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Florida and Virginia have become the latest states to allow young undocumented immigrants to qualify for in-state tuition, bringing the total to 21 states.
On May 2, the Florida Legislature approved a state DREAM Act that Governor Rick Scott has promised to sign. The state law will benefit the roughly 200,000 undocumented students who will be eligible for in-state tuition rates if they attended a Florida high school the previous three years.
In Virginia, lawmakers declined passage of a DREAM Act; but on April 29, State Attorney General Mark R. Herring issued a legal opinion to public colleges, stating that undocumented immigrants under the federal Deferred Action for Childhood Arrivals (DACA) are entitled to the lower tuition rates available to state residents. Under DACA, certain undocumented immigrants brought to the U.S. by their parents as minors and who meet certain age and eligibility criteria can defer deportation and get employment authorization for two years.
According to the National Immigration Law Center, 16 states now authorize in-state tuition rates to undocumented students through legislation – California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah and Washington. Hawaii, Michigan, Oklahoma and Rhode Island also authorize in-state tuition rates to immigrants through their state Board of Regents. Five states – California, Minnesota, New Mexico, Texas and Washington – extend state student aid to undocumented students.
Bucking the trend, Arizona, Georgia and Indiana prohibit undocumented students from qualifying for in-state tuition rates, and Alabama and South Carolina go further in barring undocumented students from enrolling in state colleges and post-secondary education.
BAL Analysis: The offers of in-state tuition demonstrate a continuing trend in providing access to education and employment-related benefits to undocumented immigrants who were brought to the United States as minors.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The U.S. State Department’s June 2014 Visa Bulletin shows a substantial retrogression for China and worldwide in the employment-based third-preference (EB-3) category. For China, the EB-3 priority cut-off date in June 2014 will drop to Oct. 1, 2006, a regression of six years. The worldwide and Mexico EB-3 cut-off date will be April 1, 2011, a rollback of approximately one and one-half years. The EB-3 category for the Philippines will advance two months to Jan. 1, 2008 (from Nov. 1, 2007) and the EB-3 category for India will advance fifteen days to Oct. 15, 2003.
The EB-1 category for all countries will remain current. In the EB-2 category, the priority date for China will advance slightly by approximately one month to May 22, 2009 (from April 15, 2009). The EB-2 category for India will remain unchanged at Nov. 15, 2004. All other countries will remain current in the EB-2 category.
Summary of June 2014 Visa Bulletin Priority Date Cutoffs:
U.S. Citizenship and Immigration Services (USCIS) will begin full implementation of L-1 site visits in the near future, according to Sarah Kendall, associate director of the Fraud Detection and National Security (FDNS) Directorate.
Speaking at a USCIS teleconference for stakeholders on April 24, Kendall said that the site visits will be rolled out in phases for different categories of L-1 beneficiaries. The first phase of inspections will be triggered only when an employer files for an extension of status of an L-1A employee (Form I-129) with a USCIS Service Center. The program will later expand to other L-1 categories. Employers will be randomly selected for site visits and are not targeted based on suspected fraud. However, the visits are generally conducted without notice.
The FDNS began making unannounced visits to L-1 sites early this year following a report by the Department of Homeland Security’s Office of the Inspector General that recommended increased site visits as one way to monitor the L-1 visa program for fraud.
The FDNS, which also conducts routine inspections of H-1B employers, created the Administrative Site Visit and Verification Program (ASVVP) in 2009. During a site visit, inspectors will interview L-1 beneficiaries to verify work locations, hours, salaries and duties; review documents to confirm the accuracy of information in L-1 petitions; and take photos. FDNS officers will then review the information and conduct an administrative inquiry if necessary. If, after an administrative inquiry, FDNS finds that information in the petition cannot be confirmed or reconciled with the site visit, it may request additional evidence from the petitioner or start proceedings to deny or revoke the petition. If FDNS suspects fraud, it can conduct additional inquiries or refer the case to Immigration and Customs Enforcement to open a criminal investigation.
BAL Analysis: L-1 beneficiaries, particularly those seeking extensions for L-1A employees, should be aware that USCIS is scaling up its on-site inspections and be prepared for possible random FDNS visits without notice. Blanket L-1 employees are not currently targeted for inspection.
Several American corporate leaders are pushing national campaigns aimed at passing immigration reform in Congress.
