NEW COURT DECISION ON DACA. WHAT DOES IT MEAN FOR DACA RECIPIENTS?

This week, another federal court told the Trump Administration it acted without legal basis when it closed down DACA.  In this case, the ruling of the federal judge, if it stands, will require the U.S. Department of Homeland Security (DHS) to re-open DACA to new applicants, in addition to renewing status for current DACA holders.

What does this newest court decision mean for those with DACA now or those who would be eligible?  Here's some background on where DACA stands now and a brief explanation of how this decision will change things:

On September 5, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5^th, but a San Francisco judge ordered the government to continue renewals.  The Administration asked the U.S. Supreme Court to expedite its review of the ruling but the Supreme Court refused.  Another judge in New York followed this with a similar ruling against Trump.

This week a third federal judge, Hon. John Bates, based in Washington DC, ruled that Trump failed to provide a reasonable rationale for closing the DACA program.  In addition to ordering DHS to continue renewals, Judge Bates also required it to accept new applications again.  But the judge did give the Trump Administration a chance to provide a different rationale for terminating DACA, suspending his decision for 90 days.

This decision means if the administration fails to provide an acceptable basis for ending DACA in the next 3 months, the USCIS will need to begin accepting new applications as early as August.  Presumably this will include two groups of young immigrants: (1) those who were eligible to apply before, but failed to do so; and (2) those who turn 15 years old and are thus newly eligible.

Those who do not have DACA but who would be eligible to apply under this new ruling should stay tuned for updates on this case and if this ruling stands, apply for DACA as soon as permitted.

USCIS ACCEPTING DACA RENEWALS AGAIN. WHO CAN APPLY AND WHEN?

The U.S. Citizenship and Immigration Service (USCIS) announced on Saturday January 13^th that DACA renewal applications are now being accepted in response to the federal court order last week requiring them to do so.

The notice from USCIS reads:

Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA.  Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017. 

What this means is that persons who were previously granted deferred action under DACA may request renewal.  They do so by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee.

While the announcement is not entirely clear on this, it appears that those who have DACA now can file for a renewal if their application expires less than 150 days from now.  It’s not clear whether USCIS will accept renewal applications from those whose DACA expires more than 150 days from now.  See FAQs from the National Immigrant Law Center.  https://www.nilc.org/issues/daca/faq-uscis-accepting-daca-renewal-applications/

Those who previously received DACA but their DACA expired after September 5, 2016 can also file a DACA request as a renewal request.  However, persons whose DACA expired before September 5, 2016, cannot renew under this announcement.  

No Right to Travel.

USCIS will not accept or approve requests for permission to travel outside the country known as “advance parole”, which was previously available to DACA recipients. No one with DACA should travel outside the U.S., unless there’s a future change in the law.

No New Applications.

USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.  This bars from relief those who have turned 15 years old since September 5, 2017 and would have been eligible had the original DACA Executive Order remained in place.  It also bars those who never applied earlier for other reasons.

Response to Judge’s order

The Trump Administration took this action because it was required by Hon. William Alsup, a federal judge in San Francisco.  Judge Alsup’s order on January 9^th ruled that Trump’s decision to cancel DACA may have been improper and temporarily required the Administration to continue to renew DACA for those who had that status.  It is likely the Trump Administration will appeal the order to the Ninth Circuit and, if necessary, to the U.S. Supreme Court.  One of those courts could rescind Judge Alsup’s order and that would likely result in USCIS closing down DACA completely again.  Also, this order is merely a preliminary injunction and so further proceedings in the District Court may result in the order being lifted.

Who Should Apply?

Persons whose DACA expires in the next five months would be wise to apply to renew their status. Likewise, persons should apply who allowed their status to lapse after September 5, 2016 and were barred from re-applying by the Trump Administration’s cancellation of DACA.

The passage of Congressional legislation such as the DREAM Act of 2017 would be far preferable to the status quo as it would provide deportation relief to far more people on a legislative basis and create a path to permanent residence.  For a summary of that bill, go to: https://www.congress.gov/bill/115th-congress/senate-bill/1615.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

VISA OPTIONS IF YOU’RE TOO LATE FOR AN H1B VISA .

As predicted, within days, the visa quota for the H1b professional visa was used up in April this year. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap. 

So what are your options if you or your employee have gotten your H1b application in time?  What if you are not eligible for an H1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 8 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.