First, plan ahead and make sure that any cap-subject petitions, such as petitions for new hires that are currently in F-1 student visa status, are ready to
be filed in the first week of April.
If the annual numerical limit or “H-1B cap” runs out in the first week, as they are
expected to do, then you may not be able to hire some of those workers this year.
One strategy to consider is actively recruiting in countries with which the US has a treaty that offers a special work visa status to nationals or citizens
of that country, which are likely to remain available even when the allotment of new H-1Bs is used up. Nationality-based visa categories that cover the
same broad range of professional specialty occupations as the H-1B category include the E-3 for nationals of Australia, and the H-1B1 for nationals of
Chile and Singapore. Both of these visa classifications require a posting at the work site and a Labor Condition Application filed electronically with the
Department of Labor, but once that LCA is approved, the foreign worker may make a visa appointment and take their educational credentials, the signed and
certified LCA, valid passport and a letter from the US employer to a visa interview at the US Embassy – there is no petition to USCIS for these categories.
However, unlike the H-1B, these visas require continued non-immigrant intent, and are only granted for two years at a time.
Even simpler, but far more restrictive in scope, is the TN-1 visa category for citizens of Canada and Mexico: the applicant is only required to appear for
inspection and admission at a US Port of Entry or Pre-Flight Inspection with a valid passport, original educational credentials related to the job –
required education varies by job title - and a job offer letter from the US employer, but for admission as a TN-1 the offered position must fit exactly
into one of the 64 enumerated job titles listed in the NAFTA Appendix.
Once those options are exhausted, the company and foreign worker may want to review eligibility case-by-case for more restrictive visa types, such as the E
and L visas, and the H-3 and J-1 for trainees, but nothing else has the scope and flexibility to cover a vast array of professional jobs as the H-1B.
While you were busy trying to get those H-1B cap cases ready for filing, U.S. Customs & Border Protection ("CBP") released a new Interim Final Rule, and scheduled a Stakeholder Engagement teleconference about the automation of Form I-94, Entry-Departure Card, and shift to an electronic records system, with less than 3 hours advance notice. I got the e-mail announcing the stakeholder call at 12:15 on March 27th, for a 3:00pm call on the same day.
On that Stakeholder Engagement call, I asked if CBP was planning to devote any of the much-touted savings from this initiative to expand the hours or staffing for Deferred Inspections, where travelers must go after admission to get an erroneous record corrected. The answer was "None." They expect this shift to an all-electronic I-94 to work perfectly, and do not anticipate any spike in errors by Inspections Officers. How optimistic. Another caller, perhaps recalling what was once a 6 to 9 week time frame for sharing of nonimmigrants' entry data with the Social Security Administration, asked how fast the CBP database would be updated with travelers electronic I-94 data. CBP claimed that the electronic records would be uploaded and available online "immediately." Again, this seems optimistic.
CBP certainly realizes that this week just prior to April 1st is a time period when most US employers of foreign nationals - and most immigration lawyers - are too busy to participate in a Stakeholder Engagement call or to comment on an Interim Final Rule before it becomes final. Press releases and other public pronouncements have been made anticipating that all the H-1B visa numbers for the coming fiscal year will be exhausted in the first week of April, so anyone involved in the hiring or employment of foreign nationals under temporary visas is preoccupied with the H-1B cap right now. For those of you who have the time, please file comments now! The comment period ends on April 26, 2013.
The initiative to get rid of paper I-94s is intended to streamline and modernize the admission of all nonimmigrants. Travelers will not complete the form on paper on the airplane or at the port of entry, and will not be provided with any paper entry document defining their nonimmigrant visa status and authorized period of stay. CBP is expanding the definition of an I-94 to include an electronic record, and expanding the contents of an entry stamp in the passport, but that entry stamp will not meet the requirements of USCIS, Social Security, state motor vehicle departments, and many other agencies which require a copy of an I-94 entry document bearing certain data and an identifying eleven-digit number, so all of those types of applications will require the traveler to go to a CBP website and print out a hard copy of the electronic I-94 record. So, there will still be paper, just not a piece of paper that has to be produced or retained by CBP.
