Breaking News 06.26.2015

DAPA and Expanded DACA Halted While Original DACA Remains In Effect


On May 26, 2015, the U.S. Fifth Circuit Court of Appeals affirmed a federal district court decision which had temporarily halted the implementation of President Obama's latest "Executive Action" known as "DAPA" (Deferred Action for Parents of Americans and Lawful Permanent Residents) and Expanded "DACA" (Deferred Action for Childhood Arrivals). The underlying federal district court order temporarily halted U.S. Citizenship and Immigration Services (USCIS) from implementing DAPA and Expanded DACA. Although these federal courts may still ultimately allow USCIS to implement DAPA and Expanded DACA, USCIS has made clear that it will not accept any DAPA or Expanded DACA applications until the courts resolve the matter, at a future date.

DAPA and Expanded DACA would extend immigration benefits and employment authorization to certain persons beyond the original DACA program. DAPA would have extended work permits to most parents of US citizens and permanent residents. Expanded DACA would have moved the arrival date forward to January 1, 2012, and removed the upper age limit of 30 at time of application. The court rulings regarding DAPA and Expanded DACA do not impact the original DACA program, which remains intact. USCIS continues to accept applications and renewals of the original DACA program.

To be eligible for the original DACA program, applicants must meet a number of requirements:

· Have been born on or after June 16, 1981

· Have come to the US before reaching their 16th birthday

· Have continuously resided in the U.S. since June 15, 2007, up to the present time

· Were physically present in the United States on June 15, 2012, and at the time of making the DACA application

· Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012

· Are currently in school, have graduated from high school, or obtained a general education certificate (GED)

· Have NOT been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety (If any arrests or criminal convictions, DISCUSS WITH AN IMMIGRATION ATTORNEY)

· Be at least 15 years old to file an application (unless you are or have been in deportation proceedings)

· Persons with ANY criminal history, no matter how minor, or past or present deportation proceedings, should always consult an attorney before applying for DACA or DACA renewal.

To be eligible for DACA renewal, applicants must meet the above requirements and additionally must:

· Have not have departed the United States on or after August 15, 2012 without permission from USCIS (called advance parole)

· Have continuously resided in the U.S. since submitting the most recent request for DACA

· Have NOT been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Again, it is advisable to seek an attorney's advice if the applicant has ANY criminal history.

For more information on DAPA, Expanded DACA, and original DACA, see the uscis.gov website: USCIS Updates and USCIS DACA

July 2015 Visa Bulletin Brings Changes in Some Visa Categories and No Change in Others

The Department of State's July 2015 Visa Bulletin brought modest changes in some visas categories, and no change in others. Notably, the EB-3 category (professionals and skilled workers) will become unavailable for Filipino nationals.

Additionally, Indian nationals seeking classification under the EB-2 preference category (professionals with an advanced degree and exceptional ability) will see no change from the month of June. Those seeking classification under the EB-3 and other workers categories will see a small advance from January 22, 2004 to February 1, 2004. Chinese nationals under EB-2, advanced four months to October 1, 2013, while EB-3 and other workers remained the same.

On the family side, F-1 (Family-sponsored preference 1, unmarried sons and daughters of U.S.-citizens) moved forward one month for Chinese and Indian nationals, along with non-listed nationalities, to October 1, 2007. F-1 remains unchanged for Mexican nationals at November 15, 1994, while F-1 for Filipino nationals moved forward two weeks, to March 15, 2000.

Additionally, F-2A (spouse and children of permanent residents) moved forward five weeks for Chinese, Indian, and Filipino nationals, along with non-listed nationalities, to November 8, 2013. F-2A moved forward five weeks for Mexican nationals, to September 15, 2013.

For more details, see the Department of State's website: July Visa Bulletin

Update on Department of State Visa Processing Problems

Recently, the U.S. Department of State (DOS) announced that it has been experiencing technical problems since June 9, 2015 that were disrupting the timely issuance of visas. The problem resulted in visa delays and rescheduled interviews.

On June 23, 2015, DOS reported that it has rebuilt and tested an internal system, and that 9 posts, representing more than two-thirds of its normal capacity, are now online and issuing visas. As a result, DOS issued 45,000 visas the day prior, including 15,000 in Beijing. DOS reports that it expects full functionality to return soon, hopefully this week.

