Immigration Law

Innovative thinking and practical solutions

Driver’s Licenses for DACA Beneficiaries

Posted in Arizona, DACA, Deferred Action

According to The Huffington Post, the State of Arizona and the US Federal Government are once again tussling over domain with regard to benefits based on immigration status. This round it’s driver’s licenses and DACA beneficiaries.

The Obama Administration, in a friend-of-the-court brief,

“urged a court to reject Arizona Gov. Jan Brewer’s appeal of a ruling that blocks the state from denying driver’s licenses to young immigrants who have avoided deportation under a change ordered by the president.”

According to the filing, these immigrants, who have avoided deportation under the Deferred Action for Childhood Arrivals (DACA) policy, are the only immigrants whose documents are not accepted by the Arizona state government for the purpose of obtaining a driver’s license.

Governor Brewer is asking the 9th Circuit Court to review the ruling.  The US Justice Department is arguing that no review is warranted.

“The [Arizona] state driver’s license policy was a reaction to steps the Obama administration took in June 2012 to shield thousands of immigrants from deportation and expand their legal rights. About 580,000 people have been approved to take part in the program, including about 20,000 in Arizona.

Brewer issued an executive order in August 2012 directing state agencies to deny driver’s licenses and other public benefits to young immigrants who get work authorization under the program.”

As the rules governing eligibility for driver’s licenses are determined at the state level, DACA does not automatically provide its recipients access to a state driver’s license.  Nonetheless, DACA recipients who obtain work authorization and Social Security numbers are eligible to obtain a license in almost every state.

Only Arizona and Nebraska adopted policies excluding DACA recipients from driver’s license eligibility. These policies in Nebraska are also under challenge in court.

Taking 221(g) Administrative Processing Too Far?

Posted in Consular Processing, Necessary Administrative Processing, Nonimmigrant Visas, Security Checks

The Obama administration has touted a number of new initiatives aimed at encouraging immigrant entrepreneurship and retention of high-tech workers in the U.S. These are commendable and this author applauds these efforts. However, a major obstacle causing seemingly unnecessary delays is “administrative processing” for nonimmigrant visa applicants under section 221(g) of the Immigration and Nationality Act. This law has been around for years and is an additional security clearance conducted by the U.S. Department of State before a visa can be issued. Until recently, administrative processing was reserved for only the most extreme cases. Now, however, 221(g) administrative processing is being used much more frequently.

There are legitimate reasons why an additional clearance may be needed. Most are related to concerns about possible terrorism or the misuse of technology while in the U.S. The absurdity of administrative processing is not the law itself, but the way it is applied at embassies and consulates abroad. Consider the following common scenario:

A foreign national graduated from a U.S. university after having previously been issued an F-1 student visa. That foreign national was one of the fortunate ones who managed to secure an H-1B visa from the extremely limited quota and now she happily holds H-1B visa status. That same foreign national has been living and working in the U.S. for a few years. Now, she wants to travel back to her home country, and even though her status has been changed in the U.S., she must apply for the H-1B travel visa at the U.S. consulate abroad in order to return after her international trip. Should be no problem right? WRONG!

The visa application itself is stressful enough requiring completion of a number of bureaucratic steps, not the least of which is an interview at the U.S. embassy or consulate abroad. However, if this visa applicant is subject to 221(g) administrative processing, the delay in completing the administrative processing security clearance and issuance of the visa can be anywhere from a few weeks to several months.

Imagine the disbelief of the employee’s U.S. manager when told that this employee, who previously attended a U.S. university in valid F-1 student status and has been working in the U.S. for this employer for several years, must wait outside the U.S., potentially for months, until the H-1B visa is issued.

It can be difficult to answer the reasonable follow-up questions posed to us as immigration lawyers:

“But she’s been living the U.S. for a long time. Why is this only now an issue for the government?”

“If our government is that concerned about this person’s eligibility for a visa, why did it previously issue her a student visa and allow her to live in the U.S. for so long?”

And of course, “When will she be able to return to the U.S. to continue working?”

If administrative processing isn’t reigned in to limit security clearances to real security issues, skilled foreign nationals will add this to their growing list of reasons to move out of the U.S. and provide their services—and economic benefits—in other countries.

2016 Diversity Visa Lottery Registration Begins Today

Posted in Diversity Lottery, Green Card, Immigrant Visa

It’s that time of year again. The Department of State will begin accepting requests to register for the 2016 Green Card Lottery. Online registration begins today, October 1, 2014 and will conclude on November 3. The lottery, officially known as the Diversity Immigrant Visa Program (DV-2016), is a path for foreign nationals who meet the eligibility requirements to secure permanent resident status in the United States.

Facts about the Green Card Lottery for 2016

  • Online registration begins on the US Department of State’s website on October 1, 2014 and ends on November 3.
  • There is no fee to register for the Green Card Lottery.
  • 50,000 green card entries from those who meet the eligibility requirements will be selected.
  • Being selected does not guarantee a person will get a green card — applicants still need to  meet the standards for admissibility and to file a visa application and supporting documentation with USCIS within the designated time period.

