Drivers License

The Deferred Action for Childhood Arrivals program (DACA) allows for work permits to certain undocumented immigrants who apply for such, and who meet seven criteria:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching their 16th birthday;
• Have continuously resided in the United States 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 their request for consideration of deferred action with USCIS;
• Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• 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.

Beneficiaries of DACA who apply for employment authorization will them in the form of an employment authorization card.

Employment authorization cards issued during the pendency of other ongoing immigration application (green card, asylum) historically allowed beneficiaries to obtain social security numbers and driver’s licenses. You simply present this card to the social security office or BMV, and you can obtain a social security number and driver’s license respectively.

But states have been split in granting driver’s licenses to beneficiaries of DACA. The governors of Nebraska and Arizona stated the past week that their states will deny driver’s license benefits to DACA beneficiaries.

MSNBC reported that California though has approved a bill allowing DACA beneficiaries to obtain driver’s licenses. The bill passed the state assembly, 55-15, on August 30, before getting sent to Democratic Governor Jerry Brown. The bill also passed the state Senate in 25-7 vote on August 29.

DACA beneficiaries and potential applicants should first check whether their states would allow them to get a driver’s license.

Republicans

Jason Riley in the Wall Street Journal wrote that Republicans in the GOP convention support a policy that encourages high-skill immigration over low-skill immigration. This should imply that programs such as the H-1B, National Interest Waiver, Alien of Extraordinary Ability, and Labor Certification would be favored over laws and executive orders such as the current Deferred Action Program, if they would support any area of immigration at all. But this also weakens their hold on the Latino vote. Over 50% of those benefiting from DACA are Latinos.

Detention

This New York Times editorial encourages Governor Jerry Brown of California to sign the Trust Act. The Trust Act is a recently passed California bill that prevents local police from turning their detention facilities into immigration holding cells for noncriminals or minor offenders whose sentences are finished or should otherwise be out on bail. The Act would require the police to let such people out, even if the Immigration and Customs Enforcement (ICE) issued requests that they be held until they can be picked up for deportation. The Act provides that only those who have been convicted of or charged with serious or violent felonies would continue to be detained an ICE’s request. On August 31, the Los Angeles City Council voted 11 to 0 for a resolution endorsing the bill. The bill’s rationale is to be in line with the Department of Homeland Security’s focus on deporting national-security threats, dangerous criminals, and repeat offenders.

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Some people can apply for a green card despite overstaying their status, such as those who are legal entry overstays who apply for a green card based on marriage to a US Citizen, or those who are applying based on employment, overstayed their status, but benefit from Section 245i. When you have a green card application pending, you may apply for advance parole, a travel document that in theory permits you to travel and reenter the United States. So those who overstayed and applied for a green card usually still obtain advance parole.

Prior to Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which we shall discuss in a bit, the Department of Homeland Security’s (DHS) position was that those who departed the U.S. on an advance parole, after incurring unlawful presence of six months or more, would be subject to either the three or ten year bars, and are thus inadmissible. Because of this position, a lot of people who have approved advanced paroles after incurring years of unlawful presence (marriage to a U.S. Citizen or those eligible for adjustment due to INA 245i) were not able to return to the United States due to either the three or ten year bar. Why does the I-131 advance parole get granted when the applicant will be inadmissible anyway? Who knows. Those applicants would’ve been better off had the I-131 been denied, because at least it would have prevented them from traveling abroad. It was a tricky and deceiving aspect of advance paroles and adjustment of status applications for those with unlawful presence issues, especially for those who did not seek legal advice.

But in Matter of Arrabally and Yerrabelly, the Board finally held that a departure under an approved advance parole is not a “departure” for purposes of INA § 212(a)(9)(B) which triggers the three and ten year bars. Thus, those who have over six months of unlawful presence, who are eligible to adjust status in the United States, would now be able to come back on the advance parole without being inadmissible anymore. This is a big decision for those employment-based 245i green card cases by applicants with six or more months unlawful presence. Since visa retrogression has delayed a lot of green card applications, those applicants with unlawful presence issues but are 245i eligible can now apply for advance parole and visit their home countries, without being subject to the three or ten year bars that the DHS used to impose on them upon return prior to this BIA decision.

