AICUM Spring Symposium at The College Of The Holy Cross March 23, 2017 Iandoli Desai & Cronin, PC 38 Third Avenue, Suite 100 Boston, Massachusetts
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1 AICUM Spring Symposium at The College Of The Holy Cross March 23, 2017 Iandoli Desai & Cronin, PC 38 Third Avenue, Suite 100 Boston, Massachusetts Richard L. Iandoli, Esq. Boston Office: Worcester Office:
2 Overview of U.S. Immigration Categories Pathways to Permanent Residency Nonimmigrant Basics and Work Visas STEM OPT extended TPS Temporary Protected Status DACA Deferred Action for Childhood Arrivals H-1b Update: Quotas and Exemptions Executive Order Updates: Travel Bans, Border, and Interior Enforcement Sanctuary Movements
3 US CITIZENS By Birth law of the soil / law of blood By Naturalization FOREIGN NATIONALS Immigrants: Lawful Permanent Residents Immigrants or Green Card Holders Nonimmigrants: Persons Permitted in US for Temporary Stay Refugees/Asylees/TPS DACA Persons present without lawful status
4 Family Based Employment Based Diversity Lottery Investment Asylum/Refugee Cancellation of Removal Registry Others: VIOLENCE AGAINST WOMEN ACT (VAWA), etc.
5 EB-1(a) Persons of Extraordinary Ability EB-1(b) Outstanding Professors & Researchers EB-1(c) International Managers & Executives EB-2 Masters Degree/Exceptional Ability EB-3 Bachelors Degree/Skilled Workers
6 Sponsored by U.S. Citizen: Parent* Spouse* Unmarried minor child* Son or Daughter married or unmarried Sister or Brother Sponsored by Lawful Permanent Resident Spouse Unmarried son or daughter Many Family-Based Immigrant Categories are subject to category & country quotas backlogs See Visa Bulletin *Immediate Relatives not subject to a quota & often can adjust status to permanent residence inside the U.S. USC Sponsor of parent or sibling must be 21 yrs old or older Child includes children adopted before 16 yrs of age and stepchildren where the step-relationship was created before 18 yrs of age. Spouse includes same-sex married persons & trans persons of both the same and opposite sex
7 U.S. Department of State (DOS) issues visas while U.S. Department of Homeland Security (DHS) controls actual admission & stay in U.S. Admission to U.S. limited to one appropriate category at a time Form I-94 created by Customs & Border Protection (CBP) at admission. Notes date of admission, category, and length of authorized stay TIP: Print I-94 from CBP website after each entry to confirm proper category and time granted May change categories in U.S. via U.S. Citizenship & Immigration Services (USCIS) if in valid status at time of application limitations apply May extend authorized stay in U.S. via U.S. Citizenship & Immigration Services (USCIS) if in valid status at time of application limitations apply Approval of change or extension request is noted with creation of an updated I-94 International travel after approval of change or extension may require new DOS issued visa in order to re-enter
8 B-1: Visitors for business (honoraria) F-1: Students OPT & STEM OPT E-3: Professionals from Australia H-1B: Professional workers H-1B1: Professionals from Chile and Singapore J-1: Exchange visitors TN: Canadian and Mexican Professionals O-1: Persons of extraordinary ability R-1: Religious workers OPT: Optional Practical Training STEM OPT: STEM Optional Practical Training
9 STEM OPT Re-instated via new APA Regulatory process Expanded to 24 months Must be employment with E-Verify employer More majors listed as STEM Under threat in Congress and Administration
10 Some of the current employment-authorized TPS countries with expiration dates: El Salvador March 9, 2018 Haiti July 22, 2017 Honduras January 5, 2018 Nepal June 24, 2018 Nicaragua January 5, 2018 Somalia September 17, 2017 South Sudan November 2, 2017 Sudan November 2, 2017 Syria March 31, 2018 Yemen September 3, 2018
11 Out of status on June 15, 2012 Came to U.S. when under 16 Were under the age of 31 on June 15, 2012 Born after June 15, 1981 Be over 15 years old now In U.S. since June 15, 2007 In high school or graduated from high school or have G.E.D. or honorable discharge from U.S. military service Enrollment is still open. Consult an immigration attorney before enrolling.