For more information, see the Department of State's website: DOS Updates

USCIS Begins Granting Employment Authorization for Certain H-4 Spouses

U.S. Citizenship and Immigration Services (USCIS) has begun accepting applications to extend employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants.

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

· Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker (permanent residence petition by an employer for an employee); or

· Have been granted H-1B status beyond the normal six-year limit because they are seeking lawful permanent residence in the United States.

According to Director Leon Rodriguez, "Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families."

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 in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). 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.

For more information see the uscis.gov website: USCIS H4 Employment

Although this new employment authorization for certain H-4 dependents is being challenged in a lawsuit, the court declined to temporarily halt the new DHS rule, which became effective on May 26, 2015.

Expanding and Extending TPS

TPS Extension for Somalia

The Department of Homeland Security (DHS), has extended Temporary Protected Status (TPS) for eligible nationals of Somalia (and eligible individuals without nationality who last habitually resided in Somalia) for an additional 18 months, effective Sept. 18, 2015, through March 17, 2017.

Current TPS Somalia beneficiaries seeking to extend their TPS must re-register during the 60-day

re-registration period that runs from June 1, 2015, through July 31, 2015. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. USCIS is now accepting applications.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible TPS Somalia beneficiaries who

re-register during the 60-day period and request a new EAD will receive one with an expiration date of March, 17, 2017.

Additional information on TPS for Somalia-including guidance on eligibility, the application process and where to file-is available online at uscis.gov/tps. Certain individuals who are not current TPS beneficiaries may be able to apply late for TPS under the Somalia designation. Information on Late Initial Filing is also available at uscis.gov/tps. Further details about this extension of TPS for Somalia, including the application requirements and procedures, appear in a Federal Register notice published today.

Applicants seeking information about the status of their individual cases can check My Case Status Online, or call the USCIS National Customer Service Center at

1-800-375-5283 (TTY 1-800-767-1833).

For more information see the uscis.gov website: USCIS Somalia

Initial TPS Registration for Syria

The Department of Homeland Security (DHS) has set a deadline of Monday, July 6, 2015, for initial registration for Temporary Protected Status (TPS) for eligible nationals of Syria. ByJuly 6, 2015, eligible nationals of Syria (and people without nationality who last habitually resided in Syria) who do not currently hold Temporary Protected Status (TPS) must register for TPS, if they seek to acquire TPS. The redesignation of Syria for TPS runs from Jan. 5, 2015, through Sept. 30, 2016.

The TPS applicant must demonstrate all eligibility criteria, including that the applicant has been "continuously residing" in the United States since Jan. 5, 2015, and "continuously physically present in" the United States since April 1, 2015. The applicant must also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.

More information about the designation of Syria for TPS-including guidance on eligibility, the application process and where to file-is available at uscis.gov/tps, the Syria TPS page and in the Federal Register notice.

For more information see the uscis.gov website: USCIS Syria

DHS Announces TPS Designation for Nepal

On June 24, 2015, DHS announced that it is designating Nepal for Temporary Protected Status (TPS) for 18 months based on the conditions resulting from the devastating magnitude 7.8 earthquake that struck near Katmandu on April 25, and the subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Register notice published today provides details and procedures for applying for TPS.

The TPS designation for Nepal is effective June 24, 2015, and will be in effect through December 24, 2016. The designation means that, during the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015. Eligible applicants must register by the December 21, 2015 deadline.

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both "continuously physically present" and "continuously residing" in the United States since June 24, 2015. Applicants also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS. The eligibility requirements are fully described in the Federal Register notices and on the TPS Web page at www.uscis.gov/tps.

For more information see the uscis.gov website: USCIS Nepal

TPS Registration Period for Liberia, Guinea, and Sierra Leone Extended

The Department of Homeland Security (DHS) is extending the initial registration deadline for Temporary Protected Status (TPS) from May 20, 2015, to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries). Further details about the extension of the initial registration period appear in a Federal Register notice published today.

