A reminder of the reality of H-1B visas.

Contrary to some reports, the H-1B visa program does not punish U.S. workers or unfairly benefit foreign workers.  My clients include companies with employees holding H-1B visas alongside a far-majority of those companies’ workforces who are U.S. citizens.  U.S. companies using the H-1B visa program properly do so by hiring highly educated, highly skilled, and very well-paid H-1B employees who fill very specific needs for the companies and their customers.  

As explained in this letter to the editor in the Washington Post, we should not punish innovative and successful U.S. companies who are committed to following our immigration laws simply because an extremely small number of businesses use the H-1B program improperly. 

Read the full Washington Post article "The H-1B visa program is not 'much abused'" here.  

Timothy R. Bakken

U.S. Citizen Children Impacted by Immigration Enforcement

BY AMERICAN IMMIGRATION COUNCIL, 28. MARCH 2017: In the United States today, more than eight million citizens live with at least one family member, often a parent, who is undocumented. Children make up the majority of these U.S. citizens; almost six million citizen children under the age of 18 live with a parent or family member who is undocumented. Consequently, immigration enforcement actions—and the ongoing threats associated with them—have significant physical, emotional, developmental, and economic repercussions not only for the deported individuals, but for the many children who stay behind. Deportations of parents and family members have serious consequences that affect children and extend to communities and the country as a whole.

This fact sheet provides an overview of the U.S. citizen children who could be impacted by immigration enforcement actions, the challenges and risk factors that these children face, and the existing mechanisms designed to protect children if a parent is detained or deported.

Millions of U.S. citizen children have undocumented parents and family members.

• 4.1 million U.S. citizen children under the age of 18 live with at least one undocumented parent, according to estimates of 2009-2013 census data.
• 5.9 million U.S. citizen children under the age of 18 live with an undocumented family member, according to estimates of 2010-2014 census data.
• Roughly half a million U.S. citizen children experienced the apprehension, detention, and deportation of at least one parent between 2011 and 2013, based on estimates using Immigration and Customs Enforcement (ICE) data.

Immigration enforcement—and the threat of such actions—can negatively impact a child’s long-term health and development.

• A child’s risk of having mental health problems like depression, anxiety, and severe psychological distress increases following the detention and/or deportation of a parent. Since late 2016, doctors and service providers have reported anecdotally that they have seen more children exhibiting stress- and anxiety-related behavioral changes, including symptoms of “toxic-stress,” due to fear that a family member will be deported.
• A study of Latino citizen children from 2013-2015 found that post-traumatic stress disorder (PTSD) symptoms were significantly higher for children who had at least one detained or deported parent.
• A 2010 study of immigration-related parental arrests (at home or worksites) found that the majority of children experienced at least four adverse behavioral changes in the six months following a raid or arrest. Compared to the previous six months, children cried or were afraid more often; changed their eating or sleeping habits; and/or were more anxious, withdrawn, clingy, angry, or aggressive.
• Even before birth, immigration enforcement can put a child’s health at risk. The 2008 worksite raid in Postville, Iowa—the largest single-site immigration raid in U.S. history—was tied to premature and underweight births, complications that put babies at risk for infant death or long-term health problems. Researchers found that babies born to Latina mothers in Iowa within 37 weeks of the raid were 24 percent more likely to be underweight compared to the previous year. This increased risk was not evident in babies born to non-Latina white mothers in Iowa.

The detention or deportation of a parent puts children at risk of economic instability.

The deportation, and even the arrest or detention, of a parent or other household family member has significant short- and long-term financial implications. U.S. citizen children and any remaining family members can face substantial economic disadvantages following the removal of a primary provider.

