​The DACA program, initiated by former President Obama in 2012, protects certain undocumented individuals who were brought to the United States as children from deportation. DACA protection also allows for a work permits (Employment Authorization Documents) and, in some cases, international travel permits (Advance Parole).
 
Applicants must meet the following requirements to qualify for DACA:
 
• Be under 31 years of age on June 15, 2012;
• Have first come to the US prior to their 16th birthdays;
• Have lived in the US since June 15, 2007;
• Be physically present in the US on June 15, 2012 and on the date of the application
• Not be in lawful immigration status on June 15, 2012;
• Be currently studying or have graduated from high school, earned a GED or have an honorable discharge from the US Armed Forces or the Coast Guard; and
• Have not been convicted of a felony or DUI, or convicted of a “significant misdemeanor” or 3 or more misdemeanors of any kind.
 
After the former administration continued to curtail the program after an unsuccessful attempt to abolish DACA, USCIS will now again accept new DACA applications, renew DACA protection, and grant work permits and Advance Parole travel permits to eligible DACA recipients.

​U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum, effective November 29, 2018, clarifying the requirement that a qualifying organization employ a principal L-1 beneficiary abroad for one continuous year out of the three years before the time of petition filing ("one-year foreign employment requirement"). This clarification is intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.

The policy memo explains that the L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure. The beneficiary must have been employed for at least one year at a qualifying entity abroad when the visa petition is filed.

USCIS issued a new policy memo on unlawful presence on May 10, 2018 related to stays in F, J, or M nonimmigrant status. Unlawful presence is defined as presence in the United States after the expiration of the authorized period of stay which can lead to a 3 or 10 year bar from receiving a visa or new admission into the U.S. after departure from the United States.

​Under current policy there is a distinction between violating visa status and unlawful presence for individuals in F, J, or M status who violate their status because individuals are admitted for “duration of stay” or D/S with not specific end date so that unlawful presence does not accrue unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded. Status violations may include unauthorized employment or participating in activities not authorized by the visa status.

Under the new policy guidance unlawful presence starts accruing as outlined below:

Before August 9, 2018: An individual in F, J, or M nonimmigrant status who has failed to maintain status before August 9, 2018, will start accruing unlawful presence based on that failure as of August 9, 2018, unless he or she already started accruing unlawful presence on the earliest of the following:

• the day after the U.S. Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the person had violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• the day after the person's Form I-94 Arrival/Departure Record expired; or
• the day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered the person excluded, deported, or removed (whether or not the decision was appealed).

On or After August 9, 2018: An F, J, and M nonimmigrant begins accruing unlawful presence due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

• the day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after the person engages in an unauthorized activity;
• the day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
• the day after the person's Form I-94 Arrival/Departure Record expires; or
• the day after an immigration judge or, in certain cases, the BIA, orders the person excluded, deported, or removed (whether or not the decision is appealed).

​

On Sunday, September 24, 2017, President Donald Trump issued a Presidential Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats that indefinitely blocks the entry for certain individuals from eight countries: Iran, Iraq, Libya, Chad, North Korea, Syria, Somalia, and Yemen (Sudan had originally been included).  Please note that this information is subject to change.    
 
The Proclamation applies immediately (effective at 3:30pm EST on September 24, 2017) to those who are covered by the prior travel ban that had been subject to federal court litigation and who lack a credible bona fide relationship to a person or entity in the U.S. This became.  For all other persons – including nationals of Iran, Libya, Syria, Yemen, and Somalia who have a bona fide relationship in the U.S. – AND nationals of Chad, North Korea, and Venezuela, the new ban becomes effective at 12:01 am on October 18, 2017. 
 
Travel Restriction for Nationals of Eight Countries - Chad, Iran, Libya, North Korea, Somalia, Venezuela, Syria, and Yemen


General Conditions

• Only applies to individuals who are (i) outside of the U.S. on the day the travel ban goes into effect, and (ii) who do not have a valid visa on the day MB-4 goes into effect, and (iii) who have not obtained a waiver under Section 3(c) of the Proclamation
• Does NOT apply to:
  • Lawful permanent residents (green card holders);
  • Individuals admitted or paroled into the U.S. on or after the effective date;
  • Those with a document other than a visa that allows them to travel to the U.S., if the document is dated on or after the effective date;
  • Dual-nationals traveling on a passport from a non-designated country;
  • Individuals granted asylum;
  • Refugees already admitted to the U.S.; or
  • Individuals granted withholding of removal, advance parole, or protection under the Convention against Torture
• Until October 18, 2017, Citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the travel ban if they have a “bona fide relationship” with a U.S. person or entity, meaning:
  • A close family member living in the U.S.,
  • An offer of employment in the U.S., and/or
  • An admission to study in the U.S.

