Newly-elected President Joseph Biden aggressively campaigned on a promise of restoring the Deferred Action for Childhood Arrivals (DACA) program. And on his first day as President, he quickly moved to issue an executive order that preserved and strengthened the original DACA program that he helped champion while Vice President to Barack Obama. The former Trump Administration continuously tried to cripple or dismantle the DACA program, by issuing decisions to stop accepting new applications and by not defending the program in court. However, several Federal court decisions overturned this behavior, and in 2020 the Supreme Court struck down the Trump Administration's efforts to end the program. And now that President Biden is in office, the future of the DACA program is very bright.
New petitions for DACA protection are currently being accepted by USCIS, and renewals are actively being processed. So, if you believe you are eligible for DACA and would like to apply, don't delay in contacting an immigration attorney to help you through the process.
DACA is a policy implemented by then-President Barack Obama that provided a quasi-legal immigration status to certain individuals who were in the United States unlawfully. Under DACA, eligible individuals who were brought to the United States illegally as children would be protected from deportation, so long as they met certain conditions. Those receiving DACA are eligible to renew every two years.
Individuals who qualify for DACA protection must meet the following criteria:
You can apply for DACA by filing Form I-821D with the USCIS. It is strongly encouraged that you consult an immigration attorney to help determine if you are eligible and to help you through the process. The Law Office of Spojmie Nasiric PC has significant experience helping DREAMers successfully enroll in the DACA program.
The U.S District Court of Maryland ruled on July 17th that the Trump Administration must accept new DACA applications, after the Supreme Court decision in June that struck down efforts to end the program. Over 600,000 people have received deportation protection under DACA, which also grants eligible individuals certain benefits such as work authorization, a social security number, and the ability to obtain driver’s licenses.
Since 2017, the Trump Administration has tried to progressively dismantle the Deferred Action for Childhood Arrivals (DACA) program. In the Fall of 2017, the United States Citizenship and Immigration Services (USCIS) stopped accepting new DACA applications. USCIS also made it difficult to for renewal applications to be processed and tried to stop accepting renewals altogether, but several Federal courts issued injunctions in 2018 that forced the administration to accept renewals. Since then, the program has been the victim of delays, obstruction, and uncertainty, where renewal applications were being processed by no new applications were being accepted.
The Supreme Court issued a 5-4 decision in June 2020 that the Trump Administration had not provided satisfactory legal justification for terminating the DACA program and had to restore the program to its original 2012 form. Many immigration experts understood this decision to mean that USCIS had to also start accepting new applications. However, even after the Supreme Court decision, USCIS had a notice on the website indicating they were not accepting new applications and clients who were submitting new DACA applications during that time were still being denied.
In light of the Maryland Federal Court ruling, USCIS is now currently accepting new DACA applications, but are putting the new applications in “pending” status.
While the recent court decisions obstruct the Trump Administration’s efforts to end DACA, it does not give permanent protection to the program and does not affirmatively declare that the program is legal.
To submit a first-time application for DACA protection, the applicant must meed the following criteria:
Applicants should consult an immigration attorney or Department of Justice accredited representative before applying for DACA for the first time. The initial application requires substantial evidence to prove the requirements above, so individuals will need to submit proof of identity, education, and criminal history. It is important for new and renewing DACA applicants to keep in mind that the DACA program does not provide a path to permanent residence or citizenship, and some DACA information may be accessible by Immigration and Customs Enforcement (ICE), though USCIS has stated that DACA information is protected.
The Law Office of Spojmie Nasiri is closely monitoring developments related to the DACA program. Please contact us at (925) 520-5195 if considering applying for DACA for the first time, or if interested in exploring other paths to citizenship or immigration relief.
USCIS is currently accepting Advance Parole Applications and issuing I-797 Notice of Action Receipt Notices. Please contact our law office for further information in applying for Advance Parole.
>>>Read about Advance Parole for DACA Recipients
Over the past 18 months, there has been a general increase in the processing times by the United States Citizenship & Immigration Services. The most recent national average data comes from the previous US Government fiscal year, which ran from October 2017 through September 30th of 2018. This data, released as of September 2018, shows that the USCIS processing time for many forms has increased noticeable over the past 18 months.
These delays cannot be narrowed down based on the type of case, because the data only shows processing times of the different types of forms. Immigration forms can be processed for different types of cases. For example, the form I-129 could be used for a fiancé visa or an employment-based visa. The aggregate data collected by USCIS only shows the increase in processing times for each type of form. Right now, the processing times for immigrant visas – both parent-based petitions and spousal petitions – have increased by almost 18 months, and it is expected for that increase to continue.