12 Lawful presence but not lawful status Removal/Deportation Deferred Not a path to green card or citizenship Documentation provided no longer undocumented Employment Authorization available Domestic travel unrestricted International Travel permitted if granted Advance Parole (travel permission) by USCIS before departure and only for enumerated purposes. Travel is not recommended until Administration & Congress reveal their intentions. Also, should never travel if there is an outstanding order of removal (deportation). Danger of self-deportation In-state tuition in most states Social Security Number available Driver s License in most states Eligibility for Adjustment of Status to permanent residence in some cases and after travel on Advance Parole Best for persons in DACA in most cases to apply to extend now. for
13 DACA is not based on a formal Executive Order DACA stems from DHS Secretary s memoranda to ICE, CBP, and USCIS on proper exercise of prosecutorial discretion An individual granted DACA is not placed in a nonimmigrant status If already DACA recipient, apply for extension now If out of the USA on a DACA-based Advance Parole (travel permission), return to USA as soon as possible Do not travel out of U.S. even if granted Advance Parole without seeking counsel of an attorney danger of self deportation Consult attorney before applying for an initial grant of DACA Consensus currently seems to be not to apply for an initial grant until new administration provides firm guidance BRIDGE Act introduced in last days of 114th Congress Would make DACA part of the I.N.A. Provide provisional protected status and employment authorization Will need to be re-introduced in the 115th Congress
14 H-1Bs are employment visas for professionals in specialty occupations Colleges & universities are exempt from the annual, national quota of 85,000 H-1Bs Last year s H-1Bs were gone in 5 days 230,000 Petitions were filed for the 85,000 H- 1Bs Schools recent graduates being forced to leave the U.S. PREMIUM PROCESSING SUSPENDED EFFECTIVE April 3, 2017
15 Annual, national quota of 65,000 new H-1B visas Additional 20,000 H-1Bs for holders of a U.S. master s degree or higher position itself need not require a masters or higher Colleges, universities & affiliated non-profits exempt from quota Other cap exemptions Visas become available October 1 st each year Petitions can be filed up to 6 months in advance: earliest filing date is April 1 st each year Cap gap protection for F-1 students on OPT Premium Processing suspended April 3, 2017
16 H-1B Petition Filings Past 3 Fiscal Years
17 Employment by college or university. NOTE: under attack in Congress) Employment by non-profit organization affiliated with college or university Employment by non-profit research organization or a governmental research organization Employment by for-profit enterprise at university/college Part-time or full-time employment by university/college with concurrent employment by for-profit enterprise
18 Concurrent employment by both the college or university and the normally cap-subject employer Employment by a normally cap-subject employer of its employee at your campus
19 Job located at college/university campus Job Duties further College Mission For profit company files H-1B petition
20 H-1B Worker works part-time or full-time at University For-profit concurrent H-1B University files part-time or full-time H-1B petition for For-profit company files worker concurrent petition for same H-1B worker This petition is also cap exempt Job can be located off campus Job can be unrelated to college employment
21 Several Executive Orders have been signed by new president relating to immigration. One was reviewed by an Appeals Court: 1. Protecting the Nation from Foreign Terrorist Entry into the United States Current 9 th Cir. Decision I. The President s Executive Orders Are Reviewable by the Courts II. The States Have Standing to Challenge the Executive Order. III. The Federal Government Is Unlikely to Win Its Appeal Because the States Have Alleged a Due Process Violation. IV. The Federal Government Did Not Establish Harm Resulting From the TRO. V. There Is A Strong Public Interest in Both Security AND the Free Flow of Travel, Family Relationships and Non- Discrimination.
22 President had several options: appeal the 9 th Circuit decision to Supreme Court, seek more review in 9 th Circuit, go to trial in Seattle on the TRO or revoke his 1 st EO. He chose to revoke his 1 st EO and issued a 2 nd EO Travel Ban. (March 6, 2017) Removed Iraq from list of countries Re-designated Iran, Libya, Somalia, Sudan, Syria & Yemen their citizens blocked for 90 days Affirmed validity of previously invalidated visas Affirmed that Permanent Residents of the 6 countries can travel Stopped refugee processing from all countries for 120 days
23 Removed preference for non-muslim religions Affirmed that Dual Nationals of the 6 countries traveling on a passport of a non-designated country can travel Allowed a 10 day notice period before enforcement Reduced number of refugees to 50,000 for Fiscal Year 2017 Maintained status of those validly in status in the U.S. Affirmed that pending applications by citizens of the 6 countries will not be suspended Affirmed that Visa Renewal Interview-Waiver Program is suspended. All applicants must be interviewed inperson Waivers of the Travel Ban available on a case-by-case basis
24 I. Border Security and Immigration Enforcement Improvements II. Enhancing Public Safety in the Interior of the U.S. DHS Secretary John Kelly issued two memos to carry forth the EOs: Expedite deportation proceedings, currently limited to undocumented immigrants who have been in the country for two weeks or less, to anyone who has been in the country for up to two years. Return immigrants who are apprehended at the border back home pending the outcomes of their deportation hearings, rather than house them on U.S. property. Hire 10,000 additional ICE agents and 5,000 more for the Border Patrol, which had been included in Trump s executive actions. Expand partnerships with municipal law enforcement agencies that deputize local police to act as immigration officers for the purposes of enforcement.
25 CBP officers have broad powers to search & seize phones, laptops, and other electronic devices to determine violation of U.S. laws Accessing phone information, social media accounts AILA guidance CBP can hold you (or let you go and hold the phone) until there is compliance Not hearing a lot of cases recently Marijuana
26 Sanctuary Movements are not based in law Sanctuary Churches: history of shelter of asylum seekers seeking refuge from Central American wars of the 1970s and 80s--form of civil disobedience Municipal Governments: Generally city police are instructed to provide service to all members of the community: Without inquiring about immigration status Not to honor ICE s voluntary detainers (voluntary requests by ICE to local law enforcement to hold individual for ICE questioning) Not to enforce immigration laws Governors of New York and California have proposed state-wide protection University and College Campuses Family Educational Rights and Privacy Act protects student records Subpoena required for disclosure for most student records Students records for F and J more readily available to DHS Must comply with lawful warrants and regulatory orders
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