FWD.us, a group co-founded by Facebook CEO Mark Zuckerberg, just wrapped up a two-week national tour to spread the word about why immigration reform is essential for tech and start-up companies.
FWD.us and Partnership for a New American Economy held events in nine cities featuring entrepreneurs, tech innovators, policy experts and business investors to talk about problems with the current immigration system and the consequences if Congress does nothing.
“Two weeks ago, we saw the annual H-1B visa cap reached in less than a week and watched America’s outdated immigration laws put our fastest-growing start-ups on hold,” said John Feinblatt, chairman of the Partnership for a New American Economy. “The message from our nation’s leading entrepreneurs is clear: Pass immigration reform now or lose the world’s best talent and technologies to other countries.”
Co-chairs of the Partnership for a New American Economy include Rupert Murdoch of Newscorp, Steve Ballmer of Microsoft, and former New York City Mayor Michael Bloomberg. This week, the group launched a series of advertisements showcasing the contributions of immigrants. The ads depict various iconic American inventions and companies founded by immigrants, and urge Congress to pass immigration reform now. The commercials target policy-makers and will run in Washington, D.C. cabs and on TV.
The Senate passed a comprehensive immigration bill last year, but it has stalled in the House.
Today, the Department of Homeland Security (DHS) announced the publication of two proposed regulations that would benefit highly-skilled foreign workers.
The first rule would extend work authorization to certain spouses of H-1B nonimmigrant workers. The second rule would relax restrictions on employment authorization for other categories of highly-skilled nonimmigrants.
“The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that,” said U.S. Secretary of Commerce Penny Pritzker in a press release.
DHS proposed a similar rule last year to expand work authorization for a limited category of H-4 dependent spouses, and the White House recently stated its support for such a rule.
The proposed rule for H-4 visa holders would amend regulations to allow some H-4 dependent spouses to request work authorization, as long as the H-1B worker has already started the process of applying for a green card. Under existing regulations, H-4 spouses are not allowed to work. The new rule would only apply to H-4 dependent spouses where the principal H-1B holder has an approved Form I-140 petition or has been granted an extension of their stay beyond the normal 6-year period under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
The second proposed rule would ease the regulations on work authorization for highly-skilled professionals. The proposal would add highly-skilled professionals from Chile and Singapore (H-1B1) and Australia (E-3) to the list of individuals authorized to work based on their status with an employer. It would also clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without separately applying to DHS for work authorization. The proposed rule also gives H-1B1, E-3 and CW-1 nonimmigrant workers whose extension requests are pending a period of up to 240 days of employment authorization beyond the expiration date on their Arrival/Departure Form I-94.
Another provision of this rule would expand the type of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers by allowing applicants to submit evidence comparable to that of other employment-based immigrant categories.
Both Notices of Proposed Rulemaking will soon be published in the Federal Register and are open to public comment via www.regulations.gov.
BAL Analysis: While limited in their scope, the proposed rules to expand work authorization to some H-4 spouses and other highly-skilled professionals are a step in the right direction.
Nonimmigrants eligible for Social Security numbers are no longer required to wait two weeks after arrival in the United States before applying.
According to a liaison meeting between the American Immigration Lawyers Association and the Social Security Administration last month, the Social Security Administration (SSA) is no longer enforcing a 10-day hold period between the time an eligible applicant enters the country and the time when he or she can apply for a Social Security number. The waiting period was meant to accommodate the time it took for U.S. Customs and Border Protection to enter information into shared computer systems. However, with the introduction of automated I-94 cards last May, arrival information is now entered within 24 to 48 hours. As a result, the SSA has removed the 10-day hold policy, except for when an applicant for a Social Security number submits a Certificate of Naturalization (DHS Form N-550/N-570) or a Certificate of Citizenship (Form N-560/N-561).
BAL Analysis: The change in SSA policy will allow eligible employment-based nonimmigrants (such as H-1B and L-1 holders) with work authorization to apply for a Social Security number without having to wait two weeks. However, delays in the issuance of a social security number remain possible if the SSA’s database cannot immediately verify the applicant’s required information using the online system.
A recent survey of California deportations showed a dramatic drop in immigration detentions – a decrease of as much as 58 percent in one county – since that state adopted the TRUST Act in January. The TRUST (“Transparency and Responsibility Using State Tools”) Act bars police from detaining an immigrant for Immigration and Customs Enforcement (ICE) unless the immigrant has been convicted of certain serious or violent felonies.
