Deferred Action Summary

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What is Deferred Action?

Deferred Action is a temporary measure that allows eligible immigrants to delay or defer removal action from the United States. Under this initiative, deferred action is granted for a two-year period, after which recipients may request a renewal. Under existing regulations, qualified applicants for deferred action may receive an Employment Authorization Document (EAD). Deferred action is not amnesty or immunity, and does not grant lawful permanent resident status or a path to citizenship. 

Deferred Action Guidelines:

According to the USCIS, individuals who can demonstrate that they meet the guidelines listed on official government sources, such as the USCIS, or the Department of Homeland Security, may request consideration of the deferred action for childhood arrivals.  Guidelines include:

  • Were under the age of 31 as of June 15, 2012
  • Came to the United States before reaching your 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 your request for consideration of deferred action with USCIS
  • Entered without inspection before June 15, 2012, or your 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
  • 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

Supporting Evidence: When filing for Deferred Action, documentation will need to be provided that proves and supports the individual qualifies and meets the guidelines as stated above. Some examples of documentation that may be submitted as evidence includes:

  • Passport with admission stamp or passport entries
  • Travel Records
  • Birth Certificate
  • Financial records (Deeds, mortgages, rental agreement, bank transcripts, tax receipts)
  • Medical records,
  • School records from US schools attended (Transcripts, Report card etc)
  • School ID with photo
  • US government immigration or other documents with your name and photo
  • Employment records (pay stubs, W-2 forms etc.)
  • Military records
  • Military ID with Photo
  • U.S. high school Diploma or certificate of completion
  • U.S.  GED certificate
  • Social security card
  • Automobile License receipts or registration

Forms for application for deferred action:

Individuals may request deferred action by submitting the forms noted below, along with supporting documentation to USCIS. U.S. Citizenship and Immigration Services (USCIS) recently published forms and instructions for the deferred action program, and began accepting applications on August 15th.  To request consideration of deferred action for childhood arrivals from USCIS, you must submit the following to USIS:

  • Form I-821D (Consideration of Deferred Action for Childhood Arrivals) The form must be completed properly and signed
  •  Form I-765 (Application for Employment Authorization)
  •  Form I-765WS, Worksheet, establishing your economic need for employment
  •  Filing fee to the USCIS $465 ( $85 background check, & $380 for EAD )
  •  Along with forms, submit all the required documentation to support your request

If you fail to submit all of the above, the USCIS will not consider your request for deferred action.  There are no fee waivers available for the deferred action for childhood arrivals process, and fee exemptions are available in very limited circumstances.  Also, if you knowingly make a misrepresentation or knowingly fail to disclose facts in your request for deferred action , you case may be treated as an immigration enforcement issue subject to criminal prosecution/ and or removal from the United States.

Application Considerations:

Individuals with extenuating circumstances, may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case. USCIS will conduct a background check when reviewing a request for consideration for deferred action for childhood arrivals.  Potential applicants who are concerned about their individual circumstances such as the effect of a minor criminal record or other factors such as detention or appeals of removal cases can contact the Law Enforcement Support Center hotline: 1-855-448-6903 or the ICE Office of the Public Advocate hotline at 1-888-351-4024, or review their options with an immigration lawyer.

The USCIS recently cautioned in a press release, that immigration scams have already arisen regarding the deferred action for childhood arrivals process. For example: There is no expedited processing for deferred action. Practitioners should not be promising to provide faster services for a fee.  The agency warns young immigrants to be aware of the potential for being defrauded by unauthorized practitioners of immigration law and advises those who choose to seek legal assistance, to find a licensed attorney familiar with deferred action guidelines or utilize accredited immigration law services from reputable sources.

Requests and supporting documentation may not be submitted in person or online, but instead must be mailed to the USCIS “lockbox” assigned to the state in which the applicant resides.

Once USCIS receives and has determined all the necessary forms have been satisfactorily  completed , the required fee has been submitted along with and evidence and supporting documents, then USCIS will send the individual a receipt notice, followed by an appointment notice to visit an Application Support Center (ASC) to have individual fingerprints taken.  Make sure to read and follow the directions in the notice, as failure to attend the scheduled biometrics appointment may delay processing of your request, or may result in a denial of your request.

USCIS may request additional information or evidence, or request that the applicant appear in a USCIS office.  USCIS will notify you of its determination in writing.

