ICE Will Continue Implementing Secretary Johnson’s Enforcement Priorities Memo

Contributed by Jennaweh Hondrogiannis, Associate Attorney

In the days following Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DAPA), there have been various reports from AILA members of various jurisdictions that their local ICE-ERO offices have also been instructed not to follow Secretary Johnson’s enforcement priorities memo. Secretary Johnson’s memo outlined the enforcement priorities of ICE with an emphasis on prioritizing public safety, national security, and border security.

In light of these reports, AILA contacted ICE Headquarters which confirmed that the prioritization set forth in Secretary Johnson’s memo was not affected by the injunction. As such, all ICE agents, officers and attorneys have been instructed to continue reviewing and litigating cases in accordance with the enforcement priorities set forth by Secretary Johnson.  Additionally, the existing DACA policy from 2012 will remain unabridged by the injunction and will continue to be implemented as before.

ICE also confirmed that all literature associated with DACA and DAPA has been removed from detention areas, as instructed. However, ICE will continue to review cases for the exercise of prosecutorial discretion when deemed appropriate.

If you have any questions about how any of the recent developments might affect you or your family members, please call to speak with one of our experienced immigration attorneys at (303)297-9171.

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A Department of Homeland Security Shutdown?

Contributed by Kim Tremblay, Associate Attorney

Congress must agree on a bill to renew funding for the Department of Homeland Security (DHS) before Friday night.  House Republicans are trying to get a bill passed that will renew funding for the agency, while revoking the executive action measures on immigration that President Obama announced in November.  They are facing opposition by the President and Democrats.  Without a bill, the agency will have to shut down some services and furlough some of its employees.  However, many DHS employees will still have to go to work regardless of a potential shutdown. 

DHS houses various government agencies, the most relevant to immigrants and immigration attorneys being United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).  DHS also manages the E-Verify system that allows employers to check whether potential employees have work authorization.

USCIS will not be affected by a DHS shutdown as it derives most of its funding from application fees; ICE and CBP will continue normal operations as well as their personnel are considered essential to preserving the safety of human life or the protection of property.  Their employees must show up on the job even if they do not receive a paycheck. 

On the other hand, E-Verify will not accessible during a shutdown.

Hence, DHS may be facing a shutdown, but it seems like the agencies most relevant to President Obama’s November executive action announcement on immigration will not be affected.

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Update on Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

Contributed by Koby Polaski, Senior Attorney, Edwards Office

On November 20, 2014 President Obama announced a series of executive actions which have the intended purpose of securing the United States borders, prioritizing the removal of felons, and allowing certain undocumented immigrants to apply for deferred action. 

Those that are eligible must pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.  Other important components and requirements of the program are outlined here:

1.     Applicants must be an undocumented individual living in the United States who is the parent of a United States citizen or lawful permanent resident, and who meets the guidelines listed below.

·       Have lived in the United States continuously since January 1, 2010;

·       Had, on November 20, 2014, a son or daughter who is  a U.S. citizen or lawful permanent resident; and

·       Are not an enforcement priority for removal from the United States, under the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

2.     The United States Citizenship & Immigration Service has been tasked with developing further guidelines and procedures and will consider each request for DAPA on a case-by-case basis.

3.     Enforcement priorities include (but are not limited to) national security and public safety threats.  This category includes people with particularly serious misdemeanors and felonies.  Therefore, if you have any kind of criminal conviction, it is important that we know about and analyze it before submitting any applications on your behalf.

After President Obama’s executive action announcement in November, the government announced its plan to begin accepting DAPA applications in May of this year.  However, on February 16, 2015, a federal judge in the Southern District of Texas issued a preliminary injunction, which delays implementation of DAPA and the expansion of DACA.  Following the injunction, United States Citizenship and Immigration Services (USCIS) announced that it suspended plans to implement DAPA.

The federal government will appeal the temporary injunction to a higher court.  Additionally, if the judge in Texas ultimately rules against DAPA, the federal government will also appeal any ruling striking down the programs.

Although there are no guarantees in any court of law, the arguments and precedent for DACA and DAPA as legitimate exercises of prosecutorial discretion are strong.  We therefore expect that the court will ultimately uphold both programs as lawful, allowing USCIS to move forward with implementation. 

Our recommendation is that potential applicants continue preparing to apply for DAPA by gathering documents demonstrating their presence in the country since before January 1, 2010.

Please contact Joseph Law Firm if you would like to further discuss your case or new developments in this litigation. 

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H-4 Employment Authorization for Certain Spouses

Contributed by Melanie Corrin, Partner

United States Citizenship & Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015 the Department of Homeland Security (DHS) will begin allowing certain H-4 dependent spouses to apply for employment authorization.  The regulation change requires that the H-1B principle spouses are seeking employment-based lawful permanent resident (LPR) status.  DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States, after application to and approval from USCIS.