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In a recent BALCA Decision, In re MILLC, Case No. 2011-PER-01256, BALCA affirmed the Certifying Officer’s decision denying employer’s labor certification application for failure to include travel requirements in its advertising. The employer’s Form 9089 stated that travel between 34% to 45% of the time is required. Their newspaper advertisements though did not include this requirement. BALCA cited 20 C.F.R. § 656.17(f)(4) which states that “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” BALCA concluded that the ads did not sufficiently indicate the geographic area of employment for the job opportunity described in Form ETA 9089 Section H.

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Deferred action for childhood arrivals is a policy by the Department of Homeland Security that allows individuals who came here at a young age, and who meet other requirements that would explained below, to have work permits and have possible removal deferred as an exercise of prosecutorial discretion. As we posted in our previous article, DHS Secretary Napolitano issued a memorandum announcing that the DHS will offer deferred action for two years to certain young people who came to the U.S. as children and meet other eligibility criteria. This memo came out on June 15, 2012.  According to the memo, individuals who receive deferred action will not be placed in removal proceedings or removed from the U.S. for the duration of the grant. Individuals in removal proceedings, those with final orders, and those who have never been in removal proceedings will be able to affirmatively request deferred action from the USCIS.

According to USCIS FAQs released in August 2012, an individual who meets the following criteria may apply for deferred action:

1. Was under the age of 31 as of June 15, 2012;
2. Came to the U.S. before reaching his/her 16th birthday;
3. Has continuously resided in the U.S. since June 15, 2007, up to the present time;
4. Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
5. Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
7. Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

To request deferred action from USCIS, individuals must submit:

1. I-821D, Consideration of Deferred Action for Childhood Arrivals
2. I-765, Application for Employment Authorization (cannot be e-filed)
3. I-765 WS, Worksheet
4. Government Fee of $465 payable to the “USCIS”

Should you wish to have your case assessed for deferred action purposes, feel free to contact our office at (216) 573-3712 or 1 (800) 496-8043, email us at info@sarmientoimmigration.com, or place your questions below on the comment section.

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Legal Entry Overstay

This is the most common marriage-based fact pattern: foreigner enters the United States legally on a non-immigrant visa such as a tourist or student, has an I-94, overstays and /or violates their status by working illegally, but later falls in love and marries a U.S. Citizen in good faith. Those people can be petitioned by their spouse and file for a green card in the United States.

But what if you entered illegally by crossing the border? Say you crossed through Canada, rode a van and was let in without inspection, or you managed to cross the US-Mexico border in California, Texas, or Arizona without inspection, and you married a U.S. Citizen, can you still get a green card based on marriage without leaving the United States?

This law called INA § 245(i) allows these people to apply for a green card. The law’s application comes in two important petition deadlines which will be explained below, January 14, 1998 and April 30, 2001. We assume that there are no other basis for inadmissibility other than illegal work and illegal entry. So if you are convicted of certain crimes or committed fraud in certain contexts, such as misrepresenting in a job application or I-9 form that you are a U.S. Citizen, inadmissibility may still apply.

Beneficiary of a Petition Filed Before January 14, 1998

If you had a labor certification or an I-130 visa petition filed on your behalf on or before January 14, 1998, even if you entered without inspection to the U.S. at any time, INA § 245(i) protects you in the sense that you can file for a green card in the United States through marriage to a U.S. Citizen. “I-130 visa petition filed on your behalf” includes those petitions in which you were a derivative beneficiary. Let’s say your US Citizen uncle filed an I-130 sibling petition for your mom or dad in 1997 and you were under 21, then you will be considered as having an “I-130 visa petition filed on your behalf.” Take note that the law only states that a petition or labor certification has to be filed, it does not even need to be approved.