CBP Inspections Officers will issue an annotated admission stamp in the passport, showing the date of entry, port of entry, class of admission, and expiration date of the authorized stay, and they will create an electronic I-94 record in the database containing the full data, which includes:
First (given) Name
Country of Citizenship
Passport issuance date
Passport expiration date
Airline & Flight Number
Country of Residence
Country Where Boarded
City Where Visa Was Issued
Date Visa Was Issued
Address While in US
Telephone Number in US
After admission, but not while still in the secure Inspections area, travelers can go to the website, www.cbp.gov/I94, to view and print out a copy of their electronic I-94 record, which will still be needed to obtain a US Social Security Number, to show to an employer to begin or change authorized employment under a nonimmigrant work visa, to obtain or renew a driver's license, or to apply to USCIS for any extension or change of status. When using the CBP website, travelers will have to enter some of the above data , including their Family Name, First Given Name, Passport Number, Date of Entry & Class of Admission to gain access to their I-94 records, so people with complex name issues or who were admitted in a category other than the one they thought they were entering in may have difficulty accessing the electronic record. Time will tell. Records of previous entries for up to two years prior to the most recent admission will be visible on the website.
CBP has already implemented this electronic-only process for the I-94W, the form used for admission of visitors eligible to come to the United States without a visa under the Visa Waiver Program. They are basing their projections for success of a broader rollout on the successful implementation of electronic entry records for this narrow group of travelers, visitors who can only be admitted for a period of 90 days. The electronic record has not posed serious problems for that uniform class of entrants, all of whom are granted the same class of admission and are admitted to the United States for the same length of time.
My experience to date is that even when travelers are issued a paper I-94, they may not notice an error immediately, or an officer may take issue with the client's knowledge and insist on admitting them for an incorrect length of time or in the wrong status. All travelers seeking admission in any nonimmigrant visa status will have to be extremely vigilant.
May an applicant travel abroad after August 15, 2012 but before applying for Deferred Action, or after filing but before approval?
No, that will result in denial of the DACA application.
Will a person granted Deferred Action be allowed to travel abroad?
Not automatically. Those who are granted Deferred Action will have to apply for an Advance Parole travel document.
It is strongly advisable to consult an attorney before filing for permission to travel. Most applicants who qualify for Deferred Action will have accrued long periods of unlawful presence in the United States, so travel abroad may trigger the 3-year, 10-year or permanent bars to readmission, which could cut off eligibility for all future forms of relief or more permanent immigration benefits, even if the person is temporarily allowed back in to the United States on the basis of an Advance Parole travel document.
The latest USCIS FAQ notes that even if you are granted Deferred Action and an Advance Parole travel document, if you have been in deportation or removal proceedings in court before the Executive Office of Immigration Review, before you travel abroad you should seek to reopen the case and have the immigration proceedings terminated or administratively closed. Do not leave the country before termination or administrative closure is granted.
Social Security Number:
USCIS has clarified that where Item 9 on the Form I-765 asks for a social security number, the only number DACA applicants should enter in that space is a genuine Social Security Number officially issued to you, not a made-up one or one that belongs to someone else.
Documenting Continuous Residence:
Do you need to provide documents establishing physical presence & continuous residence in the United States for every month since June 15, 2007?
No, but you need at least one document every 11 months or so, and some evidence within a month or two of June 15, 2012.
For DACA applicants who graduated from high school or college several years ago, some or all of the five-year period between June 15, 2007 and June 15, 2012 will not be covered by school transcripts, and may be difficult to document with medical or work records. You may use other circumstantial evidence - I am one of many immigration lawyers who recommend printing screenshots from your Facebook timeline, particularly where you are tagged in photos at some identified location in the United States.
Can providing your work records as part of the evidence of continuous residence in a DACA application result in enforcement actions against your past or present employers?
This information will not be shared with ICE for civil violations under INA 274A, but it will be shared for criminal enforcement actions if there is evidence of “egregious violations of criminal statutes or widespread abuses.”
What does that mean in plain English? We don’t know yet, but evidence of a consistent pattern of hiring people who lack work authorization can result in criminal penalties, so if you know of many other employees at your workplace who are not authorized to work, the safe course of action is not to use evidence of that job in a DACA application.
