Immigration Law Update March 2015

March 2015

Court Blocks Expanded DACA, DAPA; Obama Administration Appeals

On February 23, 2015, the Department of Justice (DOJ) filed paperwork to seek a stay of a federal district court decision to block temporarily some of President Obama's latest executive actions on immigration. That decision was in response to a lawsuit by 26 states. The blocked programs include an expansion of Deferred Action for Childhood Arrivals (DACA), which had been set to start in February, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was scheduled to begin in May.

U.S. District Judge Andrew Hanen of the Federal District Court for the Southern District of Texas, in Brownsville, ruled in favor of blocking the programs on February 16. Judge Hanen said the programs would impose major burdens on states and that the Obama administration exceeded its authority in changing federal rules.

The temporary injunction does not block the existing DACA program, only the expansion announced in November 2014. Individuals may continue to request initial grants or renewals of DACA under the guidelines established in 2012, Secretary of Homeland Security Jeh Johnson stated. He also noted that other actions announced in November 2014 were not affected by the ruling, including prioritizing enforcement efforts.

Secretary Johnson issued a statement on February 17 saying that he "strongly disagree[d]" with the District Court's temporary injunction blocking the programs, but that his agency would not begin accepting requests for expanded DACA on February 18 as originally planned, and would suspend plans to accept DAPA requests until further notice. " The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do," he said.

Meanwhile, President Obama fielded immigration questions at a "town hall"-style meeting on February 25, 2015, conducted by MSNBC and Telemundo. Noting that the Senate had passed comprehensive immigration reform in 2013 but that House Republicans refused to bring the bill to the floor for a vote, he said he had decided to use his executive authority to "try to make sure that we are prioritizing our immigration system a lot smarter than we've been doing." He stressed the importance of voting to change related laws. He also noted that he would veto legislation intended to eliminate his executive actions.

The preliminary injunction is available here. The Obama administration's statement on Texas v. United States is available here. Information on DAPA is available here. Information on the recent executive actions on immigration can be found here. A February 11 FAQ can be found here.

DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced on February 24, 2015, that effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

* Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
* Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS said it expects this change to "reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society." As such, USCIS noted, the change "should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them." The agency noted that the change "should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation." The rule also "will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers," USCIS said.

USCIS estimates that the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, "and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date," USCIS said.

The notice is available here. The final rule is available here.

States, Governors File Suit Against President's Executive Actions on Immigration

Various states and four governors filed suit on December 3, 2014, challenging several of President Barack Obama's recent executive actions on immigration, announced on November 20 and detailed in Department of Homeland Security (DHS) memoranda. The lawsuit singles out a DHS directive on expanding deferred action for childhood arrivals (DACA) for certain individuals who came to the United States as children and creating a new deferred action program for certain parents of U.S. citizens or permanent residents. The lawsuit claims that the directive constitutes a "unilateral suspension of the Nation's immigration laws [that] is unlawful."

The lawsuit contains numerous quotations from President Obama stating that he can't change laws himself and needs Congress to pass immigration reform. The suit notes that later, however, he expanded DACA and said, "I just took an action to change the law." White House spokeswoman Brandi Hoffine responded, "The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and we are confident that the president's executive actions are well within his legal authorities."

Shortly after the mid-term elections in November 2014, President Barack Obama initiated various executive actions on immigration. The actions challenged in the lawsuit include:

* Expanding DACA to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. Under President Obama's executive action, DACA eligibility is expanded to cover all undocumented immigrants who entered the United States before the age of 16, not just those born after June 15, 1981. The entry date is adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available here.

* Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), includes individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available here.

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama's legal authority to expand the DACA program and to establish the DAPA program. It is available here.

The full text of the states/governors lawsuit.

The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available here. Additional memoranda are available here (modernizing and streamlining the U.S. visa system) and here (establishing a White House Task Force on New Americans).

DOL Elaborates on Procedures Under Comite de Apoyo Decision RE H-2B Prevailing Wages

In response to inquiries, the Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:

Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.

Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.

The OFLC's December 23, 2014, announcement is available here.

USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year. The notice listing the 68 eligible countries was published in the Federal Register on December 16, 2014.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

The list of 68 countries is available here (announcement) and here (Federal Register notice).

DOL Announces 2015 H-2A Adverse Effect Wage Rates

On December 19, 2014, the Department of Labor's (DOL) Office of Foreign Labor Certification published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) for each state, based on the Farm Labor Survey conducted by the Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A foreign agricultural workers and workers in corresponding employment for a particular agricultural job and area, so that the wages of similarly employed U.S. workers will not be adversely affected.

The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

The notice is available here.

USCIS Reminds EB-5 Regional Centers of December 29 Deadline to File I-924As

USCIS recently issued a reminder to all approved EB-5 regional centers with designation letters dated on or before September 30, 2014, that they needed to file Form I-924A, Supplement to Form I-924, for fiscal year 2014 by December 29, 2014.

If a regional center failed to file the I-924A, USCIS will issue a notice of intent to terminate participation in the EB-5 Immigrant Investor Program. If a regional center filed an incomplete Form I-924A, USCIS may issue a notice of intent to terminate participation.

The notice is available here. A related Q&A is available here.

ABIL Global: France

New work permit forms are effective January 1, 2015.

For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.

Information Required From the Home Company Abroad

a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).

b) Date of creation of the company.

c) Name of the legal representative of the home company.

d) Main activity of the home company.

e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the

French affiliate company.

f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.

g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.

Information Required From the Host Company in France

a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.

b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.

c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.

d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.

Information and Documents Required From the Employee

a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.

b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).

As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.

As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.

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