Additionally, there has been increase in processing time at consulates. Depending on the consulates in many different countries, we are seeing an increase in petitions and a growing backlog, particularly for countries located in the Middle East. There is no data to show why the delays have occurred, but immigration practitioners have seen a general increase in consular processing time ranging from 12 to 18 months.
Delays are affecting all types of immigration cases. For example, the average processing time for immigrant petitions for an employer has increased by 6 months. If you’re applying for a green card for a relative, such as a parent, spouse, or a child under 21, we’ve seen the processing time increase by almost 8 months. So on average, we’re seeing about 9 months added to the overall processing time.
To put these delays in perspective, consider fiancé petitions. Fiancé petitions used to take about 4 months or so to be approved in the United States. Once approved, these applications were processed at the various consulates. This process took, on average, about 6 months from beginning to end, when you got the fiancé visa. Now we’re seeing it takes an average of 8 to 10 months for the fiancé petitions, and spousal petitions are taking about a year to a year and a half to complete.
Sometimes, clients ask questions about whether they should do a fiancé petition for someone filing abroad or should they file a spousal petition, given the delays in processing. Immigration practitioners are noticing processing delays at many of the consulates, particularly with cases involving people from Afghanistan or Pakistan or other Middle East countries. Despite the fact that no information or documentation is missing, the processing delays are making it take longer to get an answer or to get a visa after the interviews of the alien relatives. However, you can avoid the timing delays and unpredictability by filing a spousal petition and getting married in the home country, instead of filing a fiancé visa.
One other area where we have seen a significant increase in processing times is in citizenship naturalization applications. In the last 18 months, there were nearly 730,000 pending citizenship applications at the end of last year. That constitutes more than an 80 percent increase since 2015.
Currently, the backlog is almost 18 months by the time the citizenship application has been filed to get an interview. It used to take about 6 to 8 months from the time of filing to get an interview, whereas now we’re seeing an average of 12 to 14 months just to get an interview. So, there’s been a significant increase in the waiting period, due to the tremendous number of people applying for citizenship for fear of changes in the future.
The key component to keep in mind with all of these increases — whether it’s a consular processing, filing a petition of adjustment of status for a family member in the US, or applying for citizenship —the data shows that the increases have been significant and that they will only get worse with time. So it’s very, very important to work with an attorney to make sure that the documentations are prepared correctly and completely.
One other thing to keep in mind: on September 11 of this year, there was a memo passed out by USCIS that impacts documentation. The memo stated that, if there’s something missing or something done incorrectly when filing a petition, USCIS will no longer be issuing “Requests for Evidence” or “Requests for Information”. Instead, they will outright deny the petition. The consequences of such a denial are severe. When the case is denied, the money spent is completely lost and, in some cases, the applicant will have to have to explain why the first petition was denied.
So, when filing for a petition of any type in the United States or abroad, it is very crucial that you have an attorney prepare the documentation and possibility represent you. Experienced and licensed immigration attorneys practicing in the United States will help prevent making costly mistakes. When selecting an attorney, be sure to ask the attorney questions about their background and experience with the type of cases they’ve handled. This is especially important if you are doing cases abroad. Ask the attorney if they have experience with that particular consulate. Each consulate has its own nuances and information; if an attorney has not done worked there before, they might not be experienced enough to handle those cases.
Finally, if you are thinking about applying for citizenship, then right now is the best time. As it has been indicated, the processing times are expected to increase; so if you are interested, filing now could potentially avoid further delays and changes in the law.
What is the U Visa?
The U visa is a non-immigrant visa for individuals who have been victims of certain qualifying crimes. These victims have suffered substantial physical or emotional harm; they are allowed to remain in the United States by cooperating with law enforcement and continuing to help with the investigation.
A victim may apply for a U visa if they have been a victim of a qualifying crime, which includes domestic violence, sexual assault, trafficking, blackmail, involuntary servitude, employment-based discrimination, exploitation, slavery, and sex trade crimes that have occurred in the United States.
What is the Process for Applying for a U Visa?
If an individual is a victim of a qualifying crime, the first step in applying for a U visa is to look at the police report. It’s very critical that if an individual is a victim of a crime, that they report the crime.
If they do not report the crime, there is no way to be able to obtain a police report in order to qualify for potentially applying for a U visa. A lot of times clients — particularly if they are victims of domestic violence — will refuse to cooperate with law enforcement or to press charges against a perpetrator. However, in these situations, one of the requirements for a U visa is reporting the crime.
Once the crime has been reported, the next requirement is cooperation with law enforcement by providing as much information as possible to create a detailed police report. Once the police report is filed, have an attorney review the police report to determine if it is a qualifying crime.