DHS has strongly encouraged eligible TPS applicants from these three countries to apply as soon as possible because applications will only be accepted through August 18, 2015.

DHS began accepting TPS applications on Nov. 21, 2014, from applicants of these three countries when DHS announced the 18-month TPS designations for Liberia, Guinea, and Sierra Leone, from Nov. 21, 2014, through May 21, 2016. For applicants who submitted an application for one of these three countries and DHS previously returned the application based on the May 20, 2015 deadline, those individuals may now resubmit your complete application by August 18, 2015.

TPS applicants must demonstrate that they meet all eligibility criteria, including that they have been "continuously residing" in the United States since Nov. 20, 2014, and "continuously physically present" in the United States since Nov. 21, 2014. They must also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.

Additionally, Liberian nationals may apply for TPS even if they are currently covered under the two-year extension of Deferred Enforced Departure (DED) based on President Obama's Sept. 26, 2014 memorandum. For DED-covered Liberian nationals who have an EAD or have applied for an EAD, such individuals need not apply for another EAD related to this TPS designation. However, if such an applicant is granted TPS, he or she may request a TPS-related EAD at a later date as long as the TPS designation for Liberia remains in effect.

Additional information about TPS for Liberia, Guinea, and Sierra Leone - including guidance on eligibility, the application process and where to file - is available at USCIS TPS

For more information on this announcement see the uscis.gov website: USCIS TPS

This Web alert is also available in French.

F-1 Special Student Relief Expected Soon

for Nepalese Nationals

It is expected that the Department of Homeland Security (DHS) will soon afford Special Student Relief to F-1 students from Nepal. More information will be forthcoming.

Regulations allow DHS to suspend or alter rules regarding duration of status, full course of study, and employment eligibility, for specific groups of F-1 students from parts of the world that are experiencing emergent circumstances. This collection of benefits is known as "special student relief."

Click here for more information

Update on PERM Modernization

In late 2014, the Department of Labor (DOL) announced that it would soon begin reviewing the permanent labor certification process (PERM) in an effort to modernize application requirements.

Last week, DOL gave Notice of Proposed Rulemaking for December 2015 regarding PERM Modernization. The proposed rule, which should be released by the end of the calendar year, could update a number of areas including:

· Recruitment activities

· Schedule A

· Harmless error

· Ability to use experience gained with sponsoring employer

· Disclosure to foreign workers of outcomes and status

· Disclosure of contracts between workers and recruiters

There may also be a new IT structure for PERM.

For more information, see the Department of Labor's website: DOL Perm and Reg Info

Supreme Court Confirms Subsidies for the Affordable Care Act

On June 25, 2015, the U.S. Supreme Court in King v. Burwell again upheld the validity of the Affordable Care Act ("Obamacare"). Specifically, the Court in Burwell explained that the healthcare marketplace exchanges in all 50 states, and the associated subsidies, were valid, regardless of whether the exchanges were run by the state or federal government. The ruling applies both to U.S. citizens and foreign nationals who are eligible for subsidized coverage.

The Supreme Court's decision in Burwell confirms that individuals who have purchased subsidized or non-subsidized healthcare policies using these online marketplace exchanges can keep those policies. The Supreme Court's decision also confirms that "lawfully present immigrants" still can qualify to buy subsidized healthcare coverage on the online exchanges pursuant to the Affordable Care Act. In this context, "lawfully present immigrants" include legal permanent residents, foreign nationals present in the United States on a non-immigrant visa (such as F-1 students, for example), and certain foreign-nationals present under certain humanitarian statuses or circumstances (including Temporary Protected Status, Special Juvenile Status, asylum applicants, Convention Against Torture, victims of trafficking).

Speak to an attorney to learn more about your particular situation. To find out your eligibility for benefits and subsidies click here: Healthcare.gov

Attorney Speaking Engagements

Ware|Immigration attorneys frequently present at regional and national conferences. They also have speaking engagements at various universities and corporations across the nations.

If you are interested in attending one of the presentations or inviting an attorney to speak at your business, please contact [email protected] to discuss possibilities.

Here are some of the upcoming engagements.

Ware|Immigration On the Web

Check out our website for more information, and we invite you to connect with us via Facebook or Twitter for updates.