Deferred Action for Childhood Arrivals; old and new qualifications.

In 2012, President Obama announced a program that allowed immigrants who were brought to the states as children to qualify for deferred action. Deferred action is use of prosecutorial discretion to defer removal proceedings against an individual for a certain period of time. Those who qualify for deferred action for childhood arrivals (DACA) were brought to the United States before their 16^th birthday.  Although DACA recipients still do not technically have legal status in the US, they effectively have a legal status in the US because they are allowed to stay in a legitimate capacity. DACA recipients can obtain a work permit, get a driver’s license (in many states), and get a US social security number, among many other benefits.

DACA is an important program that allows immigrants who came to the US as children with their parents an opportunity to work in the US. When parents immigrate, these children had no choice whether they came to the US or not and it seems harsh to punish people for coming to the US when they had no choice in the matter. Their parents do not gain a legal status or a work permit through the DACA program.

Many immigrants have taken advantage of DACA and benefitted from the opportunity to work and feel safe from Immigration and Customs Enforcement. In the first year DACA was implemented over 500,000 people took advantage of the opportunity to gain a work permit. Work permits were valid for two years. Because of the success of DACA, President Obama extended the benefits of DACA in his executive action announced November 20, 2014.

So who qualifies for DACA? The following is a list of the 2012 guidelines with the 2014 change at the end.

2012 Guidelines:

·       Age guidelines – at least 15 and under 31 as of June 15, 2012.

·       Timeframe – Continuous residence in the US since June 15, 2007, come to the US before your 16^th birthday, were physically present in the US as of June 15, 2012 and at the time of requesting DACA, and are in school, have graduated from high school in the US, or have a GED.

·       Education or military status at the time of requesting DACA – graduated from high school, secondary school, or obtained a GED. Currently enrolled in school (high school or equivalent, not college – presumably if you’re in college, you have your high school degree). Have been honorably discharged from the US military or Coast Guard.

New 2014 guidelines

·       Age guidelines – are of any age

·       Timeframe – have lived in the US continuously since at least January 1, 2010.

·       Education – same requirements

·       Extends the validity of work permits from two to three years

The new guidelines take effect February 18, 2015. If you have any questions please contact Frost Law.

Specialty Occupation for an H-1B visa.

An H-1B visa is available to aliens who are coming to the US to work in a specialty occupation. There are two sets of requirements to consider when looking to hire a foreign worker for a US position. The first set is the requirements for the job to qualify for an H-1B visa holder to occupy. The second set is the qualifications for the foreign worker to possess before he can obtain an H-1B visa.

To qualify for an H-1B visa, the job must meet several requirements categorizing it as a specialty occupation:

(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;

(2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

(3) the employer normally requires a degree or its equivalent for the position; or

(4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).

In order to perform services in a specialty occupation, an alien must meet one of the following

criteria:

(1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university;

(2) possess a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university;

(3) have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or

(4) have education, specialized training, or progressively responsible experience (or a combination thereof) that is equivalent to completion of a U.S. bachelor’s degree or higher in the specialty occupation, and have recognition of expertise through progressively responsible positions directly related to the specialty occupation. See 8 CFR 214.2(h)(4)(iii)(C).

The code is vague on what types of jobs qualify  as specialty occupations; “specialty occupations may include, but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.” See 8 CFR 214.2(h)(4)(ii). For example computer systems analysts could encompass computer programmers, program analysts, software designers, software engineers, etc. Many occupations outside of the short list have been approved such as:

·       Auditors

·       Architects

·       Biologists

·       Budget and Management Analysts

·       Chemists

·       Civil Engineers

·       College and University Educators

·       Database Administrators

·       Data Communication and Network Administrators

·       Economists

·       Electrical and Electronic Engineers

·       Financial Analysts

·       Graphic Designers and Artists

·       Industrial Engineers

·       Mechanical Engineers

·       Surgeons

·       Sales and Distribution Managers

·       Statisticians

·       Surveyors

·       Teachers, Primary and Secondary Schools

·       Therapists

Although a job has been approved in the past, it may not be approved in the future. However, jobs that fit in these categories have a higher likelihood of being approved H-1B jobs.

H1B Worker Visa Procedures

It is a new year and with the changing of the calendar comes the time for companies to contemplate hiring foreign talent as the filing deadline for H-1B worker visas is April 1. In the realm of H-1B worker visas there are many items one should consider when applying for the visa. The following is just a few of the preliminary items that one should consider when contemplating filing for an H-1B visa.

First is to be aware of the time frame that USCIS uses when filling H-1B visas. The fiscal year starts October 1 in any given year and a petition can be filed up to six months in advance on April 1. The cap fills up quickly; for the 2015 fiscal year, petitions were filed beginning April 1, 2014 and the filing period closed 5 days later. Normally if you want to hire a nonimmigrant foreign worker, the start date will be set as October 1 and a petition will be filed on April 1. Having filed at this time does not guarantee that your petition will be approved for the fiscal year that you have filed for. More applications are filed than there are visas in the H-1B cap. Those that file within the filing period will be entered into a lottery and the USCIS will select 65,000 applicants at random. Those that do not get selected will receive a refund of their processing fees.

Applicants with a master’s degree are subject to an exception. 20,000 visas are set aside for H-1B applicants with a master’s degree. Those who are not selected for the master’s exception will be included in the H-1B cap lottery. That is a total of 85,000 H-1B applicants in the fiscal year.

Second, you need to file a Labor Condition Application. A Labor Condition Application also asks for a prevailing wage determination and the wage that will be paid to the applicant. The employer attests that: H-1B nonimmigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience, the employment of H-1B will not adversely affect the working conditions of workers similarly employed in the area of intended employment, here is not a strike or lockout in the occupation in which the H1b nonimmigrant will employed, and a copy of this application will be given the H-1B nonimmigrant and the workers already in the field. The Labor Condition Application is filed before the H-1B is filed so that you can attach the Labor Condition Application to the H-1B application.  A Labor Condition Application is usually filed in early March before the April 1 deadline for the H-1B applications.