Additional information may be obtained from U.S. Citizenship and Immigration Services (USCIS) by calling (800) 375-5283 or visiting  www.uscis.gov/childhoodarrivals

The Visa Bulletin: Visa Availability & Priority Dates

 

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a “Green Card”) each year.

Immigrant visas available to “immediate relatives” of U.S. Citizens are unlimited and are always available for issuance. Immediate relatives include parents of a U.S. Citizen, spouses of a U.S. Citizen and, unmarried children under the age of 21 of a U.S. Citizen.

Immigrant visa numbers for individuals in a “preference category” are limited, and are not immediately available

Individuals who want to become permanent residents (possessing a “Green Card”) through their qualified family member, employment, or a special category will generally be classified in categories based upon a preference system.

Except for immediate relatives of a U.S. Citizen who are given the highest immigration priority and a few other exceptions, Congress has set a finite number of visas that can be used each year for each category of immigrants.

Family-Based Visas

Some relatives of U.S. Citizens, known as immediate relatives, do not have to wait for an immigrant visa to become available. There is no limit to the number of immigrant visas that can be utilized in this category in a particular year. Immediate relatives include:

  • Parents of a U.S. Citizen
  • Spouses of a U.S. Citizen
  • Unmarried children under the age of 21 of a U.S. Citizen

Note: U.S. Citizens must be at least 21 years old to apply for their parents.

The qualified relatives of a U.S. Citizen or a permanent resident in the remaining family-based categories must wait for an immigrant visa to become available before they can apply for permanent residency (a “Green Card”).

Employment-Based Visas

People who want to become permanent residents (possessing a “Green Card”) based upon their employment or a job offer may apply for permanent residence when an immigrant visa number becomes available according to the employment-based preferences.

The U.S. Department of State is the agency that distributes visa numbers. Family sponsored preference categories are limited to 226,000 per year and employment based preference visas are limited to 140,000 per year.  In addition, there are limits to the percentage of visas that can be allotted to each country.

Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date. The priority date (explained below) is used to determine an individual’s place in line in the visa queue.  When the priority date becomes current, the individual will be eligible to apply for an immigrant visa.

Your priority date can be found on Form I-797, Notice of Action, for the petition filed for you.  The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on:

  • The demand for and supply of immigrant visa numbers
  • The per country visa limitations
  • The number of visas allocated for your particular preference category

Priority Dates for Family Sponsored Preference Cases

For family sponsored immigration, the priority date is the date that the petition is properly filed with U.S. Citizenship and Immigration Services (USCIS).  A properly filed petition contains the required signature(s), the filing fee and any supporting documentation required at the time of filing.

Priority Dates for Employment Based Preference Cases

The priority date for an immigrant petition that is based on employment is either:

  • The date the petition was properly filed with USCIS, or
  • The date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required)

Pending Employment-Based Form I-485 Inventory

A visa must be available before a person can obtain an employment-based green card. Currently, about 234,000 people have applied for employment-based adjustment of status (green card) in the United States and are waiting for a visa.  Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately.  How long you wait for a visa depends on your priority date, preference category, and the country your visa will be charged to (usually your country of birth).

U.S. Department of State Visa Bulletin

The U.S. Department of State publishes a monthly report of visa availability referred to as the “Visa Bulletin.” The monthly Visa Bulletin serves as a guide for issuing visas at U.S. consulates and embassies. USCIS also uses this guide to determine whether a Form I-485, Application to Register Permanent Residence or Adjust Status, may be accepted or adjudicated, because a visa must be available both at the time a person files Form I-485 and at the time of the final decision on the application.

Check Your Place in the Visa Queue

The Visa Bulletin allows individuals to check their place in the immigrant visa queue.  The Visa Bulletin provides the cut-off dates for the different categories and countries for family, employment and diversity visas.

When Visa Numbers Are Available

If demand is less than supply in a given preference visa category and country of birth (“or country of visa changeability”), then immigrant visas are current.  Visas are available when the chart designation is “C” for current. This means that immigrant visa numbers are available for all qualified overseas applicants and adjustment applicants in that particular visa preference category and country of birth.

When Visa Numbers Are Not Available

If the demand is more than supply for a particular visa category or foreign state, and cannot be satisfied within the allowable limits, the Visa Office considers the preference visa category or foreign state “oversubscribed” and must impose a cut-off date.

In this instance, only overseas and adjustment applicants who have a priority date earlier than the date listed in the Visa Bulletin may be given an immigrant visa number. A visa is available to an individual, therefore, if his/her priority date is earlier than the date listed for that visa category and country.  Visas are unavailable when the chart designation is “U” for unavailable.

