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In the first full month of a new state law, California issued 59,000 driver’s licenses to undocumented applicants – more than half of all driver’s licenses issued in January.
California issued a total of 113,172 non-commercial driver’s licenses in January, a 65 percent jump in the number of licenses issued during the same period last year, according to statistics released by the California Department of Motor Vehicles. Undocumented immigrants represented 52 percent of the total number of drivers who were issued a license last month. Of the 236,000 undocumented immigrants who applied for driver’s licenses, one in four were successful in obtaining them.
The law, AB 60, took effect Jan. 1 and requires the DMV to issue driver’s licenses to applicants who cannot prove lawful presences in the United States. Applicants must verify their identity and California residency based on a list of acceptable foreign and California documents. The driver’s license cards issued under the new law were approved by the Department of Homeland Security in conformance with the federal REAL ID Act. The cards are similar to regular California driver’s licenses, but “Federal Limits Apply” is printed on the front.
Twelve U.S. jurisdictions allow drivers to obtain licenses regardless of immigration status, including California, Colorado, Connecticut, Illinois, Maryland, Nevada, New Mexico, Puerto Rico, Utah, Vermont, Washington and Washington, D.C.
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A rule that will allow spouses of some H-1B employees to obtain work authorization is expected to be finalized in the coming weeks.
The rule is currently under review by the Office of Information and Regulatory Affairs – one of the final steps in the rulemaking process. The OIRA is part of the Office of Management and Budget and coordinates the process of draft rules becoming finalized regulations.
Proposed by the Department of Homeland Security last May, the rule would extend work authorization to some spouses holding H-4 visas, as long as the H-1B principal has started the process of applying for an employment-based green card. The H-1B employee must have an approved I-140 immigrant petition or have extended their authorized stay under the American Competitiveness in the 21st Century Act of 2000 (AC21) beyond the normal six-year period. To extend under AC21, a foreign worker must be the beneficiary of a PERM or I-140 petition pending for at least 365 days, or have an approved I-140.
The substance of the rule is unlikely to change before it becomes final, but forms and procedures have yet to be finalized. The OIRA has already drafted a revised I-765 Application for Employment Authorization for eligible spouses.
After OIRA review, the rule will be published in the Federal Register and given an effective date, most likely 30 or 60 days after publication.
BAL Analysis: The rule is a very positive development for H-1B workers and their families that will also help employers attract and retain H-1B workers. BAL anticipates a high demand when the rule takes effect, and the wave of new applications may coincide with H-1B cap season. DHS estimated that as many as 100,600 H-4 visa holders will be eligible during the first year. Applicants should expect a large turnout and possible delays to the normal 90-day processing time for employment authorization.
A snow and ice storm that pummeled the Mid-Atlantic and South has closed several local U.S. Citizenship and Immigration Services offices.
The Washington, D.C.-area office, the Baltimore District Office and Application Support Center, the Louisville Field Office and Application Support Center and the Nashville Application Support Center are closed today.
Several offices in southeastern locations, including Atlanta, Birmingham, Ala., Greer, S.C., and Charlotte and Raleigh-Durham, N.C., delayed opening until 10 a.m.
Visa applicants who had appointments at offices that are closed are reminded that some appointments are automatically rescheduled, while others require action by the applicant.
Generally, appointments for interviews and for biometrics are automatically rescheduled to the next available appointment, but applicants scheduled for InfoPass or other appointments must reschedule on their own. USCIS has posted information on its website about rescheduling appointments. Application support centers that are closed will take walk-ins when they reopen, but applicants should expect longer lines.
The storm dumped snow and sleet from the Carolinas to Washington, D.C., cut power to hundreds of thousands of customers, closed schools and shut down federal government offices. Originating in Kentucky, the storm is headed for the Northeast. BAL will update clients on subsequent closures.
BAL Analysis: BAL’s Tysons Corner, Va. office is closed today due to the storm, but staff are working remotely. BAL’s Washington, D.C. office is open and operating as normal.
A federal judge in Texas issued a ruling late Monday, temporarily blocking implementation of a key part of the Obama administration’s program to protect roughly 5 million undocumented immigrants from deportation.
In his ruling, U.S. District Court Judge Andrew Hanen said that if the administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program is found to be unlawful once it has already been implemented, states could face “irreparable harm.” They would be faced with the “substantially difficult–if not impossible–task of retracting any benefits or licenses” provided under the program, the judge said.