 
Previously-Impacted Countries - Restrictions Effective Immediately:

• Iran
  • Effective immediately, immigrant and nonimmigrant entry are suspended for Iranian nationals except for those with a bona fide relationship to a U.S. person or entity OR for those with F, J, or M visas.
  • Those with F, J, or M visas will most likely be subject to “enhanced screening and vetting requirements.”
  • The bona fide relationship exemption ends October 18, 2017.
• Libya
  • Effective immediately, immigrants and nonimmigrants on business (B-1), tourist (B-2), business/tourist (B-1/B-2) visas are suspended except those with a bona fide relationship to the U.S.
  • The bona fide relationship exemption ends October 18, 2017.
• Somalia
  • Effective immediately, immigrant visas are suspended for Somali nationals, except for those with a bona fide relationship to a U.S. person or entity.
  • Non-immigrant visas are permitted, subjected to heightened screening.
  • The bona fide relationship exemption ends October 18, 2017.
• Syria
  • Effective immediately, immigrant and nonimmigrant entry is suspended for Syrian nationals, except for those with a bona fide relationship to a U.S. person or entity.
    The bona fide relationship exemption ends October 18, 2017.
• Sudan
  • Sudan was removed from the list of restricted countries in MB-4.
  • Sudanese visa holders who were impacted by earlier Muslim Bans should now be able to reapply for visa.
  • The bona fide relationship exemption ends October 18, 2017.
• Yemen
  • Effective immediately, all immigrant visas and nonimmigrant business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas are suspended, unless the visa holder has a bona fide relationship to a U.S. person or entity.
  • The bona fide relationship exemption ends October 18, 2017.

 
Newly Impacted Countries

• Chad
  • Effective October 18, 2017, all immigrant visas and with nonimmigrant business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas are suspended from entering the U.S.
• North Korea
  • Effective October 18, 2017, all immigrant and nonimmigrant visa holders are suspended from entering the U.S. 
• Venezuela
  • Effective October 18, 2017, the entry of officials of government agencies of Venezuela involved in screening and vetting procedures and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended. Additionally, nationals of Venezuela who are visa holders are subject to additional measures. 
  • Per Section 3(b)(v) of MB-4, certain Venezuelans traveling on diplomatic visas are not affected by this order.

 Refugee Program

• No changes were made in today’s order that impact refugees.
• There continues to be a 120-day halt of the entire refugee program, which started on March 16, 2017.
• Refugees with a bona fide relationship to a U.S. person or entity are exempt from the ban.
• Currently, a formal assurance from a refugee resettlement agency is insufficient on its own to establish a bona fide relationship.  This matter is under appeal.

The number of refugees to be admitted to the U.S. for fiscal year 2017 is reduced to 50,000.

The Department of Homeland Security (DHS) today published a final rule to improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.
 
Under this final rule, DHS may use its "parole" authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. The new rule is effective July 17, 2017.
 
Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to 30 additional months if they meet certain criteria, in the discretion of DHS. Under this final rule, eligibility may be extended to up to three entrepreneurs per start-up entity, as well as spouses and children. Entrepreneurs granted stays will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.
 
An applicant would need to demonstrate that he or she meets the following criteria to be considered under this rule:
 
• The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
• The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
• The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
 
o Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
o Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
 
Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

On January 15, 2016 the Dept. of Homeland Security finally published a final rule that makes it easier for specialty occupation workers from Australia who are on E-3 visas and workers from Chile and Singapore working in the US on H-1B1 visas .

Under the new final rule, a timely filed request for an extension of status for E-3 and H-1B1 employees will automatically extend  the worker's employment authorization for 240 days while the extension request is pending. Previously, E-3 and H-1B1 employees were almost always required to travel abroad to get renewals of their visas at a U.S. consulate in order to extend their work authorization. Under the new rule those workers may remain in the US with work authorization.   

These change of policy becomes effective February 16, 2016. 

The U.S. Department of Homeland Security Canada and Mexico entered in an agreement to expand "trusted traveler" programs between the countries. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.

As part of the agreement, Mexican nationals who are members of Mexico's Viajero Confiable program will be able to apply for the U.S.-Canada NEXUS trusted traveler program, making them eligible for expedited screening benefits upon arrival at international airports in the U.S. States and Canada. The arrangement will also allow Canadian citizens who are members of NEXUS to apply for Viajero Confiable, making them eligible for expedited screening benefits upon arrival at select international airports in Mexico. U.S. citizens are currently eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection, Public Safety Canada, and Mexico's National Institute of Migration. Eligible travelers will be able to apply for each program beginning in 2016. Stay tuned for details.

The U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) announced yesterday a change in filing procedures for those with established priority dates, waiting for their green cards. DOS posts the Visa Bulletin once a month that shows the cut-off dates for the availability of immigrant visas (green cards). In the past foreign nationals in line for a green card had to wait until an immigrant visa became available to them - their priority became current - before they could file an application for adjustment of status, leading to their green cards.

Starting October 2015 DOL will publish two Visa Bulletin Charts each month, one chart announcing the cut-off date when an adjustment application can be filed and a separate second chart announcing cut-off dates for the approval of applications. This means that an immigrant visa must not be available anymore before applicants can submit their adjustment applications.

This significant change in filing procedures allows applicants seek benefits that come with filing an adjustment application (e.g. the ability to seek independent employment authorization) much sooner than before.

Please contact my office if you are in the United States and have an employer or family member who already petitioned you for a green card but you are not sure when you will be able to receive your green card.

Please feel free to contact my office if you are not certain whether those changes in requirements for maintaining H-1B worker status apply to your workforce or need assistance in amending exiting H-1B approvals.