If the crime is one that qualifies for a U visa and the victim has cooperated with the investigation, the next step is to ask law enforcement to certify and show documentation that the applicant was a victim of a crime. In order to apply for a U visa, the applicant will need the full police report. The attorney will then file a new research certification with the appropriate police department. Once the attorney receives certification, he or she can then process the U visa application with the United States Citizenship & Immigration Services.
Are There Any Potential Drawbacks to Applying for a U Visa?
Currently, there is a backlog of U Visa applicants in the United States. Only about 4,000 U visas are available each year. The application process is quite thorough, so it is important to ensure that the case is fully documented. A frequent concern is that if the victim reports the crime to law enforcement, that they will be reported to Immigration and Customs Enforcement (ICE). This is a very legitimate, serious concern. However, in all the years that I had been practicing immigration law in the San Francisco Bay Area, I have never had any of my clients be reported to ICE because they were a victim of a crime and they reported it to law enforcement.
It is important to ease that concern from victims, because one devastating impact is that some victims of very, very serious crimes — crimes that would qualify them for a U visa — will not report the crime for fear of being deported. It is very important to report the crime, because if it isn’t reported, there’s nothing that an immigration practitioner like myself can do for you.
How Long Does The Process Take? And How Long Is The Visa Valid?
Once the U visa has been filed, the processing time could take anywhere between three to five years to get preapproval of a U visa. The U visa itself, if the case is approved, will allow you to have you to have U visa status for four years. Then, it allows the victim the opportunity to file for lawful permanent residency status. Additionally, the U visa allows the victim to apply for US citizenship in the future. So it’s sort of a pathway to citizenship. Victims of a qualifying crime can also include a spouse if they’re legally married, as well as children under the age of 21 who are undocumented.
How Do I Go About Determining If I Should Apply for a U Visa?
If you’ve been deported before or if you have a criminal record, an attorney will need to assess the facts of each case individually, to determine if there are any risks of applying for a U visa. My office has successfully completed hundreds of U visas.
Does the Crime Have to Be One of Physical Violence?
There’s a through process for documenting the victims both physical and emotional harm. However, one misconception is people think that a U visa applicant must have suffered physical harm. That is not necessarily the case. Victims who have been kidnapped, who have been victims of severe robbery, or who have been victims of emotional, psychological, or domestic abuse that haven’t suffered physical harm have been successful in obtaining a U visa. Attorneys will work closely with the psychologist to document both the physical, emotional harm to the petitioner.
Assistance with naturalization and citizenship application can be challenging to handle on your own, especially in 2015 which has been a year of sweeping policy changes. As the immigration specialist in Pleasanton and the surrounding area, Nasiri Law has compiled the most relevant potential changes to keep you informed, as follows:
When an individual has been sponsored for permanent residence by a family member or employer, he/she enters a process known as Adjustment of Status. Proposed regulations would accelerate the application period to be available even when an individual’s visa number is not available.
Any business employing foreign nationals must deal with the process of applying for H1-B visas. The annual number of new H-1Bs released is currently capped at 65,000, with an additional 20,000 more available for Master’s degree holders. The demand for these visas is expected to drop in the face of upcoming changes. The Senate also expects to raise the cap as high as 195,000.
For Science, Technology, Engineering, and Math graduates, employees can be authorized for longer periods of post-graduation work if their employers participate in the government’s E-Verify program. Upcoming rules may extend the authorization period and also allow individuals with STEM B.S.s but not STEM M.S.s to qualify.
New regulations are also expected to change workplace availability for spouses of H-1B holders being sponsored for green cards. These H-4 holders would not need to wait for the permanent residence process to seek U.S. employment.
PERM is the most typical way for a worker to obtain permanent residence sponsorship. The decade-old regulations are due for an update and a streamline of the process in 2015.
L-1B holders, who are considered to hold “specialized knowledge” vital to their employers, may see a relaxing of the definition of the term, which has constrained the availability of L-1Bs in the past. The U.S. Court of Appeals may also revise a ruling to expand the applicability of the definition, granting the possibility of L-1Bs to a wider sector of workers.
The category of individuals who benefit from National Interest Waivers may be broadened, to include workers whose work will benefit the United States. The USCIS also plans to allow the individuals to enter the US prior obtaining the N.I.W.
US Immigration and Customs Enforcement will work closer with the Department of Labor to strengthen worksite enforcement of policy. Workers can also expect to see the ICE worksite enforcement, the Department of Justice (Office of Special Counsel), the Equal Employment Opportunity Commission, and the National Labor Relations Board working together in the future, likely resulting in higher incidence of investigation of workplaces.
If this information sounds intimidating to you, you are not alone. The premier immigration specialist in Pleasanton, Nasiri Law, extends a helping hand to workers who want to make sense of the government immigration rules that apply to them. If you need assistance with naturalization and citizenship application, Nasiri Law can provide answers to all your most important questions.