1. Criminal history:
Get original Certificates of Disposition for every arrest or summons you have ever had, whether it was an ACD, dismissed, pardoned, youthful offender, juvenile delinquency, open beverage, or fare-beating on public transit. Tell the attorney even if it is a record you cannot obtain, such as a sealed or expunged conviction. Past offenses that do not count in other settings can have severe, permanent consequences under immigration laws. Whatever it was, make sure you have the Certificate of Disposition in hand so that when you meet with a lawyer, he or she can give you a realistic idea of what may flow from that event, and whether it may be a bar to Deferred Action.
No attorney can counsel you on the effects of conduct they don’t know about, so be honest. Do not guess! Be aware that once you have filed a DACA application, everything in it is known to USCIS, and may be revealed to other agencies as well if they decide that you are a “high enforcement priority.” All applicants have to give biometrics – digital fingerprinting and a digital photograph. Fingerprints will be forwarded to a wide array of law enforcement agencies for background checks (not just within the U.S.), and the photo alone is a reason not to file if you have visible gang-related tattoos.
2. Alien registration number (A#).
If you have ever been in immigration court, or held resident status and then lost it, or had an Employment Authorization card, or if anyone ever filed papers on your behalf, then you may already have an A#. If any of these apply to you, but you do NOT know your A# or even whether you have one, it may be worth the wait to file a Freedom of Information Act request to find out if you have one. If you know your A#, call the immigration court hotline (1-800-898-7180) with a pen & paper handy, and enter the A# to see if you are in the system already. If it says there is no record, then you have not been ordered removed, nor had proceedings commenced in your absence.* If there have been any immigration court proceedings against you, then the automated system will spell out your name and give other details. Know this before filing for DACA, as you must disclose it on the forms.
*The A# that appears on a work authorization card begins with a "1" and will not show up in the court system.
3. Employment & use of false SSN:
If you have ever worked without authorization using a false Social Security Number, do not file for DACA relief now, even though all the FAQs and document checklists say to include your employment records. The first reason is because using someone else’s SSN could be grounds for denial of your application and issuance of a Notice to Appear, which begins removal proceedings. The second and more serious reason is, it may be treated as a felony false claim to U.S. citizenship, and a bar to future immigration benefits such as residence or citizenship. If you have used an SSN for employment, but you are not sure whether it was a made-up number or if it used to be somebody’s real one, err on the side of caution. Don’t file now, wait to see how these applicants are treated by USCIS.
Also, if you have not had work authorization, avoid disclosing the names of present or past employers. USCIS has made limited statements that filing a DACA application will not result in enforcement actions against family members of applicants, but there are no such protections for employers who have hired unauthorized workers. Naming employers could subject them to fines or audits.
4. Entry Without Inspection:
If you did not cross the border on foot, and are not sure how to characterize your entry into the United States, consult the family member who knows the most facts about how you came into the US, and then consult an immigration attorney or legal service provider to help you complete the DACA forms. For instance, if you were driven across the border in a vehicle, it makes a big difference whether you were concealed in the back or sitting on the seat where you could see out the windows.
5. Travel and the Permanent Bars:
If you have lived in the U.S. unlawfully for more than a year, and then left voluntarily, and re-entered the United States illegally, OR if you were previously deported or removed, and then you re-entered the United States illegally, you are subject to a permanent bar, and will be ineligible for residence or citizenship. If one of the permanent bars applies to you, alerting USCIS to your presence through filing a DACA application would be unwise. However, "unlawful presence" is complex, especially for people who entered the U.S. lawfully as students or exchange visitors, so this analysis may require a lawyer.
These are just a few areas in which “forewarned is forearmed.” Deferred Action for Childhood Arrivals presents a welcome opportunity and offers a temporary relief from removal for many, but it also poses significant risks. Know the risks to avoid placing yourself and others in harm’s way.
*Like all publications on Deferred Action for Childhood Arrivals, this is a work in progress and may be updated from time to time.
Senator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhod Arrivals, "Do Not Hire a Lawyer." Yet Sen. Durbin said those those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help:
These elected representatives perpetuate a dangerous source of confusion between unscrupulous ‘notarios’ who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.
An experienced immigration lawyer who has carefully reviewed the applicant’s background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin’s patently false claim that “Virtually everyone will be able to go through this process without a lawyer,” is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right
on the first try, or else they face a discretionary denial that is final and cannot be reviewed.
Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred
Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable
immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.
Karin Wolman is admitted to the bar in the State of New York. Her practice is limited to U.S. Immigration & Nationality law.
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