Tag Archive for: H-1B status

Cyrus Mehta

The Uncertain Path of the D-3 Waiver for DACA Recipients under Biden’s New Immigration Initiative  

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By Cyrus D. Mehta and Kaitlyn Box*

On June 18, 2024, the Biden administration announced two new immigration initiatives aimed at keeping families together. The first is a “parole in place” program which will provide a pathway for undocumented spouses of U.S. citizens to become lawful permanent residents (LPRs). In order to be eligible, the noncitizen spouse must have entered the U.S. without admission or parole and hold no immigrant or nonimmigrant status, and “must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements.” DHS will evaluate these applications on a case-by-case basis, and will afford approved applicants a three-year period in which to apply for permanent residence.

The other process will enable Deferred Action for Childhood Arrivals (DACA) recipients to more easily obtain employment-based visas. The measure will allow “DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” Although many details about this measure are still forthcoming, it appears to involve the expedited issuance of an INA § 212(d)(3) waiver (D-3), which waives many grounds of inadmissibility, including the 3 and 10 year bars that arise from unlawful presence. In a news release corresponding with the Biden administration’s announcement, the U.S. Department of State – Bureau of Consular Affairs stated: “As part of this initiative, the Department will clarify existing guidance to consular officers related to when they should consider recommending that DHS grant a waiver of ineligibility, where applicable… These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas.  However, the processing steps will remain the same.” The Foreign Affairs Manual (FAM) will also be updated to “encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance…This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility.”

Although DACA recipients can at present apply for a D-3 waiver in order to obtain an employment-based nonimmigrant visa, this process is rarely used in practice. When a DACA recipient who has been unlawfully present in the United States for a lengthy period of time leaves the United States to apply for an employment-based visa at a U.S. consulate abroad, they are likely to trigger the 3- or 10-year bars pursuant to INA § 212(a)(9)(B).Under INA § 212(a)(9)(B)(i)(I) a person who is unlawfully present for more than 180 days but less than 1 year, and who voluntarily departs the US prior to the commencement of proceeding is inadmissible if they seek admission within 3 years from the date of departure. Under INA § 212(a)(9)(B)(i)(II) a person who has been unlawfully present for more than one year, and who again seeks admission within 10 years from the date of the departure is inadmissible.

Minors do not accrue unlawful presence under INA§ 212(a)(9)(B)(iii)(I), so a DACA recipient who applied for and received DACA before the age of 18.5 years would not trigger the 3- or 10- year bars. Since the grant of DACA stops the accrual of unlawful presence, they would have accrued less than 180 days of unlawful presence. An individual who obtained DACA after the age of 18.5 years and before 19 would trigger only the 3- year bar, having accrued more than 180 days but less than one year of unlawful presence. DACA recipients who obtained the benefit after the age of 19 would have been unlawfully present in the U.S. for a year or more, and would face the 10-year bar. Individuals could enroll in the DACA program up until they reach age 31, and participation in the program was  highest among those who were well over 18, so many DACA recipients will unfortunately face the full 10-year bar.

The question of whether or not the waiver will be granted is also a purely discretionary determination made by a consular officer, and the waiver application can take months to be adjudicated. The Foreign Affairs Manual directs consular officers to “consider the following factors, among others, when deciding whether to recommend a waiver: The recency and seriousness of the activity or condition causing the applicant’s ineligibility; The reasons for the proposed travel to the United States; and The positive or negative effect, if any, of the planned travel on U.S. public interests. Whether there is a single, isolated incident or a pattern of misconduct; and Evidence of reformation or rehabilitation.”  Thus, DACA recipients, and their prospective employers, currently have little assurance that a D-3 waiver will be granted when they leave the country for consular processing. If the waiver is not granted, the DACA recipient could be stranded outside the U.S. for up to 10 years.

Importantly, an individual can typically only spend a limited amount of time in an employment-based nonimmigrant status – for an H-1B nonimmigrant the maximum is 6 years – so DACA recipients who obtain an employment-based visa such as an H-1B will also need to find a path to remain in the U.S. on a long-term basis, including being sponsored for permanent residence by their employer. Even if the DACA recipient has received the D-3 waiver, this waiver only waives the ground of inadmissibility for the temporary nonimmigrant admission. If the DACA recipient is sponsored for permanent residence, the bars at INA § 212(a)(9)(B) will continue to trigger if the applicant applies for adjustment of status or applies for an immigrant visa overseas. Hence, they will need to wait for 3 or 10 years before they can get admitted as lawful permanent residents. Under USCIS policy, the 3 and 10 year bars can be spent in the US, which we have extensively discussed in a prior blog. The question is how can one wait for 10 years in lawful nonimmigrant status in the US before they can apply for adjustment of status?

