation through Nationality Statutes (BRAINS) Act to the Senate. BRAINS proposes to make 55,000 more green cards available for STEM (Science, Technology, Engineering and Mathematics) graduates, over a two-year period.

STEM graduates are foreign-born students who have obtained graduate degrees from American universities in science, technology, engineering or math. In order to receive a green card, the graduate must have a US job offer in one of these four fields.

Texas Rep. Lamar Smith also proposed a similar bill to the House. Unlike Schumer’s BRAINS Act, Smith’s bill recommends an elimination of diversity visas, the US’s lottery program for receiving a US Permanent Resident Card. The diversity visa program makes 55,000 visas available to people with certain eligibilities, and who have emigrated from countries with low US immigration rates.

The House bill did not pass. Democrats were against Smith’s bill, which they believe will reduce legal immigration. Both parties want to make more green cards available for STEM graduates, but have not agreed on a plan of action. Schumer’s bill will go through the Senate before November elections.

Microsoft’s Proposal

Microsoft is also lobbying Congress to boost the number of H1b visas that companies use by 20,000. Currently, Microsoft has 6,000 job openings, more than half of which necessitate expertise in the fields of technology and science. However, there is a gap between available jobs and job seekers’ ability levels – Microsoft’s petition targets this issue.

In Microsoft’s petition, the company recommends increasing H1B visa fees to $10,000 in order to create a STEM adaptation of the Race to the Top federal grant program that stimulates school education improvements. The program would be called Race to the Future, which would pay to hire STEM teachers and include computer science classes in schools.

Microsoft proposes giving STEM employees access to 20,000 green cards, an action that would begin to undertake the large build up of green cards, while also allowing skilled workers to remain in the US and contribute to our economy.

The problem with Microsoft’s proposal is that the scheme shuts out smaller employers who already pay substantial amounts in immigration and other fees to increase their workforce by sponsoring H1B visa holders. The scheme will create a two tier system of petitioners for visas.

Effect on the US Economy

Call and write your Senator about supporting increased visas for STEM graduates so that we keep their valuable knowledge in the US and prevent reverse ‘brain drain’. These graduates create jobs in other ‘support’ fields, promote innovation and contribute to the tax base.

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.

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Slow Pace of H1B Adjudications Affects US Businesses & Economy

In mid-September, we had to inform many of our clients, who had filed H1B visas for their employees, that we had not received a response from USCIS; and judging from the published backlogs about these filings (over as many as 17,000 H1B visas), it isn’t likely that we will receive any decisions until the end of the year. Reluctantly, we advised our clients to pay the additional premium processing fee for urgent requirements.

Business and Economic Losses

If the losses from the slow adjudication process are added up, losses for American businesses are also adding up. First, there are the current projects that American businesses have with American client companies, which run the gamut from hospitals, car rental companies and credit card processors; financial and banking companies; retail, hotel and restaurant chains; IBM and Microsoft; and universities. In this day and age, everything is online and mobile. Current contracts are either delayed or postponed, and taxes paid by visa holders to the US and State government coffers are not collected. If delays continue, US businesses are likely to send these operations overseas, enriching foreign tax coffers.

Second, we face a brain drain from American universities. The difficulty for foreign students obtaining a timely US visa forces these students, who have gathered knowledge at our universities, to migrate to Australia, Canada, UK and their home countries where their US-gained knowledge is welcomed. This situation, again, is a loss of millions of dollars to the US economy.

Foreign Students in American Universities

This past year, enrollment of temporary residents in graduate school surged by 7.3%. Temporary residents made up 16.9% of American graduate school enrollment, a figure only growing as foreign governments pay for their citizens’ American education, specifically in technical fields. Foreign students made up a sizable percentage of technical areas: 45.5% of students in US engineering graduate programs, and 42.4% of students in US mathematics and computer science graduate programs, are foreign students. (NYTimes, “Enrollment Drops Again in Graduate Programs”, 9/28/2012).

Recently, some beneficiaries of H1B visas have reported receiving tremendously shortened periods of visa approvals from the consulates, despite being approved for the full period of H1B visa entitlement from USCIS. This re-adjudication contributes to the unfriendly and unwelcoming atmosphere facing H1B applicants and their sponsoring companies.

The tide of demand for US visas ebbs and flows: often, the federal government is not able to support US companies’ efforts to attract the best and brightest to work for us.The wave of hostility generated by our actions should not arrive at a tipping point. We could very well lose what makes up our American identity, and our ability to produce multi-million dollar products like Facebook, iPhones and Google.

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.

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Justice Department Finds Practices of Discriminatory Policing in North Carolina

The Justice Department found that the Alamance County Sheriff’s Office (ACSO) in North Carolina operates in a practice of discriminatory policing, specifically targeting Latinos.