• An analysis of 2014 median family income estimated that a family’s income would decrease 50 percent following the deportation of a family member.
• A study of immigration enforcement in six U.S. locations between 2006 and 2009 found that families lost 40 to 90 percent of their income, or an average of 70 percent, within six months of a parent’s immigration-related arrest, detention, or deportation.
• The ability to afford housing may become more tenuous following the deportation of a provider, resulting in the loss of a family’s home and more frequent relocations.
• A 2016 study of immigration enforcement and housing foreclosures found that “deportations exacerbate rates of foreclosure among Latinos by removing income earners from owner-occupied households.” Furthermore, the research revealed that counties with 287(g) agreements, which authorize immigration enforcement collaboration between local police and ICE, had substantially higher foreclosure rates among Latinos.

U.S. citizen children may end up in the child welfare system following the detention or deportation of their parent.

Parents—regardless of immigration status, detention, or deportation—have a constitutional right to custody of their children (unless deemed unfit). While both the immigration and child welfare systems generally recognize that it is in a child’s best interest to remain with a parent or family member, the complexity and lack of coordination between agencies can lead to prolonged family separation and even termination of parental rights.

• If a parent is unable to arrange childcare or custody prior to detention or deportation, the child may be taken by the state’s Child Protective Services (CPS) for placement and case management. The child is usually placed in an emergency shelter; group home; or with a relative, friend, or stranger in a foster home while custody is determined in family court.
• An estimated 5,000 U.S. citizen children in foster care had a detained or deported parent in 2011, according to a national study.
• Children in foster care in counties with 287(g) agreements were 29 percent more likely to have detained or deported parents compared to non-287(g) counties studied in 2011.

There are limited mechanisms to safeguard parental rights, which are incredibly difficult for parents to regain following detention or deportation.

All parents have the right to receive a notification of custody proceedings affecting their children, attend such proceedings, and receive copies of related court documents. Yet there are few enforceable, permanent policies in place to protect these rights.

• Federal law mandates that parental rights be terminated if a child has been out of a parent’s custody for 15 of the past 22 months. Policies and procedures vary by state, but in order to maintain or regain parental rights, CPS generally implements a reunification plan that requires a parent to have regular contact with the child and participate in family court hearings. Detained or deported parents have historically faced significant barriers to these requirements.
• Parents may request release from detention in order to care for their children while they are in immigration proceedings; however, ICE does not guarantee that it will exercise discretion in such cases.
• In 2013, ICE issued its Parental Interests Directive to prevent and mitigate the impact of immigration enforcement on parental rights. Broadly, the guidance aims to better facilitate parent-child visitation; parental participation in custody proceedings; and ensure the role of a parent is recognized in case reviews and initial detention, transfer, or prosecutorial discretion decisions.
• In 2015, the Children’s Bureau within the Department of Health and Human Services (HHS) issued an information memo encouraging child welfare agencies and case workers to review ICE’s directive and work with ICE to ensure family services “focus on safety, permanency and well-being” regardless of immigration status. 

Despite these directives, significant issues persist. Since ICE is not required to inform CPS of a parent’s whereabouts, CPS may still have difficulty locating and properly notifying a detained parent; family courts and caseworkers may not understand why a parent is detained and unable to participate in proceedings; and ICE officials may underestimate the impact that enforcement has on U.S. citizen children who are likely to be left behind.

Parents with a final deportation order must make the difficult decision of whether or not to bring their children—including U.S. citizen children—with them.

ICE issued more than 200,000 deportations for parents with citizen children between 2010 and 2012, according to the most recent government data available. While the government does not track whether U.S. citizen children stay in the United States or leave with a deported parent, both scenarios occur and pose challenges.  