Many DACA recipients are natives and citizens of Mexico or South American countries such as Guatemala, Honduras, or El Salvador, so they are likely to be eligible to file an employment-based adjustment of status application much more quickly than a beneficiary from a backlogged country such as India or China. In the June 2024 Visa Bulletin, for example, the Final Action Date for the employment-based third preference category (EB-3) is November 22, 2022 for India and the “rest of world”, but for India it is August 22, 2012. However, §104(c)  the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)  allows a beneficiary’s H-1B status to be extended for three years at a time if they are the beneficiary of an employment-based I-140 immigrant visa petition, and are eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. The H-1B status can be extended every three years until the backlogs caused by the per country limitation clears.  Because the priority date is likely to become current far more quickly for former DACA recipient not born in India who are the beneficiaries of I-140 petitions, they will be at a disadvantage when it comes to obtaining H-1B extensions beyond the sixth year, as they need to spend 10 years in the US before they can overcome the 212(a)(9)(B) ground of inadmissibility, which could complicate the process of remaining in a valid nonimmigrant status while they wait to apply for adjustment of status. An H-1B worker can also obtain a one year H-1B extension under AC21 §106(a) if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. See 8 CFR § 214.2(h)(13)(iii)(D). However, noncitizens are precluded from availing of this extension if they do not file for adjustment of status within one year of visa availability. 8 CFR § 214.2(h)(13)(iii)(D)(10). DACA recipients waiting to overcome 212(a)(9)(B) inadmissibility are thus unlikely to benefit from this provision.

Some DACA recipients may opt for the L-1 nonimmigrant path if they spend one year abroad for a subsidiary, parent, or branch of their US employer in a qualifying executive, managerial or specialized knowledge capacity. However, beware, that unlike one in H-1B status who may be able to keep on applying for extensions under AC 21, the shelf life of the L-1A status is 7 years, and 5 years for the L-1B status, as AC21 does not apply to L-1s. One way to get around spending 10 years in the US to overcome 212(a)(9)(B) inadmissibility is if the applicant is eligible for a waiver under INA §212(a)(b)(b)(v), which is based on a showing of extreme hardship to a qualifying relative such as a spouse or parent is a US citizen or lawful permanent resident. If an applicant has such a qualifying relative, they need not wait out the entire 10 years and can waive the ground of inadmissibility.

In conclusion, obtaining the D-3 waiver only allows the DACA recipient who faces the 3 or10 year bar to be admitted into the US as a nonimmigrant. If the DACA recipient needs to obtain permanent residence, they must either wait it out for 3 or 10 years in a nonimmigrant status before they can get admitted as permanent residents, or they need to qualify for a second waiver under INA 212(a)(b)(b)(v). Most DACA recipients may be better off remaining in DACA status rather than exchanging it for H-1B nonimmigrant status. Once they are in H-1B nonimmigrant status, they will have to remain with the employer who sponsored them and will not be able to seek employment in the open market so readily. Of course, the calculus of giving up DACA in exchange for the H-1B nonimmigrant status may change if the Fifth Circuit or Supreme Court deem DACA unlawful, or if President Trump is reelected and yanks DACA. It remains to be seen whether DACA could survive rescission efforts by a future Trump administration. When upholding DACA in 2020 in Department of Homeland Security v. Regents of the University of California, the Supreme Court found that the “reliance interests” of DACA recipients, who have enrolled in college, embarked on careers, started businesses, purchased homes, and married and had children in reliance on the DACA program, must be taken into consideration when deciding the future of the program. This case was discussed at length in a prior blog.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

FAQ Relating to Skilled Workers in the Green Card Backlogs during COVID-19

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Skilled workers caught in the employment-based backlogs face great uncertainty during the COVID-19 crisis. They have to continue to work for employers who have sponsored them green cards while maintaining H-1B status. As explained in my previous FAQ relating to changes in working conditions for H-1B workers, the DOL rules do not provide much flexibility to employers who may be forced to cut wages or furlough employees in order to preserve jobs. If an H-1B worker’s position is terminated, he or she has a 60 day grace period to leave the US or to change to another status.  This FAQ focuses on immigration issues facing foreign nationals who are waiting for their green cards while in H-1B status, although some may also be in L-1 status. They are mainly born in India, and as a result of the “per country limits” in the employment-based first, second and third preferences, they have faced disproportionate waiting times (going into decades) when compared to those born in other countries. But for their country of birth, they would have been green card holders, or even US citizens, by now, and would not be facing peril during COVID-19 with respect to their immigration prospects.

1. My employer can no longer afford to employ staff and terminated me yesterday. I am in H-1B status and am also the beneficiary of an I-140 petition in the employment-based second preference. I was born in India and have a January 1, 2013 priority date. While I am in the 60 day grace period, can I request an employment authorization document (EAD) under “compelling circumstances?”