Policing Practices in Violation of the Constitution and Federal Law

By using methods that discriminate against Latinos, ACSO has violated the Equal Protection Clause of the Fourteenth Amendment; the Fourth Amendment; the Violent Crime Control and Law Enforcement Act; and Title VI. ACSO’s modes of discriminatory policing are as follows:

  • ACSO deputies target Latino drivers for traffic stops;
  • A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers;
  • ACSO deputies routinely locate checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities;
  • ACSO practices at vehicle checkpoints often vary based on a driver’s ethnicity.   Deputies insist on examining identification of Latino drivers, while allowing drivers of other ethnicities to pass through without showing identification;
  • ACSO deputies arrest Latinos for minor traffic violations, while issuing citations or warnings to non-Latinos for the same violations;
  • ACSO uses jail booking and detention practices, including practices related to immigration status checks, that discriminate against Latinos;
  • The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with discriminatory traffic stops and other enforcement activities;
  • The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and
  • ACSO engages in substandard reporting and monitoring practices that mask its discriminatory conduct. (source)

Policing Reforms

The Justice Department’s inquiry allowed for a thorough investigation, comprising of a detailed analysis of ACSO policies, procedures, training materials and records on traffic stops, arrests, citations, vehicle checkpoints and other archived evidence. For the inquiry, the Justice Department also interviewed former ACSO employees and Alamance County residents.

In order to reform ACSO’s discriminatory policing, the police department must accept structural and fundamental change by creating and employing new policies, procedures, and training so as to promote constitutional policing. ACSO must also be held accountable for their actions, and guarantee the Justice Department that any unlawful bias has been eradicated. The Justice Department will request a court-enforced, written document that will help to solve ACSO’s violations.

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.

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New PERM Issues for Employers – Interviewing US applicants

Consider these facts: ABC company has a valuable employee for whom they have filed a PERM application with the Department of Labor. The job requirements are a Master’s degree with a very specific set of skills.

Select International Inc.

In the matter of Select International, Inc., a decision issued by Board of Alien Labor Certification Appeals (BALCA) on 19 September 2012, the board held that if a US worker submits a broad resume in response to an advertisement for a job opening, the employer must not only review the application, but must also provide in-depth reasoning as to why the US worker does not meet the minimum experience requirements for the job advertised.

Select International advertised a position for an industrial/organizational psychologist. The company stated that they would accept any suitable combination of experience, training and education (Kellogg language). Resumes from three potentially qualified applicants were rejected for not meeting the employer’s minimum requirements. Select International did not interview the applicants or send letters of rejection. The employer in particular rejected Avi Avigdor, a US worker who applied for the job opportunity. BALCA denied labor certification because no further consideration was given to his resume beyond a review.

To conduct a recruitment in good faith, an employer “must take steps to ensure that it has lawful job related reasons for rejecting US applicants, and not stop short of fully investigating an applicants qualifications” (E. Tenn. State Univ.). No US worker should be rejected for lacking the skills necessary to perform the duties involved if they are capable of acquiring the skills during a reasonable period of job training, and there is no lawful job-related reason for rejecting the US worker.

Select International stated that the job opportunity was for a person with a masters degree in industrial/organizational psychology and required 36 months of experience, and that coursework must include personnel selection; employment law; legal issues related thereto; candidate testing and selection; job analysis; development of job candidate selection tools; and advanced statistical analysis using statistical methodologies. Select International also state in Form 9089 that it would accept any suitable combination of education, training or experience.

The job required development of new assessment tools and techniques; in-depth statistical analysis; detailed reports; and recommendations. Select International stated that Mr. Avigdor did not meet minimum experience requirements because his 47 months of experience was not related to the job duties to be performed in the  position offered. The company also noted that none of the positions held by Mr. Avigdor involved skills listed on the PERM application, nor did he have the experience to perform the core duties required by the job. Therefore, he did not have the combination of educational training and experience to qualify for the position.

The PERM certification was denied on the basis that Mr. Avigdor’s credentials were not investigated fully.

What is an employer to do?

Given the facts of this case, perhaps the best course of action for an employer is to interview all suitable applicants and to document job-related reasons for rejection. Kellogg language should be used sparingly on PERM applications, unless employers are willing to accept any suitable combination of education, training and experience from US job applicants with broad resumes.

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.

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Health Law Limitations for Young Immigrants

In June, President Obama was pleased to announce the Deferred Action for Childhood Arrivals (DACA) Memorandum – but with some ineligibilities. The Obama Administration has ruled that young immigrants, who can apply to DACA, will not qualify for health insurance under Obama’s health care renovations.