“This genie would be impossible to put back into the bottle,” he wrote.
The case was brought by 26 states against the administration. The ruling only addressed the issue of whether DAPA and an expansion of the Deferred Action for Childhood Arrivals (DACA) program should be temporarily halted while the lawsuit is pending. The temporary injunction did not address the merits of the states’ case, nor did it cover the administration’s proposed policies related to high-skilled workers.
The Obama administration said Tuesday that it will appeal the decision and issued a statement reaffirming its position that the administration’s actions are legal.
“The Department of Justice, legal scholars, immigration experts, and the district court in Washington, D.C. have determined that the President’s actions are well within his legal authority,” the White House said in a statement, adding, “The district court’s decision wrongly prevents … lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”
Among the noteworthy predictions for employment-based preference categories, the priority cut-off dates for the EB-3 category for China and Rest of World will advance rapidly in the coming months, which will likely cause high demand and a hold or retrogression. This is according to a monthly briefing on Feb. 10 by Charles Oppenheim, the U.S. State Department’s chief of the Visa Control and Reporting Division.
The EB-2 India category, which will jump forward by 16 months in March, is also likely to continue to advance at a moderate pace this fiscal year, although the movement could slow toward the end of the year if upgrades from EB-3 to EB-2 increase. In order to upgrade or downgrade to a different preference category, an employer must file a new I-140 immigrant visa petition on behalf of the foreign applicant who must have an already approved I-140 immigrant visa petition. This allows the foreign national to recapture the old priority date and maintain the same priority date in the new preference category.
For Chinese nationals, the opposite trend is occurring: the EB-3 cut-off date is advancing faster than the EB-2 category, causing many to downgrade from the EB-2 to EB-3 category. The downgrades are likely to cause another jump in the priority date for EB-2 China in April and increase demand in the EB-3 category. As a result of the growing demand, a hold or retrogression in EB-3 China is anticipated at some point in the future, according to Oppenheim. In turn, such corrective action to the EB-3 China priority date and a jump in the EB-2 China category would spur demand for EB-2 China and then impact that cutoff date as well.
A similar trend is likely for EB-3 Rest of World, whose priority date advanced by seven months in February and will move forward five months in March. The rapid advancement could cause a spike in demand that may require a hold or retrogression in the cutoff date.
BAL Analysis: Employers and foreign nationals should consider these trends, particularly the relationship between EB-2 and EB-3 priority date movement, in their business planning for the coming months. The priority date movement does allow many foreign applicants to file for I-485 adjustment of status, which provides various benefits, including the ability to secure employment authorization documents and advanced parole for all applicants. This is true even if the I-485 applications ultimately remain pending for a longer period of time because of priority date retrogression. A pending I-485 cannot be adjudicated if the priority date has retrogressed.
All countries will move forward in the employment-based third preference (EB-3) category for professionals and skilled workers, according to the State Department’s March 2015 Visa Bulletin.
Priority dates for EB-3 Worldwide, Mexico and Philippines will advance by five months to June 1, 2014. Priority dates for EB-3 China and India will move forward more modestly, with China advancing less than two months to Oct. 22, 2011, and India advancing by only 10 days to Jan. 1, 2004.
The priority date for workers in the EB-2 India category, however, will jump forward by a year and four months to Jan. 1, 2007. EB-2 India leapt forward considerably in the February Visa Bulletin as well, after retrogressing by more than four years in the November Visa Bulletin. The priority date for EB-2 China will advance more than five months to Sept. 1, 2010. All other countries will remain current in the EB-2 category.
The EB-1 category will remain current across all countries.
Summary of March 2015 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: Sept. 1, 2010 India: Jan. 1, 2007 All other countries: Current
EB-3 China: Oct. 22, 2011 India: Jan. 1, 2004 Mexico: June 1, 2014 Philippines: June 1, 2014 All other countries: June 1, 2014
The numerical cap on H-2B petitions was reached for the first half of fiscal year 2015 on Jan. 26, U.S. Citizenship and Immigration Services has announced.
This means that USCIS will reject cap-subject H-2B petitions received after Jan. 26 for employment start dates before April 1, 2015. It also means there are no unused numbers from the first half of the fiscal year that can be added to available cap numbers in the second half, which begins April 1.