Visa Retrogression

Sometimes, a priority date that is current one month will not be current the next month.  This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month.  Visa retrogression most often occurs when the annual limit has been reached.  When the new fiscal year begins on October 1, a new supply of visa numbers is available and usually, but not always, brings back the dates to where they were before retrogression.

Cross-Chargeability

Employment based cases are amenable to visa cross-chargeability provisions for principal applicants (that may have a visa retrogressed priority date), who have spouses from a country for which a visa cut-off date may provide a visa allocation

See the latest Visa Bulletin for September www.travel.state.gov/visa/bulletin/bulletin_5759.html

 

H-1B Cap Gap Information

 

The H-1B non immigrant category is a temporary employment classification reserved for professionals who will be employed in a “specialty occupation” that is initially valid for three years and may be renewed for a maximum of six years (although law permits extensions beyond six years under limited circumstances).

“Specialty occupations” are defined by the USCIS as positions requiring theoretical and practical application of specialized knowledge for performance of the employment duties.  This position must also require a minimum of a Bachelor degree or higher to qualify as a specialty occupation.

A United States employer must submit an H-1B Petition to the USCIS (United States Citizenship & Immigration Services) for approval of the H-1B position. The limit on the number of H-1B positions approved is called the H-1B cap, also called the H-1B quota. There is an annual cap of 65,000 H-1B visas available to foreign nationals during each fiscal year.  An additional 20,000 H-1B visas are allotted to foreign nationals holding advanced degrees (masters degree or higher). In addition, there is also what is known as “H-1B exempt visas” which have no quota limit, and are filed on behalf of H-1B workers who will work at institutions of higher education, related or affiliated nonprofit entities, nonprofit research or government research organizations. Generally H-1B beneficiaries seeking H-1B extensions or H-1B transfers to a new employers are also not subject to the quota.

An employer cannot file an H-1B visa petition which is submitted earlier than six (6) months in advance of the date of the actual need of the employer’s services. The earliest date that an employer can file an H-1B Petition is April 1 of each fiscal year. If the USCIS approves the H-1B Petition, the earliest date that the employee may start his or her approved H-1B employment is October 1 of each fiscal year.

The H-1B Cap can at times be reached quickly, so to ensure the best opportunity of being issued an H-1B visa, it is important to file your H-1B petition as quickly as possible after April 1 of the relevant fiscal year.  As H-1B visas are filed, they are counted against the H-1B cap, and once the limit is reached, no more H-1B petitions may be filed until the next fiscal year.

Cap Gap Extension for F-1 Students who are the subject of an H-1B petition

The H-1B “Cap Gap” occurs when an F-1 student’s status and work authorization expires before they can start their approved H-1B employment on October 1, The “Cap Gap Extension” fills the gap between an eligible F-1 student status and the start of their H-1B status, thus allowing the student to remain in the United States during the “gap” period. Recent changes now allow this cap-gap extension for students who are beneficiaries of properly filed H-1B petitions that are filed while the student’s F-1 duration of status is still in effect, including time during the course of academic study, any authorized periods of OPT (Optional Practice Training), and /or is in their 60 day departing date grace period, and have a pending or approved change of status petition pending with the USCIS that was filed prior to the expiration of their OPT or 60 day grace period.

Once a timely filing has been made, the automatic cap gap extension will begin and will continue until the H-1B process has been completed. In the interim, if the employer followed regulations and filed an H-1B visa petition before the F-1 status of OPT expires, the potential H-1B worker may remain in the U.S. and continue to work while the H-1B is pending and/or is approved, even though their OPT expires at some point during the summer. If the F1 student was not in an authorized period of OPT on the eligibility date for the cap gap extension, the employment authorization would not be extended automatically because it already expired, and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Once a petition has been filed to change to H-1B, the automatic gap extension will begin allowing the foreign national to remain in the U.S. without having to return home to process the visa.  If the H-1B petition is selected and approved, the student’s extension will continue through the 30th of September, and they may begin work on October 1.  If the USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 visa student covered by the automatic cap gap extension because they do not qualify, the student work authorization ends in 10 days and the student will have the usual 60 day grace period from the date of notification of denial, rejection, withdrawal, or revocation of the petition, to prepare for and leave the United States. For denied cases it should be noted that the 60 day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation, or a student whose petition was revoked based on a finding of fraud or misrepresentation. In both of these instances, the 60 day grace period and automatic cap gap extension would not apply and the student would be required to leave the United States immediately.  F-1 students who do not qualify for cap gap extension, and whose period of authorized stay expires before October 1st, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap gap period for status updates regarding the H-1B petition processing. A form I-797, Notice of Action with a valid receipt number will serve as evidence that the petition was filed and accepted. A student must remain in contact with the employer that filed the form I-129 Petition for a non immigrant worker  on the student’s behalf, and with and OIP International Student Advisor.

Of special note: If the student chooses to travel outside the Untied States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Since the H1B petition is presumably for an October 1 or later start date, the student should not travel outside the United States during the cap gap extension if possible. The USCIS will consider a change of status application to be abandoned if the applicant leaves the country where the application remains pending. A change of status petition form F-1 to H-1B filed on behalf of a student with a cap gap extension who departs the U.S. before the application is adjudicated could be denied. For further inforamtion regarding cap gap issues, see updated F&Q’s at:USCIS:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel

Disclaimer: Providing the above general information is to inform the public, and is not intended to be used or taken as legal advise for any individual or situation. Using this blog does not establish an attorney client relationship between you and the Blog/Web Site publisher and is not a substitute for legal advice from a licensed professional attorney. Although the  hiring of an immigration  lawyer is an important decision, this blog is not published for advertising or solicitation purposes

 

Need an immigration attorney?

On behalf of Immigration Law Firm, DiSanto & DiSanto, PLC

There are multiple reasons people hire an immigration attorney to represent them. The main reason, however, is the complexity of legal issues involved in the United States immigration process.  An applicant’s failure to follow the requirements of United States Citizenship and Immigration Service (“USCIS”) and the Immigration and Nationality Act can lead to a denial of any and all benefits, and possibly a referral to the immigration court.

For many individuals the immigration process can seem overwhelming, time consuming, frustrating, and often creates legal questions that they cannot confidently address themselves.  For these and many other reasons, consulting an immigration lawyer is an option to consider when faced with an employment or family related immigration matter.

If you are looking for an immigration attorney and do not know where to start, the following comments are a few things to consider when searching for an attorney to best represent you with your immigration issue.

  • When you begin researching law offices, you may notice some lawyers specialize in immigration law and some list immigration law as just one of multiple types of legal matters they handle. When looking for an immigration attorney, ask how much of their practice is devoted solely to immigration law, and consider whether you want an attorney dedicated part or full time to specializing in immigration law.  A specialized approach to immigration law allows the attorney to more readily stay up to date with the ever changing immigration laws and procedures, so the attorney can focus their expertise solely on immigration law matters. Check with the immigration law firm to see how long they have been in practice and what kind of immigration services they provide.
  • Next, contact your local State Bar to find out if the lawyer you are considering is licensed in good standing, and if the attorney has ever been disciplined by the State Bar. There are also other tools, such as Martindale-Hubbell Peer Review Ratings, that can help you find out what other attorneys think about your potential selection. Martindale Hubbell is one of the most comprehensive directories of reputable lawyers.
  • You may want to ask if the immigration attorney you are considering is a member of AILA (American Immigration Lawyers Association: http://www.aila.org. ) AILA is the only legal association in the United States for immigration attorneys and provides resources and information on the most up to date immigration law and policies.  According to AILA, more than 11,000 immigration lawyers are members of this national association of lawyers and attorneys who teach and practice immigration law.
  • Check online reviews for immigration lawyer reviews, like Avvo.com, as these reviews are made by clients who have personally dealt with a particular attorney.  A good rating and positive reviews on websites like Avvo.com can be reassuring.
  • Call and speak directly with the attorney’s office you are considering and ask questions. You should feel comfortable with this relationship and confident you have made the right decision.
  • Interview the attorney you are considering by meeting for a consultation to discuss your immigration issue. The attorney you choose should be knowledgeable in the area of your particular immigration matter, able to address all of your concerns and questions, and present the options that are the best available to you for a successful outcome.
  • Lastly, due to sensitive information and the volume of documentation and paperwork involved in the immigration process, choose an attorney’s office that has a privacy policy that demonstrates respect and protection of sensitive information involving your immigration case.

Disclaimer: Providing the above general information is to inform the public, and is not intended to be used or taken as legal advise for any individual or situation. Using this blog does not establish an attorney client relationship between you and the Blog/Web Site publisher and is not a substitute for legal advice from a licensed professional attorney. Although the  hiring of an immigration  lawyer is an important decision, this blog is not published for advertising or solicitation purposes.