Young Immigrants Ineligible for Health Law

Normally, immigrants would fall under the definition of “lawfully present” residents, which qualifies them for government subsidies to purchase private insurance, a major facet of the new health care law. However in August, the administration declared that young immigrants will be barred from the definition of “lawfully present”.

Obama’s administration also announced that young immigrants will not be eligible for Medicaid or the Children’s Health Insurance Program – the areas of immigration and health care coverage are separate issues.

Immigration and Health Laws are Unrelated

The administration further justified their decision by stating that the immigration initiative is “an exercise of prosecutorial discretion,” that has been enacted so law enforcement officers can differentiate between immigrants who will cause a threat to national security or public safety.

According to the new federal health law, only citizens and “lawfully present” low-income immigrants are eligible for insurance subsidies. This group still includes green card holders and people granted asylum.

Immigrants who are employed, and qualify for DACA, will still be able to receive health insurance from employers; however, those who are not covered by employers will struggle to gain coverage.

(NYTimes, “Limits Placed on Immigrants in Health Law”, 18 Sept 2012)

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.

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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.

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What An Employer Should Do Now that H-1B Visas are Over

As of December 1, 2011, the US Consulate General in Chennai will process all Blanket L Visas. The New Delhi US Embassy and Mumbai, Kolkata and Hyderabad US Consulates no longer process petitions for Blanket L Visas. Visas for dependent spouse and children (L-2) and individual visas (L-1A and L-1B) can still be processed at the Chennai, Hyderabad, Kolkata, Mumbai and New Delhi posts.

What is a Blanket L Visa?

A Blanket L visa is available to employees whose employers hold such a designation to file L visas under a Blanket L permit, issued by the Department of State. To be eligible, an employer must be in business in the US for more than one year; have three or more domestic or foreign, subsidiaries or affiliates; and be engaged in commercial trade or services. The employer must also have annual US sales of $25 million; a US workforce of 1,000 employees; or the employer should have received at least 10 L petitions in the last 12 months. An employer may be in danger of losing their Blanket L permit if they file fewer than 10 petitions in the prior year. Only commercial employers can be approved for a Blanket L permit; non-profits are not eligible.

Blanket L visas are for employees who have, in the three past years, been employed abroad for one year and will continue to be employed by the same company in the US. Employees can either be petitioned individually or under a blanket, and must meet the criteria of a “specialized knowledge” professional, executive or manager.

Three Major Issues

1. Will the L visa employee work at client sites?

If your answer is yes, then you must establish an employer-employee relationship during the time the employee is working at a third party worksite on behalf of the petitioner (employer). If the employee is to work in the office of the L visa employer, then that fact should be made very clear both in the documentation and at the interview. Consular officers are very concerned about L visas being misused by employers and being used when H-1B visas are no longer available.

At the US Consulate, the employee is often asked to go up to a window to answer questions. The interview is about 5 minutes, and very often consular officers may not have the time to read the entire petition. If the employee is to work on a particular project at a site other than the US employer’s offices, that fact should also be presented both at the interview and substantiated in the application.

L visa employees must be ready to answer any and all questions, and justify the reason for working at a end-client’s office instead of working at the L visa employer’s office.

2. Is the salary of an ordinary programmer or of a specialist in an L-1B visa category?

Salary earnings in India are indicative of the level of services an employee provides for his/her company; there is certainly a difference between IT workers who complete general services and those who have specialized knowledge. If the applicant is earning a sizeable salary, it is important to state the applicant’s salary in the support letter; salaries are often indicative of a specialist eligible for an L-1B visa instead of a programmer more suited to H-1B visa category status.

It is these distinctions that have caused a rise in the denial rate, 27%, of all filed L visa applications.

3. Is the applicant’s work in India not indicative of a specialized job?

The consular officers will most likely deduce that the applicant has no specialized knowledge if the applicant’s work in India is based in general services. This can include testing; enterprise recourse planning maintenance; or execution of Oracle, Microsoft or SAP software.

Experience

L-1B visa holders are supposed to be specialists; if the applicant has a three-year degree and one year of experience, then the consular officer is not likely to consider the applicant experienced enough to warrant an L-1B visa approval. The standard by which L visa applications are approved is “clearly approvable”. Hence, the burden of proving L visa eligibility lies with the employer. If the L visa has been approved by USCIS, the US Consulate may grant the L visa unless special circumstances exist, or the consulate determines more evidence is required.

We live in a climate where no USCIS application is sacrosanct, and where the Department of State often re-adjudicates USCIS approvals.

B-1 In Lieu of H-1B

The B-1 In Lieu of H-1B visa is a hybrid visa, a cross between a business visa and an employment visa in the US. The employee with H-1B visa qualifications comes to the US instead on a business visa (B-1), applies for the visa at the consulate and declares intent at the border. This employee cannot receive any remuneration in the US other than an expense allowance.