The two conditions under which an H-4 derivative spouse will be eligible to apply for an Employment Authorization Document (EAD) are when the principle H-1B Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or the principle has been granted H-1B extended status beyond the six-year limit due to a timely filed PERM or I-140 Petition.

If you believe you are eligible for this type of employment authorization, or have any questions on this new development, please call Joseph Law Firm.

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Federal Government Files Notice of Appeal and Motion for Emergency Stay

Contributed by Koby Polaski, Senior Attorney, Edwards Office

As expected, the Federal Government today filed a Notice of Appeal and Motion for Emergency Stay of Judge Hanen’s order issuing an injunction in the case of Texas v. United States. 

If granted, the Stay would allow United States Citizenship and Immigration Services (USCIS) to begin accepting applications for expanded DACA and continue work to implement DAPA. An injunction issued by Texas Judge Andrew Hanen temporarily halted the implementation of both programs. 

The twenty-six states who filed the lawsuit in Texas challenging the legality of President Obama’s executive action contend that DAPA and expanded DACA are both subject to the Administrative Procedures Act (APA). If subject to the APA, the government would have been required to undergo a “notice-and-comment period” before implementing the new programs. In the Motion for an Emergency Stay, the federal government argues that the deferred action guidance is an exercise of prosecutorial discretion that is neither subject to challenge by the States, nor required to be issued through notice-and-comment rulemaking. The government requests a ruling on the Stay by the close of business on February 25; absent a ruling, it will consider seeking relief before the Fifth Circuit Court of Appeals.

The filing of this Emergency Stay provides some welcome good news. We hope and expect for more as this litigation plays out. There are strong arguments in support of the government’s case, and previous lawsuits in other district courts have failed. The deferred action guidance was a lawful exercise of the president’s executive power, and we anticipate that both expanded DACA and DAPA will eventually move forward. Stay tuned to the Joseph Law Firm blog for the latest developments.

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Obama Administration to Seek Emergency Order to Let DAPA and Expanded DACA Proceed While Litigation Pending

Contributed by Koby Polaski, Senior Attorney, Edwards

After rumors that President would not seek an emergency order staying a judge’s ruling halting the DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals) programs, the White House announced today that lawyers at the Justice Department would in fact seek an emergency order to let the latest deferred action programs proceed.

On Monday, Judge Andrew Hanen of the Federal District Court in Brownsville, Texas issued an injunction halting the DAPA and expanded DACA programs just one day before the government was scheduled to begin accepting applications for expanded DACA. In response White House officials announced that the Justice Department would make an official motion to seek an emergency stay of this injunction by then end of the day Monday, February 23^rd. If the Court of Appeals grants the motion for an emergency stay, the government could immediately begin accepting applications for expanded DACA and could also continue working to implement DAPA – originally set to begin in May of this year. In addition to the appeal seeking a stay of the current injunction, the Obama Administration will file an appeal on the substance of Judge Hanan’s ruling.

The decision of the administration to immediately seek an order to allow the new deferred action programs to proceed demonstrates its confidence in the legality of President Obama’s executive action on immigration. Indeed, the recent deferred action programs are consistent both with the 2012 DACA program and also with action taken by past presidents over the last many decades. Legal experts across the board indicate confidence that the Justice Department will ultimately prevail in this litigation, resulting in the successful implementation of the expanded DACA and DAPA programs.

Given this, we recommend that those eligible for the new programs continue to prepare to apply. If you have any questions about these recent developments, or regarding your eligibility for DACA or DAPA, please contact the Joseph Law Firm at (303) 297-9171. One of our expert attorneys would be happy to assist you and to guide you in the right direction. 

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USCIS Delays Acceptance of Expanded DACA Applications

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

The US Citizenship and Immigration Services, as of this afternoon, announced that the agency will not accept applications for the Expanded Deferred Action for Childhood Arrivals (Expanded DACA) on February 18, 2015, as originally announced. The agency has also suspended plans to implement and accept requests for the Deferred Action for Parental Accountability (DAPA). Applicants who qualified for DACA pursuant to the June 15, 2012, memorandum, either initial or extension, may still file applications per the current filing instructions. http://www.uscis.gov/i-821d.