The U.S. Citizen spouse files the I-130 Immigrant Petition and you simultaneously file the I-485 Adjustment of Status application, but unlike the typical marriage case, you also have to file this together with Supplement A to the I-485 with an extra $1000 fee. All basic documents that go along with a marriage case should be filed, but in addition to that, proof that you were a beneficiary of a labor certification or immigrant petition should also be included, such a copy of an I-130 receipt or approval notice with a January 14, 1998 receipt date or earlier, or a labor certification receipt proof on those dates.

Beneficiary of a Labor Certification or Visa Petition Filed After January 14, 1998, but on or before April 30, 2001

Beneficiaries of a labor certification or visa petition filed on their behalf after January 14, 1998 but on or before April 30, 2001 can also get a green card through INA § 245(i) through marriage to a U.S. Citizen but only if they were physically present in the U.S. on December 21, 2000. So in addition to the forms and fees of a typical marriage-based green card case, proof that you were the beneficiary of a petition or labor certification filed on or before April 30, 2001 plus proof that you were here on December 21, 2000 should be submitted. You don’t have to have a document with December 21, 2000 specifically on it. School records, tax returns, driver’s licenses, pay stubs, utility bills, insurance documents, bank statements etc. with a 2000 and 2001 date would suffice, as long as it can be implied based on those that you were here on December 21, 2000. Supplement A to I-485 plus the extra $1000 fee should also be included.

245(i)

The two scenarios described above falls under the Immigration and Nationality Act (INA) § 245(i). Immigration lawyers, judges, officers, in dealing with people who crossed the border in marriage to U.S. citizen cases, simply ask if he or she “has 245(i)”. It is a shortcut way of asking whether you are a beneficiary of a petition filed on or before January 14, 1998, or the beneficiary of a petition filed on or before April 30, 2001 who also meets the December 14, 2000 physical presence requirement.

Simple Examples

For all examples, B is the foreigner who enters without inspection and eventually gets married to a US Citizen.

1. Can Get a Green Card Through Marriage

a. U.S. Citizen Brother files an I-130 petition for B brother in 1996. B crosses the Mexican border in 1997 without inspection. B marries a US Citizen in 2009. In this case, Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before January 14, 1998.

b. B crosses the Mexican border in 1997 without inspection. U.S. Citizen Brother files an I-130 petition for B in March 2001. B marries a U.S. Citizen in 2009. Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before April 30, 2001 and was physically present here on December 21, 2000.

c. U.S. Citizen Brother files an I-130 petition for B in November 1997. B crosses the Mexican border without inspection in January 1998. B married a U.S. Citizen in January 2009. Section 245(i) protects B. B can apply for a green card. B was the beneficiary of a petition filed on or before January 14, 1998, thus no need to show December 21, 2000 physical presence.

2. Can’t Get a Green Card in the U.S. Even Through Marriage

a. U.S. Citizen Brother files an I-130 petition for B in January 1999. B illegally crosses the border on January 2001. B marries a U.S. Citizen in January 2009. Section 245(i) does not protect B. B cannot apply for a green card. B was the beneficiary of a petition filed after January 14, 1998 but on or before April 30, 2001, but B does not have physical presence in the U.S on December 21, 2000.

b. B crosses the Mexican border without inspection in 1995. B married a U.S. Citizen in January 2009. Nobody ever petitioned for B. Section 245(i) does not protect B. B cannot get a green card through marriage.

c. B crosses the Mexican border without inspection in 1995. B’s U.S. Citizen brother files an I-130 petition for him on May 1, 2001. B marries a U.S. Citizen in 2009. Section 245(i) does not protect B. B cannot get a green card through marriage. The I-130 was filed after April 30, 2001.