For more information about the Diversity Visa Lottery Program and how it all works, read this advisory Susan Cohen recently wrote that sums up what foreign nationals need to know.

Free Webinar: Auto Dealer Industry Wage & Hour Compliance – October 8, 2014

Posted in Employment Law

Wage and hour lawsuits and governmental investigations targeting auto dealerships are on the rise.  Join my colleague James Nicholas, the Chair of Mintz Levin’s Wage & Hour Class Action Practice, for a free educational webinar on October 8 that will address the latest trends in compliance affecting auto dealerships and how you can develop and implement effective strategies for minimizing your exposure to these types of claims.  The full invitation with registration information can be found here.

6 Little Known Facts About H-1B Visas

Posted in H-1B, Immigration Policy, Nonimmigrant Visas

It is almost October 1st, when thousands of new H-1B visas will become effective with the onset of the US government’s 2015 fiscal year.  In light of this, here are six little known but important facts about H-1B visas:

  1. H-1B visas are available for part-time as well as full-time positions.
  2. People can hold multiple, concurrent, H-1B positions, as long as each employer has filed and has ultimately received an approval for its petition.
  3. Entrepreneurs can set up companies that can file H-1B visa petitions on their behalf, as long as they can prove they have an arms-length relationship with their company.
  4. If someone has worked in H-1B visa status for less than 6 years, and has taken a number from the H-1B visa quota, he/she is not subject to the quota for subsequent H-1B employment, even following an intervening period in a different visa status (such as a student visa) or following departure from the US.
  5. If someone is the beneficiary of a cap-subject H-1B petition approval effective October 1st, he/she is no longer subject to the quota and is eligible for approval of a new H-1B visa petition filed by a different employer.  This is true regardless of whether the person is inside or outside the US.
  6. Even when the H-1B visa quota has been exhausted, for-profit employers may obtain H-1B visa petition approvals for some employees under certain circumstances. For example, where the individual is also employed in H-1B status by an H-1B quota-exempt employer, such as a university, OR where the work will further the university’s educational purpose and will be performed on campus.

USCIS Regulations Slowly Catching up/Catching on to Current Immigration Realities

Posted in Employment Law, H-1B, Immigration Policy, Immigration Reform, USCIS ELIS

Written by Susan Cohen

In recent days, the Department of Homeland Security (“DHS”) has published several proposed rules in the Federal Register, which, if adopted, will bring welcome and much needed regulatory changes.

Authorizing  Employment Authorization for Spouses of Certain H-1B Workers

On May 12, 2014 DHS published a proposed rule to allow the spouses of certain H-1B temporary workers the right to work in the United States.  Continue Reading

What F-1 Students Need to Know About Work & Travel Before October 1

Posted in H-1B, Immigration Policy

By Susan Cohen and Bill Coffman

If you are an F-1 student with OPT employment eligibility and your H-1B filing has been accepted by USCIS, visa petitions will be adjudicated over the next few months, and approved petitions will have an October 1, 2014 start date. Whether you can travel and return to work before October 1 depends on your specific situation.

We list our recommendations for these common scenarios in our recently published advisory, “Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization.”

  • My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.
  • My OPT employment card has not expired and my H-1B has been approved.
  • My OPT employment card has expired.
  • I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa
  • My H-1B petition was denied by USCIS

 

Free Employment Law Webinar: Tips on Drafting Restrictive Covenants – May 28, 2014

Posted in Employment Law

Join two of our colleagues from the Employment, Labor & Benefits Practice for this free webinar on drafting restrictive covenants, to be held on May 28th. The panelists include Mintz Levin attorneys Bret Cohen and Mitch Danzig, and Jeff Lambert, the Chief Legal Officer of our client The Active Network. They will discuss the importance of getting the right restrictive covenant in protecting your trade secrets and restricting competition. The invitation with registration info is here.

To follow all posts from our employment attorneys, check out the Employment Matters blog.

Changes for H-1B tech workers and their spouses on the horizon?

Posted in H-1B, Immigration Policy, Immigration Reform

The Obama administration has proposed changes to regulations regarding spouses of people who are working under H-1B high-skilled employment visas. The changes, which will appear in the Federal Register later this week, are intended to attract people who work in science, technology, engineering, and mathematics to the U.S.. In this Fox News Latino article, I comment on the merits of the proposal. Also discussed are criticisms of the proposed changes and their effect on the American workforce.

U.S. Customs and Border Protection Rolling Out Electronic Travel Records

Posted in CBP News, I-94, Immigration Policy

Written by Maryanne Kline

In April 2013, U.S. Customs and Border Protection (CBP) introduced electronic Forms I-94, enabling nonimmigrants entering the U.S. via air and sea to easily access their Form I-94 Arrival/Departure Records online.  As of  May 1, 2014, this electronic system has been expanded to provide access to an individual’s full arrival and departure history for the past five years. Continue Reading