The Obama administration finally took action on behalf the “dreamers”, individuals who came to the U.S. as children and would have benefit from the failed Dream Act. On June 15 Janet Napolitano, Secretary of Homeland Security, issued a memorandum regarding the dreamers. The memo describes the dreamers as “young people who were brought to this country as children and know only this country as home.”
The memo grants two years of “deferred action” to these individuals. Deferred action will permit the beneficiaries to obtain work authorization. In order to be eligible, an individual must meet the following critera:
1) came to the U.S. under the age of 16;
2) has continuously resided in the US for at least 5 years preceding the date of this memorandum and is present in the U.S. on the date of this memorandum;
3) 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;
4) 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
5) is not above the age of 30
6) must be at least 15 years old.
The memo directs USCIS to begin implementing this process within 60 dys of the date of this memorandum.
On June 11, 2012, USCIS received a sufficient number of petitions to reach the cap for FY 2013. On June 7, 2012, USCIS also received more
than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the
cap going forward.
USCIS continues to accept petitions exempted from the cap.
USCIS updated its count of FY2013 cap-subject H-1B petitions & advanced degree cap-exempt petitions receipted. As of 6/1/12, nearly 55,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 18,700 H-1B petitions for aliens with advanced degrees. This leaves less than 10,000 regular H-1Bs and less than 7,000 advanced degree H-1Bs. Anyone contemplating filing for an H-1B should do it very soon.
Sergio Garcia came to the US with his parents as a young child, and he and his parents are undocumented to this day. In 2009, he graduated from law school, sat for the California bar exam, and passed. The Committee of Bar Examiners in California found that he had the positive moral character required for admission. However, he has yet to be admitted because of his immigration status. Earlier this month, the California Supreme Court agreed to consider whether an undocumented immigrant should be admitted in the state. Garcia’s lawyer contends that neither citizenship or residency is required for applicants to be admitted, and believes that other undocumented immigrants were licensed before bar examiners began asking regularly about candidates’ citizenship.
In an ongoing effort to attract the best and brightest students to the U.S., DHS recently announced an expansion to the STEM (Science, Technology, Engineering and Math) list. Student who graduate with a STEM degree enjoy an additional 17 months of OPT after graduation (for a total of 29 months). The newly added programs include pharmaceutical sciences, econometrics , and quantitative economics.
The Visa Bulletins released by the Department of State for January and February 2012 showed huge jumps forward for retrogressed EB-2 (Employment-Based second preference) cases, making visas available for cases filed on or before January 1, 2010 for Indian and Chinese Nationals. Unfortunately, that gain is about to be lost. Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, announced that he will likely retrogress India and China born EB2 priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. This will bring green card wait times back to nearly 5 years.
Restrictive immigration laws have long caused problems for Silicon Valley. According to Silicon Valley, foreign nationals who come to the U.S. to study often end up starting up companies in their home countries. In most cases, they would prefer to start their businesses here in the U.S., but the immigration process is just to cumbersome and daunting. In response, CIS has expressed a desire to become “more responsive to the fast-changing needs of tech start-ups.” According to CBS News, CIS intends to tap 5 individuals from the private sector to “guide policy and training for officials who make decisions on individual immigration applications.” The goal, CIS says, is “to keep the agency from applying traditional formulas to the unorthodox business models common on the startup scene.” What exactly will be developed remains to be be seen.
When a foreign national employee is seeking to adjust his/her status from nonimmigrant to lawful permanent resident, s/he must prove that s/he always maintained valid nonimmigrant status. The easiest way to prove this, is to show paystubs. If a person lost his/her job, and therefore stopped getting paychecks, s/he failed to maintain status, and will not be permitted to change status within the United States. Of late, the California Service Center has begun to issue RFE’s (Requests for Further Evidence) seeking three, and sometimes even four, paystubs from the employer. As always, the moral of the story is one should always maintain valid status.
A foreign national may apply for lawful permanent residence status (green card), and seek a waiver of the job offer and labor certification requirements, by establishing that his or her admission to permanent residence would be in the National Interest. The applicant must establish that his/her proposed services will be in an area of substantial intrinsic merit and will have a national benefit, and that the alien has some track record of success in his or her field.
So is work in Music in the national interest? In the eyes of USCIS, it may be. In the not-too-distant past, the Vermont Service Center granted a national interest waiver petition for a clarinetist with a Maters Degree in Music and six years of experience as a performer of classical and jazz music and as a teacher of music workshops and programs. The waiver was based on the applicant’s dedicated promotion and performance of works by contemporary American composers, including some written especially for him, and on his documented commitment to making serious music more accessible to low-income urban and rural communities.
Foreign nationals who have demonstrated extraordinary ability in the sciences, arts, education, business or athletics may be able to receive an O visa to work in their area of expertise. By way of example, an art school graduate with an exceptional portfolio might be eligible for an O visa. The period of stay for an O visa is 3 years and incremental extensions are available. P visas are available for performing artists and athletes. An example might include a Salsa Instructor for South America coming to the U.S. to perform in a series of Salsa related events put on by a dance company. These visas require applications to USCIS.