Under the federal Secure Communities program, ICE can request that state and local police hold immigrants in custody for 48 hours while ICE decides whether to deport them and place them in immigration detention.
According to the survey conducted by the Associated Press, in 15 of the largest counties that responded to the survey, there was a 44 percent decrease in ICE holds, from a total of roughly 3,000 holds to 1,660. Those figures included four of the five largest counties – Los Angeles, Riverside, San Bernardino and San Diego. Detentions in Los Angeles, which saw the most cases, fell 28 percent from last year to the first two months of this year. San Diego, handling the second most immigration detentions, dropped 58 percent from 426 holds to 180. San Francisco, which passed an even more restrictive law than the TRUST Act, saw detentions nosedive 93 percent.
Before the TRUST Act, California represented one-third of all deportations nationwide.
BAL Analysis: The initial figures showing a marked decrease in immigration holds under the TRUST Act, except in cases of serious felonies, suggest that a substantial number of deportations were triggered against individuals who were not convicted of serious crimes.
U.S. Citizenship and Immigration Services (USCIS) has begun issuing its first receipts to H-1B petitioners only one day after it announced that it had conducted lotteries to select the cap-subject petitions it will consider. This morning, a limited number of employers received premium processing receipts from the California Service Center and the Vermont Service Center.
USCIS has not released a schedule for premium processing. The agency previously projected that premium processing might not start until April 28.
BAL Analysis: The earlier-than-expected receipts for a handful of premium processing cases is good news for employers anxiously awaiting word on cap cases filed. However, it is unclear if this will reflect an accelerated schedule for all receipts or not.
This week, the White House announced that it intends to move forward on a proposed rule that would allow spouses of certain H-1B visa holders to work while present in the U.S. In 2002, Congress amended the Immigration and Nationality Act to authorize dependent spouses of L-1 and E visa holders to work while in the U.S. However, spouses of H-1B workers who are in H-4 status are currently prohibited from employment, often creating a disincentive for young, highly-skilled professionals to stay in the U.S.
Last year, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPRM) indicating that it was pursuing a regulation that would make H-4 dependent spouses eligible for employment authorization where the H-1B principal has begun the process of seeking an employment-based green card and has extended his or her H-1B stay under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Congress passed AC21 to minimize disruptions to business by allowing H-1B professionals with a pending or approved immigrant or labor certification petition to apply for extensions beyond the maximum six-year H-1B validity period.
According to DHS, the proposed rule was “intended to mitigate some of the negative economic effects of limiting H-1B households to one income during lengthy waiting periods in the adjustment of status process. Also, this rule will encourage H-1B skilled workers to not abandon their adjustment application because their H-4 spouse is unable to work.” The proposed rule would likely be subject to public notice and comment, and any revised policy would not go into effect until DHS issues a final regulation. It is unclear whether DHS will alter the scope of last year’s Notice of Proposed Rulemaking.
BAL Analysis: The announcement by the White House will be well received by the business community. Last year’s Notice of Proposed Rulemaking did, however, limit work authorization to spouses of H-1B workers who are in the late stages of the green card process. Should DHS proceed with the proposed regulation, BAL will work with businesses and trade associations to expand the provision to reach other H-4 derivatives.
The number of H-1B petitions filed in the first week of filing hit 172,500, according to an announcement today by U.S. Citizenship and Immigration Services (USCIS). This year’s filings were about 48,000 more than last year, and more than double the number of H-1B visas allowed by law. USCIS also said that today it completed the random selection process, or “lottery,” triggered when the number of petitions exceeds the annual numerical quotas in the first week of filing. This began April 1. The annual limits are 65,000 for undergraduate-degree holders and 20,000 for petitioners holding a master’s or higher degree from a U.S. university. The lottery for advanced-degree holders was conducted first, and those who were not selected were put into the second lottery for undergraduate-degree holders. USCIS will begin issuing rejections and returning filing fees for all H-1B cap-subject petitions not selected in the general lottery. On Monday, USCIS stopped accepting H-1B cap-subject petitions after announcing that the 65,000 and 20,000 ceilings were reached in the first week.
BAL Analysis: The record number of filed petitions without an increase in the annual caps means the odds of selection in the lottery are significantly lower than last year, which saw 124,500 petitions. This year, petitioners in the general lottery have a less than 50 percent chance of being selected, as predicted by BAL partner Lynden Melmed in an op-ed article on April 1.