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The Cap

H-1B petitions per year are capped at 65,000, with an extra 20,000 for those who are petitioning someone with a U.S. earned master’s or higher degree. These cap numbers only apply to initial H-1B filings. Thus, H-1B extensions and transfers are not subject to the cap. April 1 of each year is the earliest that an H-1B petitioner can file an initial cap-subject filing. A few years ago, this quota was filled on the first day. Applications outnumbered the quota. The US Citizenship and Icemmigration Service (USCIS) resorted to a lottery system. Thus an employer may have filed at the earliest possible time and still got rejected. This year, the quote was filled by July, merely two months from April 1. A lot of people are thus wondering if there is anyway an employer can file an initial H-1B petition without having to wait for April 1, 2013.

Cap-Exempt

Other than extensions and transfers, there are other ways where a petitioner gets exempted from the cap. A beneficiary of employment petitions from an institution of higher education, or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the cap. Thus, for these employers, H-1B petitions could be filed all year round, regardless of whether the cap is closed.

Institution of Higher Education

By law, an institution of higher education is defined as one which: 1) admits students who have completed secondary education; 2) is licensed to provide education beyond secondary school; 3) provides education programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees; 4) is a public or nonprofit institution; and 5) is accredited or has been granted pre-accreditation status by a recognized accrediting agency. Each of these elements should be met to be cap-exempt.

Primary or Secondary Education Schools

Based on statutory language and legislative history on the definition of “institutions of higher education,” primary or secondary education schools are not within this definition, and if the argument for making these schools cap-exempt is solely based on including them within the definition of an “institution of higher education,” the USCIS will not find the petition cap-exempt.

Related or Affiliated Nonprofit Entity

However, primary or secondary schools can still meet the cap-exempt requirement through the second prong of the exemption category, that of the “related or affiliated nonprofit entity” (with an institution of higher education).

In filing the H-1B cap-exempt petition, the cover letter should demonstrate how the petition is cap-exempt by explaining how the petitioner, beneficiary, line of work, and how they fit the exemption clause and the entities covered. Citing specific language from two important documents on this issue, the 2006 Aytes Memo on H-1B Cap Exemption and the Administrative Appeals Office (AAO) 2006 Texas decision (EAC 06 216 52028) is a must in arguing whether the petitioner is cap-exempt, especially if one is using the “related or affiliated” argument.

The AAO case mentioned (2006 EAC 06 216 52028) has been one of the most cited sources for “related or affiliated” cap-exempt based H-1B petitions. This case addressed the issue of whether a Texas nonprofit public school district as the petitioner was cap exempt. The USCIS in Vermont initially denied the case and one of the grounds was that the petition was subject to the cap. After appeal, the AAO granted the H-1B, finding that the school’s Teachertrak program is related or affiliated with an institution of higher education. The AAO provided citable language, stating that in order to demonstrate that the petitioner is an affiliated or related nonprofit entity, it should show one or more of the following: a) shared ownership or control by the same board or federation; b) the petitioner is operated by an institution of higher education; or; c) the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The AAO found that the petitioner in this case met the third prong, that of a member, branch, cooperative, or subsidiary, and thus made a finding that it was related or affiliated with an institution of higher education.

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On July 20, 2012, the Board of Immigration Appeals (BIA) held that K-4 visa holders could only adjust status based on the I-130 filed by the K visa petitioner, and not on the basis of her own subsequent marriage to a U.S. Citizen.

In Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012), the respondent came to the U.S. with K-4 visa as a derivative of her mother’s K-3 visa (as the spouse of a United States citizen).  Her mother adjusted her status to that of a lawful permanent resident based on her marriage to the K visa petitioner (U.S. Citizen husband). The respondent also sought to adjust her status based on the visa petition filed on her behalf by the K visa petitioner (Respondent’s step-father).  However, the I-130 petition was denied as a result of the Respondent’s failure to attend the interview. Later, she married her U.S. citizen husband, and she sought to adjust her status again based on marriage to a U.S. citizen.  However, the Immigration Judge denied her adjustment application because she is ineligible to adjust her status on any basis other than I-130 filed by the K visa petitioner (her step-father in instant case).