According to the Secretary of Homeland Security, Jeh C. Johnson, the Department of Justice plans to appeal the temporary injunction. Secretary Johnson “strongly disagree[s] with Judge Hanen’s decision to temporarily enjoin implementation of [DAPA] and [expanded DACA].” However, the Secretary recognizes that the agency “must comply with it.” The Department of Justice and “legal scholars, immigration experts and even other courts” have agreed that the agency’s actions pursuant to President Obama’s announcement on November 20, 2014, “are well within [the Department’s] legal authority.” Judge Hanen’s decision to grant the injunction in the matter of the State of Texas v. United States, pending in front of the US District Court of Southern District of Texas, is not a final decision on the legality of Obama’s Executive Action, However, the injunction does delay the implementation of any of the Department’s affirmative actions pursuant to the November 20, 2014, announcement. The delays do not affect any existing programs or the enforcement priorities outlined in the “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” memorandum published pursuant to the November 20, 2014, announcement.

Potential beneficiaries of the Executive Action, whether expanded DACA, DAPA, expanded Provisional Waivers, or any other action outlined in the President’s announcement, should watch for government updates from reliable sources on the matter. We would also recommend, before submitting any applications or paying fees, consulting with a licensed attorney who specializes in immigration law or a representative authorized by the Departments of Homeland Security or Justice to provide legal advice on the matter of Executive Action.

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Texas Judge Issues Temporary Injunction Delaying DAPA and Expanded DACA

Contributed Aaron Hall, Partner

Judge Andrew Hanen, a federal judge in the Southern District of Texas, issued a preliminary injunction which delays implementation of Department of Homeland Security’s (DHS) Deferred Action for Parents of Citizens and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action for Childhood Arrivals (DACA). 

Applicants who qualify under the 2012 version of DACA can continue to apply and renew for grants of DACA.

The preliminary injunction does not mean that Judge Hanen has decided that the programs are illegal or unconstitutional.  It merely means that he is ordering that DHS not begin the program while he considers the case.  Given this ruling and given previous statements by Judge Hanen regarding prosecutorial discretion in immigration cases, it does seem likely that Judge Hanen could rule against the programs.  It is important to know, however, that the federal government will almost certainly appeal the ruling on the injunction and any ruling striking down the programs to a higher court.

While there are of course no guarantees in any court of law, the arguments and precedent for the DACA and DAPA as legitimate exercises of prosecutorial discretion are strong and we therefore expect that the programs will be upheld as lawful in the end.  We would therefore recommend that potential applicants continue preparing to apply by gathering documents demonstrating their presence in the country since before January 1, 2010, and consulting with a qualified immigration attorney.

To set up a consultation regarding a potential application for DACA or DAPA, please call us at (303)-297-9171.

Further Reading:

Information on DAPA and DACA

Judge Hanen’s Memorandum Opinion and Order

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H-1B Season is Upon Us

Contributed by Melanie Corrin, Partner

For businesses, there is nothing more important than having a strong, dedicated workforce.  For many employers with professional positions to offer, this means racing to the Citizenship & Immigration Service to file for a potential employee’s H-1B visa in hopes their case is chosen in a lottery.  For the last two years, CIS has reached the 65,000 cap on professional workers in the first week.  Forcing a lottery and leaving many employers without the ability to hire the employees they want. 

The 2016 fiscal year begins October 1, 2015.  Employers are eligible to file H-1B petitions no more than 6 months before the visa is available.  Thus, April 1, 2015 is the earliest date on which USCIS can accept petitions for H-1B visas.  This year we all expect to reach the 65,000 cap again on the first possible day.  Quite a bit goes into filing an H-1B petition, including securing the proper Labor Condition certification, ensuring the position is a professional one, and that the individual you are seeking to employ has the requisite bachelor’s degree to fit that position.  If you are interested in filing a new H-1B petition this year, please contact Joseph Law Firm and we can assist you through the process.  Time is of the essence!    

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DUI Related Detentions Increasing

Contributed by Koby Polaski, Senior Attorney-Edwards Office

Over the past couple of weeks, there has been a nationwide increase in the apprehension and detention by Immigration and Customs Enforcement of people with DUI and DWAI convictions. Most of the apprehensions have been occurring in rural areas. However, the volume of apprehensions indicates that this is likely a directive from Immigration and Customs Enforcement national headquarters, so we might see this disturbing trend continue to spread.

                          

So far, ICE has not focused its apprehension efforts on those with recent DUI convictions; even people with very old convictions have been apprehended. At this point, we can only guess that this effort is a result of ICE’s new Priority Enforcement Program. This program was implemented in November, when President Obama made his Executive Action announcement. Under the Priority Enforcement Program, DUIs are classified as “significant misdemeanors” and fall into Priority 2 – second on the priorities enforcement list behind those who pose a threat to national security.

Please call to schedule a consultation with one of our expert immigration attorneys at: (303) 297-9171 to obtain more information on the DUI apprehensions and to ask specific questions.

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