An Obama era regulation entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” was promulgated  to provide modest relief to high skilled workers born mainly in India and China who were caught in the crushing backlogs in the employment-based preferences.

One significant provision in this regulation provides an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble to the regulation that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Notwithstanding the various examples of compelling circumstances provided in the preamble to the rule, the plain language at 8 CFR 204.5(p) (iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

Anecdotal evidence suggests that USCIS has been very niggardly in issuing EADs under compelling circumstances since the promulgation of the rule in the fading days of Obama’s presidency in January 2017. Unemployment in itself may not be a basis as stated in the preamble, but one can try to argue compelling circumstances in the COVID-19 period more forcefully. When making a case for compelling circumstances, it should be argued, that the plain language of the regulation takes precedence over the preamble or the government’s subjective interpretation of the term. Until there are formal administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored by any credible and reasonable argument by the applicant. Still, one cannot bank on the USCIS issuing an EAD under compelling circumstances as a result of unemployment even during the COVID-19 period. Something more in addition to unemployment should be shown in order to make a convincing argument for compelling circumstances.

2. How long will I be able to stay in the US if I am given a work authorization under “compelling circumstances”, and how can I still get a green card?

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date under the I-140 petition is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the beneficiary could have another employer offer a position, and sponsor the beneficiary through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the beneficiary is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The beneficiary’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the beneficiary can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. The rule, unfortunately, does not provide for routine travel through advance parole while on a compelling circumstances EAD.

3. Will my spouse and teenage child be able to also get a compelling circumstances EAD?

Yes. Derivative family members can also apply for the EAD concurrently with the principal beneficiary of the I-140 petition, but they will only be issued the EAD after the principal family member is first granted the EAD. They too must be in nonimmigrant status at the time of filing the initial application.

4. I have a pending I-485 application, although the final action date in the State Department Visa Bulletin is not current this month. My employer can no longer afford to employ me and is in the process of shutting down the business.

If the Form I-485 application has been pending for 180 days or more, you can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak during the COVID-19 era.

 5. My employer cannot afford to employ me during the COVID-19 period and has terminated my employment in H-1B status, but still wants to continue to sponsor me for the green card hoping that the economic situation will change for the better by the time my priority date becomes current. I have not yet filed for adjustment of status.

Since the employment-based green card sponsorship is based on a prospective position, your employer can still continue with the I-140. If you leave for India within the 60 day grace period after cessation of employment and have not options to remain in H-1B status through another employer or change status, you can ultimately process the immigrant visa at a US consulate overseas upon your priority date becoming current. Given the current wait times in the employment-based first, second and third preferences for India, it may take many years, even decades, before you can get back to the US as a permanent resident. However, your employer will still be able to file an H-1B petition on your behalf in the future to bring you back before you obtain the green card. This H-1B petition will not be counted against the H-1B cap as you have been previously counted against the cap, and you will be entitled to three year extensions beyond the 6 year H-1B limitation.

6. Since there are no flights to India at this time, how can I depart the US within the 60 day grace period?

You could try requesting a change of status to B-2 visitor status before the end of the 60 day grace period by filing Form I-539, and asking for an additional six months in that status. Although you are the beneficiary of the an I-140 immigrant visa petition, which must be disclosed on Form I-539, the fact that you intend to ultimately apply for permanent residence should not conflict with your request for a change of status to B-2 if you can demonstrate your genuine inability to depart the US and that it will take a long time before you even become eligible for a green card. Furthermore, you can also argue that your intention is to apply for an immigrant visa at the US Consulate before you can come to the US as a permanent resident.

 7. I am in my sixth year of H-1B status with an approved I-140 petition. If the employer who filed the I-140 petition no longer wishes to employ me now or in the future, how can I still take advantage of this I-140 petition and get a green card through another employer?

If another employer files a new labor certification and I-140 petition on your behalf, the priority date of the original I-140 petition can still be retained even if the former employer withdraws the petition. Since you have already been counted under a prior H-1B cap, the new employer can file another H-1B petition so that you can reenter the US in H-1B status. You will be eligible for 3 year extensions beyond the six year limitation of the H-1B visa until your priority date becomes current.

8. Will President Trump’s latest green card ban impact me or my family?

President Trump’s Proclamation will ban people seeking immigrant visas at a US Consulate for 60 days from April 23, 2020. Therefore, it will not impact those who are already in the US and seeking permanent residence through adjustment of status. Even if you depart the US to process for an immigrant visa at a US Consulate, the ban will not apply to one who was in the US on the effective date of the Proclamation, which was April 23, 2020. The Proclamation will nevertheless ban derivative family members who are processing for immigrant visas at a US consulate even if the principal applicant adjusted status in the US unless they were in the US on April 23, 2020.