However, this visa is under attack. Employers should demonstrate that there are unexpected circumstances and an urgent need for the employee to obtain a B-1 Visa In Lieu of an H-1B. The controversy arises over the extent to which the B-1 visa is used or misused in lieu of an H-1B. Even if the consulate grants this visa, it is likely that the visa holder may encounter difficulty at the US port of entry.

True need for the visa must be well-planned to demonstrate the benefit of the short-term visit to the foreign employer, as opposed to the US client.

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.

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How Employers can Reduce Audit in PERM Filings for Roving, Telecommuting and Traveling Employees

The tech industry is facing many challenges today, notably denials from the Department of Labor (DOL) based on very little understanding of how the industry works. Most large employers in the sector are not the ‘job shops’ that USCIS fears; and DOL is convinced the tech industry is engaged in fraud of some kind, or is somehow interested in recruiting foreign workers when willing and able US workers are available!

US employers in this sector pay a premium in governmental application costs and legal fees because they are unable to find a suitable worker in the advertised job. In fact, most recruiters I speak to would prefer to hire locally rather than internationally.

Both USCIS and DOL target employers who file for an employee with job duties involving roving, telecommuting or travelling; USCIS has recently issued guidance on roving employees placed at client worksites, in the H-1b visa context. DOL continues to audit and issue denials for roving, travelling or telecommuting positions. Current audits require employers to define employees’ positions as either national or regional roving without a residential requirement, or roving with a residential requirement. Additionally, DOL has expressed concern that these jobs may not be bona fide opportunities for the positions advertised at the intended place of hire; and, in the case of roving employees with no fixed ‘intended area of employment’, the location chosen to advertise the job opportunity and the wage may be artificial and misrepresented by the employer.

Where to Advertise for Roving Employees

In the past few years, DOL has audited and denied applications where the residential address of the employee does not match the location of employment. DOL decided that this position was for a telecommuting employee, a benefit the employer did not disclose in the advertisement for the position and therefore not disclosed to an eligible US applicant, but offered to the beneficiary as a benefit. A PERM application can also be denied based on job advertisements in the incorrect Metropolitan Statistical Area (MSA). The employer advertised the job where the client worksites were located, instead of the MSA where the employer’s headquarters was located.

In Paradigm Infotech, Inc (BALCA, June, 2007), the employer advertised the roving position in Erie, Pennsylvania where the client worksite was located, instead of the company headquarters. To reach the PERM denial, DOL conducted research on the employer. DOL ascertained that the employer’s headquarters was in Columbia, Maryland as confirmed by employer’s tax records and DOL interviews with employees. DOL also performed site visits to the Erie location of the employer’s branch to ascertain that sufficient office space existed, and parking space was available for the number of employees who were supposed to work there, in accordance with employer’s documentation filed with Board of Alien Labor Certification Appeals (BALCA). Based on short term contracts with client companies, inadequate office space at Erie, and payroll records that confirmed that employees worked at different locations, PERM labor certification was denied by DOL and the denial was upheld by BALCA. BALCA reasoned that the employer needed to test the labor market at the place where the alien was working, and since this was a roving employee and that geographical area of the labor market was unknown, the job market to be tested for PERM purposes was located at the employer’s headquarters.

Following Paradigm, employers with large business units away from company headquarters should also advertise at headquarters location. This is confirmed by the Barbara Farmers Memo: ETA Field Memorandum 48-94§10, published by DOL in 1994 and still followed by DOL.

Prevailing Wage Issues

Employers should also file to obtain prevailing wage determinations from DOL in all the intended areas of potential work sites for the foreign worker. Future locations can be determined from itineraries and statement of work signed with the end client.

Employers with International Locations

In August 2012, BALCA upheld that advertisements in the PERM context also include ‘travel requirements’. The employer in M-IL.L.C., filed a PERM for an employee who was required to travel to international locations as part of the job requirement. This fact was listed on the PERM application Form 9089 and the prevailing wage determination, but not listed on the advertisement for the job opening. 20 C.F.R. § 656.17(f)(4) states, “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The employer’s advertisements did not include the travel requirement. Denial was based on the fact that travel requirements listed on the PERM application and the prevailing wage determination was not matched by the advertisement for the position.

Conclusion

While we cannot with certainty expect every PERM filing with travel requirements to be audited by DOL, we must certainly file like that is a very real possibility. Any filing with the DOL is subject to audit, even if in the past those very same requirements were certified by DOL. The safest course in our uncertain climate is to match information on the prevailing wage with the PERM form, and the employer’s advertisement requirements for the position advertised.

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.

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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.

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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.

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