The issue was whether a derivative of a K visa (K-4 visa holder) may adjust her status to that of a lawful permanent resident based on her own subsequent marriage to a U.S. citizen.  The BIA concluded that the statute clearly bars the adjustment of K visa derivative through a different petition.  The BIA held that “if the respondent were correct that a K visa derivative beneficiary is eligible to adjust through a different petitioner, then a K visa derivative would be in a better position than the principal K visa holder.”  The BIA also added that they cannot presume that one type of petitioner may be substituted for another in order to make an alien eligible for adjustment of status.

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Two of the elements that a potential naturalization applicant should meet are the continuous residence and physical presence requirements. If you obtained your permanent residency through marriage, the residency requirement is three years, assuming you are still living with your spouse. If you obtained your permanent residency through other means, such as employment or through a different family member, then the residency requirement is five years. You should then be physically present in the U.S. for at least one-half of the last five years (or one-half of the last three years if you got your green card through marriage) before applying for naturalization.

An absence between six months and one year during those last three or five years raises a rebuttable presumption that continuity of residence has been interrupted. INA § 316(b). Thus, if you’ve had trips abroad which lasted between six months and one year, even though you meet the physical presence requirement, the continuity of residence requirement might have been disrupted.

You should be able to properly document your trips and reasons for such when you apply for naturalization, and explain this at your interview, to rebut the presumption of disruption.

Some factors which may establish continuity of residence as stated in 8 C.F.R. § 316.5(c)(1)(ii) include:

1. Not terminating employment in the U.S.
2. Presence of immediate family in the U.S.
3. Retention of full access to a U.S. home, and
4. Not obtaining employment abroad.

Permanent residents who studied abroad with trips between six months and a year can also rebut this presumption. Li v. Chertoff, 490 F.Supp.2d 130 (D.Mass.2007), holds that study abroad does not result in abandonment of residency. Our firm recently represented an Indian client with this issue, and he was able to naturalize. (Click Here for the Success Story). We also cited this case for another client of ours whose husband was the one who studied abroad (Click Here for the Success Story), in which she, at that time the permanent resident, accompanied her husband.

Feel free to post questions below or call our office.

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On June 15, 2012, the Secretary of DHS, Janet Napolitano, issued a memorandum on new prosecutorial discretion standards pertaining to certain illegal aliens. She started by stating that immigrants who were illegally brought to the United States as children “lacked the intent to violate the law” and pose few national security risks.  If the individual meets the following criteria, that person will not be deported or removed from the United States as a result of the prosecutorial discretion.

• Came to the United States under the age of sixteen;
• Has continuously resided in the United States for a least five years preceding the date of this memorandum and is present  in the United States on the date of this memorandum;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Is not above the age of thirty.

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

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The July 2012 Visa Bulletin is out, and please be informed that the EB2 Category is not current anymore for Mexico, Philippines, and “Other Countries”. India and China actually have an “unavailable” priority date and it will likely be “unavailable” until the October 2012 Visa Bulletin comes out.  Whereas other countries including the Philippines and Mexico have always been current on the EB2 category, now, based on the visa bulletin for July 2012, the priority date is January 1, 2009. This means that for Mexico, Philippines, and other countries, even if EB2 labor certifications are approved, the I-140 could not be filed simultaneous to the I-485 adjustment of status application. Even if the I-140 is approved, with the priority date listed as 2009, it may take close to 3 years before one can even file the adjustment of status application. For China and India, even those with I-140s approved and priority dates of 2008, 2009, and 2010 could not even file I-485s until the visa numbers become available, and their priority dates current.  Thus, it is very important to maintain non-immigrant status until the priority date becomes current again.

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