Congress set a limit of 66,000 on new H-2B petitions for the fiscal year, allocating 33,000 for employment starting during the first half of the fiscal year (Oct. 1, 2014 to March 31, 2015) and 33,000 for employment beginning during the second half (April 1, 2015 to Sept. 30, 2015). Unused cap numbers do not roll over from year to year.
USCIS will continue to accept H-2B petitions that are exempt from the cap, including those applying to extend H-2B status, spouses and children of H-2B workers classified as H-4 non-immigrants, and other workers specified as exempt.
H-2B visas are available for temporary workers in nonagricultural sectors and may be used for high-skilled professionals who do not fit into other categories as long as the employer’s need for the work is temporary.
Due to a planned system upgrade starting in mid-February and an anticipated service interruption, the U.S. Embassy and consulates in Canada will begin taking fewer visa appointments from applicants applying for nonimmigrant visas to enter the U.S.
Applicants are encouraged to schedule appointments as early as possible before the temporary disruption. Currently, the consulates are not booking appointments after the first week of February.
Third-country foreign nationals in the U.S. who are planning to travel to Canada to renew their American visas should be mindful of longer wait times for appointments before making travel plans.
The service interruption, which could last a few weeks, is caused by an upgrade to the online appointment-scheduling system used by the embassy and consulates. Once the upgrade is complete, additional time slots will be open for visa appointments.
BAL Analysis: It is unclear how long the disruption to visa appointments will last, but it could extend through spring break, making it difficult for families to travel to Canada to renew their visas. Foreign nationals should schedule their appointments as early as possible to mitigate delays in the renewal process and disruptions to work and travel schedules. They may also contact their BAL attorney, who may be able to assist.
A powerful storm has closed U.S. Citizenship and Immigration Services offices across parts of the Northeast.
As of Tuesday afternoon, Winter Storm Juno had dumped 11 inches of snow on New York City and more than 30 inches in parts of Massachusetts, according to the National Weather Service. Though the storm was not as strong as expected in some areas, it nonetheless closed roads, businesses, schools and government offices.
USCIS reported field office closures in the following locations:
Field offices in Philadelphia, Pa., Baltimore, Md., and outside of Washington, DC remained open, but were experiencing delays.
In addition to the field offices, application support centers closed in some areas hit by the storm. USCIS did not have information Tuesday afternoon about when offices would be reopening. For a complete list of closures and updated information, visit USCIS’s office closings website.
Those who missed appointments for an interview or biometrics at a field office or application support center will be automatically rescheduled. However, those who scheduled InfoPass or other appointments at field offices that were closed will have to reschedule their appointments on their own. Walk-ins at application support centers will be processed on a case-by-case basis, USCIS said.
BAL Analysis: Applicants should be aware that not all appointments will be automatically rescheduled and should anticipate long lines and delays in the days following closures.
Sen. Jeff Sessions, R-Ala., has been named the next chair of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security. As BAL has previously reported, Sessions is a major opponent of immigration reform in the Senate. Sessions got the position after being passed over to chair the powerful Senate Budget Committee in favor of Sen. Mike Enzi, R-Wyo.
Sessions is already taking a very vocal lead on the issue of immigration in the 114th Congress. Last week, he published an Immigration Handbook for the New Republican Majority, which he distributed to his Republican colleagues. The document details Sessions’ fervent opposition to immigration, including a section devoted to “The Silicon Valley STEM Hoax,” in which he describes “the false claim … that there is a shortage of qualified Americans with degrees in science, technology, engineering, and mathematics (STEM).” Sessions has indicated that his office would like to use the themes laid out in the handbook for further discussion with his colleagues at ongoing immigration meetings throughout the year.
Sessions’ higher-profile role on immigration issues on the Senate Judiciary subcommittee could be a setback for immigration reform proponents. As chair, Sessions will now have the ability to hold oversight hearings and conduct investigations. In addition, the Senate has already introduced several immigration bills in the new session that could be impacted by Sessions’ often negative views on immigration.
BAL is paying close attention to this and other developments in Congress and will continue to provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
For additional information or questions:
Lynden Melmed, Partner Washington, D.C. Direct: 202.842.5830 lmelmed@bal.com
Christiana Kern, Legislative Analyst Direct: 202.842.5831 ckern@bal.com