H-1B Denial Rates

H-1B denial rates have increased significantly in the past 2 years. Without question this is due in part to the current administration’s policies as outlined in the Buy American Hire American memo and the memo related to “computer jobs.” Nearly current, and perhaps accurate, approval and denial data can now be found by accessing the new USCIS H-1B Employer Data Hub. The denial rate for FY2019 filings is at 32% up from 6% in FY2015. I am sure the FY2019 denial rate will increase as the results from the 2nd quarter of FY2019 are added. The increase in denials is unprecedented. Stuart Anderson, a contributor to Forbes, and director of the National Foundation for American Policy provides a good overview of the data here. While the Trump administration has stated a desire to increase merit-based immigration, the practical policy, as evidenced by H-1B petition denials, appears to be a severe decrease in the number of high-skilled workers admitted to the United States.

DACA Ending

The Trump administration made the wrong decision and is ending the DACA program. The cancellation of the program does not mean that those with DACA will immediately lose their work authorization. Here are the latest details.

  • No new (first-time) DACA applications will be accepted after September 5, 2017.
  • Any applications pending on September 5, 2017 will be adjudicated.
  • Renewals - if your work authorization expires on March 5, 2018 or earlier, you can still apply for a two-year renewal as long as you apply for the renewal before October 5, 2017. 

The official DHS Memorandum can be found here: DHS Memorandum on DACA Rescission.

The new DHS enforcement priorities

The Department of Homeland Security released a memo titled "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants." The memorandum updates the enforcement priorities as outlined in a past memos about prosecutorial discretion.

In the memo, DHS states that enforcement and removal policies should "continue to prioritize threats to national security, public safety, and border security." DHS states that there will be more transparent reporting of removal statistics, include data that corresponds to the new enforcement priorities. 

The memo divides enforcement priorities into three tiers.

Priority 1 - Threats to national security, border security, and public safety. This tier includes the following classes, each considered a top priority: those involved with or suspected of terrorism, spying, or otherwise posing a danger to national security; those apprehended at the border while attempting an unlawful entry; those convicted or crimes involving participation in a criminal street gang and those at least 16 years of age who participate in illegal gang activity; those convicted of felonies, an essential element of which was the person's immigration status; those convicted of aggravated felonies. 

Priority 2 - Misdemeanor convictions and new immigration violators. This tier includes classes that are the second-highest priority for removal: those convicted of three or more misdemeanors, not including minor traffic offenses; those convicted of a significant misdemeanor, including domestic violence, and driving under the influence; those that have unlawfully entered or re-entered the United States after January 1, 2014; those aliens who in the judgment of the Department of Homeland Security "have significantly abused the visa or visa waiver programs."

Priority 3 - Other immigration violations. This tier includes those that have been issued a final order of removal on or after January 1, 2014. Those in this group are the lowest priority for apprehension and removal. 

Expanded Deferred Action -Deferred Action for Parents

President Obama's executive orders will include those creating a deferred action program for parents of US citizens or permanent residents.

Here are the known eligibility requirements.

Applicants must have a child that is a US citizen or lawful permanent resident born on or before November 20, 2014.

Continuous Presence - Applicants must have resided in the United States continuously since January 1, 2010.

Physical Presence - Applicants must have been physically present in the United States on November 20, 2014 and when making a request for deferred action.

Without Lawful Status - Applicants must have no lawful status, either having fallen out of status or entered the United States without lawful status.

Not an Enforcement Priority - Applicants must not be enforcement priorities as described on the Department of Homeland Security's November 20, 2014 titled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

Favorable Exercise of Discretion - Applicants must receive a favorable exercise of discretion, presenting no factors that make a grant of deferred action inappropriate. 

As with DACA, applicants for the new program will be required to submit an individual application that will be judged on a case-by-case basis. Applicants will be required to submit biometrics. The government fee will be $465, and there will be no fee waivers. The program is supposed to start no later than May 19, 2015. Like DACA, the new program will offer no specified new path to lawful permanent residency or US citizenship. 

President Obama and the Department of Homeland Security expand DACA

The deferred action for childhood arrivals (DACA) program will be expanded pursuant to President Obama's executive orders. Many people know DACA as the program for DREAMERS, for people that were brought to the United States when they were children. The program will continue to be available on a case by case basis, so applications will be necessary. Applications for people covered by the expansion aren't available yet. 

Here are the DACA expansions.

The age gap will be removed. The first DACA program was only available to people that were under age 31 on June 15, 2012. The expanded program will have no age restriction. 

Employment authorization extended to three years. Currently, DACA recipients receive two-year grants of deferred action and employment authorizations. After the two-year period runs, renewal applications can be made. The new program will extend the grants of deferred action and employment authorization from two years to three. 

Date of entry changed to January 1, 2010. The current DACA program requires that applicants have entered the United States by June 15, 2007. The executive order changes the date to January 1, 2010.

The DACA expansions, according to a DHS memo, should be implemented withing 90 days of November 20, 2014.


DACA Renewal Applications Available

As of June 5, 2014, USCIS is accepting renewal applications from people that were previously granted deferred action. If approved, renewal applicants will receive another grant of two-years of deferred action and employment authorization. USCIS recommends that renewal applicants apply at least 120 days before their employment authorization expires, but no more than $150 days before it expires. Call our offices if you need assistance with applying to renew your grant of deferred action for childhood arrivals. In addition to applying for renewal, it is important to discuss with your attorney whether any other immigration options are available to you.

Deferred Action for Childhood Arrivals - DACA Renewals

Grants of deferred action and work authorization under the Obama administration's Deferred Action for Childhood Arrivals program will begin expiring soon. USCIS has not released the form that will be required for renewal applications. USCIS has stated that the fee charged will remain the same, $465. USCIS has also recommended that applicants file renewal paperwork in a window of 150 to 120 days before their work authorization expires. According to USCIS, filing within this window will prevent applicants from having their work authorization expire or from accruing unlawful presence. Renewal applications will likely require less supporting documentation than required with original applications. However, relevant changes may need to be supported with new documentation.