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

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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.

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H1B Spouses May Be Allowed to Work in the US

DHS has proposed allowing spouses of H1B visa holders in H4 status to work while waiting for their legal permanent residence to be approved.

The idea is to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining time in the US, strengthen entrepreneurship and innovation, and to help the US attract and retain highly-skilled immigrants.

The H1B visa holder must have an approved I-140 form and should have an extension of their H1B status beyond 6 years.

Specifically, the change to the regulation would:

  • Update the regulations to include non-immigrant highly-skilled specialty occupation professionals from Chile and Singapore (H-1B1), and from Australia (E-3), in the list of classes of aliens authorized for employment incident to status with a specific employer;
  • Clarify that H-1B1 and principal E-3 non-immigrants are allowed to work without having to separately apply to DHS for employment authorization; and
  • Allow E-3, H-1B1, and CW-1 non-immigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94 Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.
The proposed rules will be published shortly and will invite comments for a 60 day period.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us
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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.

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USCIS releases FAQ on Immigration Benefits for Same Sex Marriages

USCIS Makes Good on its Promise

After the Defense of Marriage Act (DOMA) was struck down as unconstitutional, USCIS issued a two-point FAQ today on filing for same-sex spouses. Secretary of Homeland Security Janet Napolitano issued the following statement:

“After last week’s decision by the Supreme Court holding that Section 3 of DOMA is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed USCIS to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Now Same-Sex Partners can be Sponsored for Immigration Benefits

US citizens married to a same-sex spouse can now sponsor them for a family-based immigrant visa, both overseas and in the US. They can file the petition for a green card and any accompanying application. Eligibility will be determined according to applicable immigration law, and will not be automatically denied as a result of the same-sex nature of the marriage.

Jurisdictional Issues

If the marriage was celebrated in a state that recognizes same-sex marriages, but domicile in a state where recognition is not legal, some deference will be given to the ‘Full Faith & Credit Clause’ of the US Constitution. This allows the couple to file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the state where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, USCIS may provide further guidance on this question in the future.

Questions Remaining

Can fiance petitions be filed for same-sex couples? Will a couples’ consular processing for these benefits be accorded the same deference by the Department of State? I suspect that issues of marriage fraud will be applied with equal vigor to these cases as well.

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

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