Gap in Employment and Lawful Status in the US if DACA and EAD are not Renewed Before Their Expiration

May 23rd, 2017

An applicant for renewal of Deferred Action for Childhood Arrival (DACA) status and employment authorization (EAD) will incur a gap in lawful presence in the US if his or her DACA and EAD are not renewed before his or her current status expires.

Timely filed applications for renewal of DACA and the EAD do not provide for an automatic extension of lawful presence and work authorization in the US, respectively. In other words, if there is any gap between the expiration of an applicant’s first EAD and the approval his or her renewed EAD under DACA, then the applicant won’t have authorization to work during this gap.

Also, the applicant should be aware that if his or her current DACA status expires before his or her renewal is approved, then the applicant will accumulate unlawful presence in the US if he or she is over 18. Once the applicant accrues more than 180 days of unlawful presence, then if the applicant departs the US he or she cannot reenter for three years (although there are certain waivers available). Also, once the applicant accrues more than one year of unlawful presence, then he or she would be barred for ten years if he or she departed the US (with exceptions). It should be noted that many applicants for DACA would have already accrued the unlawful presence bar before initially filing for DACA.

Will Trump’s Recent Conciliatory Speech on Islam Affect Travel Ban Decision?

May 22nd, 2017

This weekend, Trump gave a speech in Saudi Arabia on unifying the world against radical Islamist terrorism and was quite conciliatory and laudatory toward Muslims and Islam. While such an attitude is highly welcomed, it should be noted that it was full of platitudes and facts that should have been made clear during his campaign, such as the many achievements, including cultural and scientific, in the long history of Islam, and the fact that radicalism does not define being Muslim.

It will be interesting to see how his new stance and more positive statements affect the travel ban decision before the appeals courts in the Fourth and Ninth Circuits. The plaintiffs have made the argument that the court should look behind the “facially neutral” statute to statements made by Trump in determining whether there was unconstitutional animus in devising these bans. Does the fact that he made such a speech after the issuance of the travel ban make a difference?

The final burning question is whether Trump will revoke the bans or decide to forgo an appeal to the US Supreme Court of any decisions invaliding the bans. If he is true to his words about most Muslims being law-abiding, then he must do one or the other.

USCIS Denies Downgraded EB-3 I-140 Petition and Revokes EB-2 for Chinese H-1B

May 19th, 2017

An H-1B worker from China called to inform me that USCIS has denied his company’s Form I-140 immigrant visa petition to downgrade from his approved Form I-140 petition and also revoked the company’s first I-140 EB-2 petition on his behalf. USCIS claimed that he did not have the requisite education, among other things. His current H-1B status will be valid until 2019. This situation must be evaluated under the high skilled worker rule published in January 2017 regarding the retention of priority dates and validity of I-140s later revoked. In this case, if the Chinese H-1B’s I-140 remains valid for H-1B extension purposes, then he can restart the PERM labor certification process, possibly retain the priority date, and not worry about extending his H-1B status again until his priority date becomes current.

EB1 for China and India Retrogresses in June 2017 until October 2017

May 11th, 2017

The US Department of State’s June 2017 Visa Bulletin shows EB-1 final action dates retrogressing for China and India until this October. However, the filing dates remain current. Hopefully, USCIS will continue to allow those from India and China to file I-485 applications to file to adjust status pursuant to an EB-1A extraordinary ability or EB-1B outstanding research petition. This will provide them with status in the US, although not an approval.

Cap Gap for F1 Students Without an H-1B Rejection or Decision

May 8th, 2017

On May 3, 2017, USCIS announced that it had completed selecting the H-1B petitions for the lottery and that the rejected petitions would begin to be returned. During this period, for those cases where there has been no receipt or rejected petition, F-1 students may continue to obtain an automatic extension of their optional practical training (OPT) employment authorization documents (EAD) from the H-1B cap-gap extension until the rejected petition is received. Once received, the 60-day grace period kicks in from the date of the rejection notice or their program end date, whichever is later.

If an H-1B petition is selected, then the F-1’s EAD is only automatically extended through October 1, 2017, and not until the H-1B is approved. Therefore, if the F-1 student is eligible for a STEM OPT extension, he or she should apply for it.

Application of 60-Day Grace Period for Laid Off H-1B Worker

May 4th, 2017

In January 2017, the Department of Homeland Security’s (DHS) published final rule became effective providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. One of the benefits of this rule was to grant up to a 60-day grace period to laid off H-1B, E, L and O nonimmigrant workers so that they could try to find H-1B or other employment or other ways to remain in the country in lawful status.

Recently, I was contacted by a foreign national who was laid off by her H-1B employer and she filed an I-539 to change her status from H-1B to H-4 during the 60-day period. She now has a new offer of H-1B employment. The new employer would not be able to file the H-1B petition until after the 60-day grace period and she wants to know if she is eligible for a change of employer H-1B petition so that she will not have to depart the US to restart in H-1B status. Under the new rule, she cannot obtain a change of employer petition in the US, but she does have other options, which are as follows:

1) File the H-1B petition for consular processing, meaning that she will have to depart and reenter the US. She would not need a new H-1B visa if she has current H-1B visa that will be valid when she wants to reenter.
2) Wait until the I-539 application to change her status to H-4 is approved. Then, the employer could file the H-1B petition for her to change her status from H-4 to H-1B in the US and she would have to wait for the new H-1B petition to be approved before she could start working in H-1B status.

If USCIS starts approving H-1B petitions quickly, even without premium processing, which has been temporarily suspended, then she may be able to work sooner than later. Just yesterday I received an H-1B extension petition approval that USCIS processed in 29 days.

Immigration Judge Finds Racial Profiling in Detention Case

May 2nd, 2017

The Atlanta Journal-Constitution reported on April 28, 2017, that an immigration judge (IJ) in Atlanta found unconstitutional racial profiling in an immigration detention case in ruling against US Immigration and Customs Enforcement (ICE) agents. The IJ held that two ICE agents committed “egregious” racial profiling when arresting a man walking from his apartment to catch a ride to work, and that the US Department of Homeland (DHS) attorneys committed “willful misconduct” by advising the agents to ignore the IJ’s subpoena. See

US ICE agents arrested and took into custody Osvaldo Menese Chavez on March 6, 2017, as he walked away from his apartment complex to get a ride to work. DHS sought to deport Chavez on grounds he is an unauthorized immigrant. The ICE agents said that they were at Chavez’s location to arrest another individual. The agents asked to speak with Chavez because he looked like the other suspect and when he tried to run away they arrested him. The IJ noted at the initial court hearing that the agents had used similar reasons to support its other detentions. The IJ then asked DHS to bring the officers to court to testify but the DHS attorneys instructed the agents not to appear and refused to bring the officers to court.

The IJ held that DHS’s conduct thwarted Chavez’ ability to make his case and found the agents’ conduct to be an “egregious violation” of the Fourth Amendment’s protection against unreasonable searches and seizures. “The fact that this judge was so offended by the government’s conduct sends a strong message. It says no one is above the Constitution,” said AILA member Carolina Antonini, who teaches immigration law at Georgia State University.