In this issue
- Court Blocks Expanded DACA, DAPA; Obama Administration Appeals
- DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status
- Federal Jury Awards $14 Million to Five Trafficked Indian Guest Workers
- H-2B Cap Reached for First Half of FY 2015
- Preparing for the 2015 U.S. Tax Filing Season
- New Publications and Items of Interest
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 is available here. A February 11 FAQ is available 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.
Federal Jury Awards $14 Million to Five Trafficked Indian Guest Workers
In the first of a series of cases spearheaded by the Southern Poverty Law Center (SPLC) involving several hundred clients, a federal jury awarded five Indian guest workers $14 million in compensatory and punitive damages in a labor trafficking scheme. The cases were divided into five workers per case after a judge did not grant class action status. The SPLC is coordinating a legal collaboration bringing together almost a dozen of law firms and civil rights organizations to represent the workers on a pro bono basis, in what the organization is calling "one of the largest labor trafficking cases in U.S. history."
The workers had each paid recruiters and a lawyer for Signal International, a Gulf Coast marine services company, $10,000 to $20,000 or more to come to the United States on H-2B temporary worker visas after they were promised good jobs, green cards, and eventual permanent residence for themselves and their families. When the workers arrived at Signal shipyards in Pascagoula, Mississippi, they did not receive what they were promised and were forced to pay $1,050 per month to live in isolated, guarded labor camps. The workers, who were born in India, could not have obtained the promised green cards under the backlogged employment-based third preference within the time frame of the H-2B visas. The green card strategy was also incompatible with the temporary H-2B visa. As many as 24 men shared a space the size of a double-wide trailer, SPLC reported. Only Signal's Indian workers were required to live in the company housing. When some tried to find their own housing, they were told they would still be charged the housing fee, to be deducted from their pay. Company employees searched the worker's belongings and threatened those who complained with deportation. Many of the men in this series of cases had sold property or gone deeply into debt to come to the United States, and their families were at risk as a result.
SPLC's co-counsel in this case were Crowell & Moring, LLP; the American Civil Liberties Union; the Asian American Legal Defense and Education Fund; Sahn Ward Coschignano & Baker; and the Louisiana Justice Institute. Alliance of Business Immigration Lawyers (ABIL) member Cyrus Mehta served as an expert witness for the plaintiffs. The immigration group at Fredrikson & Byron, another ABIL member law firm, is contributing its time pro bono to represent other Signal employees in a similar lawsuit.
Additional details of the case are available here. Also see this link.
H-2B Cap Reached for First Half of FY 2015
USCIS has received a sufficient number of petitions to reach the congressionally mandated limit, or cap, of 33,000 on the total number of foreign nationals who may seek a visa or otherwise obtain H-2B status (nonagricultural temporary workers) for the first half of fiscal year (FY) 2015. January 26, 2015 was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2015.
USCIS said that it is rejecting new cap-subject H-2B petitions received after January 26 and that request an employment start date before April 1. No cap numbers from the first half of FY 2015 will be available in the second half of FY 2015, which begins on April 1, 2015. The cap is 33,000 for the second half also.
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap.
For more information on the cap count for H-2B nonimmigrants, Click here.
Preparing for the 2015 U.S. Tax Filing Season
ALL U.S. citizens and resident aliens must file a U.S. individual income tax return, even if they permanently live outside the United States and may not owe any tax because of income exclusion or tax credit. The due date for filing is April 15th, 2015. Read more.
New Publications and Items of Interest
U.S. Citizenship and Immigration Services' (USCIS) Ombudsman's office will hold a teleconference on February 19, 2015, from 2 to 3 pm, on H-1B and H-2 temporary workers and the role of USCIS, the Department of Labor, and the Department of State during the highly compressed time frames required by these petitions. Ombudsman Maria Odom will lead the discussion. Q&A will follow the presentation. To register, send an e-mail with "Employment-Based Programs" in the subject line by February 16 to CISOmbudsman.PublicAffairs@hq.dhs.gov. Teleconference call-in information will be provided upon RSVP.
State challenges to federal enforcement of immigration law.
The Congressional Research Service has published "State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation." The report notes, among other things, that many states' constitutional and statutory claims challenging the federal government on immigration matters have failed in the past. Some of the reasons for failure have included the claims' having involved nonjusticiable "political questions" or that the actions in question were committed to agency discretion by law and thus not reviewable by the courts. The report also describes the challenge brought by over 20 states in 2014 to the recently announced expansion of DACA. The report concludes by exploring how the pending litigation resembles, and differs from, the prior litigation. It is available here.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: