Monthly Archives: March 2013

DACA Applicants Getting Creative With Proving Presence in the U.S.

favoritesIt’s not always easy to prove your location for a particular period of time, much less where you were on a particular day. But those are exactly the challenges faced by young people applying for a work permit and temporary permission to remain in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program.

To be DACA-eligible, they need to prove two types of presence in the United States:

  • continuous residence since June 15, 2007 up to one’s DACA application date (excluding brief, casual, and innocent departures), and
  • physical presence in the U.S. on June 15, 2012, and also at the time of applying for deferred action.

The standard advice from lawyers like me is to come up with things like school, employment, and dental records. But trust the younger, Internet savvy applicants to come up with more creative forms of evidence, such as:

  • Facebook check-ins
  • Tweets
  • Traffic and speeding tickets
  • Netflix records, and
  • Restaurant receipts.

The good news is, U.S. Citizenship and Immigration Services (USCIS) seems to be just fine with considering these unusual forms of proof. It’s all detailed in this article from ABC News: “Unusual DACA Documentation Includes Speeding Tickets, Netflix, and Facebook.”

For more information on DACA eligibility and application requirements, see the “Deferred Action for Childhood Arrivals (DACA)” section of Nolo’s website.

Countdown to Filing Time for New H-1Bs!

traffic_lightEvery year, U.S. Citizenship and Immigration Services (USCIS) opens up the filing period during which employers can submit petitions for new H-1B workers . . . and every year, the window of opportunity closes very soon after. This year, USCIS will begin accepting petitions for workers who are subject to the fiscal year (FY) 2014 cap on Monday, April 1, 2013.

The reason this timing is so important is that only  65,000 new H-1B visas (or status changes) can be given out per year, unless the worker falls into an exempt category. And of those 65,000, up to 6,800 are set aside for H-1B applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

The most important exemption from this cap applies to the first 20,000 H-1B petitions filed for workers who have U.S. master’s degree or higher. Other widely used exemptions are available to H-1B applicants who will work at either institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

Even with the exemptions, there is stiff competition for those 65,000 spots — more demand than supply. In fact, USCIS expects to receive more than 65,000 petitions within less than a week, by April 5, 2013. The agency will notify the public as soon as it has received 65,000 petitions subject to the cap, and reject petitions submitted afterward. For any petitions that come in over the 65,000 but before USCIS’s announcement cutting off filings, USCIS plans to use a lottery system to select which ones will be processed.

USCIS is also making a temporary change to its premium processing service. Petitioners may still request premium processing, but they won’t receive a USCIS decision within the normal 15-day period. Instead, USCIS will begin counting the 15-day promised speedy processing period starting on April 15.

One of the most important topics to consider if you are hoping to petition for or get a job as an H-1B worker is whether the cap will be an issue, or whether some exemption or alternative is available. For details on this, see Nolo’s article, “When the H-1Bs Run Out: Alternative Visas and Strategies.”

And for the USCIS press release on this topic and other information on H-1B visas, see http://www.uscis.gov/h-1b_count.

Watch Out for Visa Categories With Expiration Dates

eagleOne of the perennially difficult things about visas to the United States (both temporary and permanent ones) is that many of the categories are not written into the law in stone, but come with expiration dates. If Congress fails to take action to renew the visa category when it sunsets, no more visa category.

That’s bad luck not only for anyone thinking of applying for the visa in question, but typically for anyone who isn’t all the way through the system by the category’s expiration date. Applicants who haven’t either adjusted or changed their status while living in the U.S. or obtained a visa from a U.S. consulate overseas and used it to enter the United States will be stopped in their tracks and refused U.S. status or entry.

In some cases, Congressional renewals seem to happen fairly regularly (if last minute), such as with the R visa for religious workers.  (After reauthorization last fall, the R visa category is now good until September 30, 2015.)

In other cases, however, particularly where the visa was meant to respond to an urgent but not necessarily long-term need, Congress may decide to let the visa category lapse. Such may be the case with the Special Immigrant Visa for Iraqi translators.

This visa (allowing U.S. permanent residence or a green card) has been around only since 2008. It authorized issuance of 5,000 immigrant visas per year through September of 2013 (the government’s fiscal year end) to Iraqis who had served the U.S. government in Iraq.

The idea was to protect Iraqis whose work on behalf of the U.S. makes them potential targets of threats and violence by people in their own country.  According to the International Rescue Committee, “an untold number have been kidnapped or killed.” The trouble is, according to the IRC, the threats have continued after the 2011 departure of U.S. troops from Iraq, and not everyone who qualifies for a visa in this category has succeeded in getting one.

Okay Congress, you’ve got six months to act . . . .