• If parental rights remain intact, parents facing a pending deportation may make custody arrangements for their children to stay in the United States. Under the Parental Interests Directive, ICE is supposed to ensure “appropriate efforts, where practicable,” are taken to allow a detained parent to make guardianship or travel arrangements for the child prior to deportation.
• If a child’s custody is still being determined after a parent has been deported, the ability of the parent to regain custody or participate in proceedings—even if the court requires the parent’s attendance—is extremely limited. ICE, for example, may consider facilitating the travel of a deported parent back to the United States only if the proceedings are to terminate parental rights.
• Deported parents have the right to reunite with their children outside of the United States as long as the reunification plan is ongoing, but this requires significant coordination between family members, the parent country’s consulate, and U.S. state and federal agencies. It can be difficult for deported parents to prove that they can provide for their children in a stable and safe environment in the country of deportation, based on many of the same conditions that may have triggered the parent’s migration to the United States in the first place.

Download the Fact Sheet here.

Executive Actions on Immigration

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.  

These initiatives include:

• Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years | Details
• Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks | Details
• Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens | Details
• Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs | Details
• Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee | Details

Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. 

Next steps

USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.

Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative. 

While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:

• Identity;
• Relationship to a U.S. citizen or lawful permanent resident; and
• Continuous residence in the United States over the last five years or more.

We strongly encourage you to subscribe to receive an email whenever additional information on these initiatives is available on our website. We will also post updates on Facebook and Twitter.

Share this page with your friends and family members. Remind them that the only way to be sure to get the facts is to get them directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, go to the Avoid Scams page.

Below are summaries of major planned initiatives by USCIS, including:

• Who is eligible
• What the initiative will do
• When you can begin to make a request
• How to make a request

1. Deferred Action for Childhood Arrivals (DACA) program

Who

• Current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.

What

• Allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction) provided they meet all other guidelines.
• Requires continuous residence in the United States since January 1, 2010, rather than the prior requirement of June 15, 2007.
• Extends the deferred action period and employment authorization to three years from the current two years.

When

• Approximately 90 days following the President’s November 20, 2014, announcement.

How

• Go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page for instructions which will be updated over the next several months. 

2. Deferred action for parents of U.S. citizens and lawful permanent residents

Who

• An undocumented individual living in the United States who, on the date of the announcement, is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below.

What

• Allows parents to request deferred action and employment authorization if they:
  • Have continuous residence in the United States since January 1, 2010;
  • Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and
  • Are not an enforcement priority for removal from the United States, pursuant to the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.

When

• Approximately 180 days following the President’s November 20, 2014, announcement.

3. Provisional waivers of unlawful presence

Who

• Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:
  • The sons and daughters of U.S. citizens; and
  • The spouse and sons or daughters of lawful permanent residents.

What

• Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.
• Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.

Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available. For more information about the waivers program, go to the Provisional Unlawful Presence Waivers page which will be updated over the next several months.

When

• Upon issuing of new guidelines and regulations.

4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs

Who

• U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.

What

USCIS will:

• Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
• Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
• Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.  
• Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
• Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
  • Have been awarded substantial U.S. investor financing; or
  • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research. 
• Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status. 
• Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
• Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

When

• Upon issuing necessary guidance and regulations.

5. Promote the naturalization process

Who

• Lawful permanent residents eligible to apply for U.S. citizenship

What

• Promote citizenship education and public awareness for lawful permanent residents.
• Allow naturalization applicants to use credit cards to pay the application fee. 
• Assess potential for partial fee waivers in the next biennial fee study.

Notes: Go to the U.S. Citizenship page to learn about the naturalization process and visit the Citizenship Resource Center to find naturalization test preparation resources. You can also visit the N-400, Application for Naturalization, page.When

• During 2015

Key Questions and Answers

Q1: When will USCIS begin accepting applications related to these executive initiatives?

A1:  While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:

• Identity;
• Relationship to a U.S. citizen or lawful permanent resident; and
• Continuous residence in the United States over the last five years or more.

USCIS expects to begin accepting applications for the:

• Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and
• Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement. 

Others programs will be implemented after new guidance and regulations are issued.

We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.

Q2: How many individuals does USCIS expect will apply?

A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.

Q3: Will there be a cutoff date for individuals to apply?

A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply. 

Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.

Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives? 

A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.

Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?

A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months. 

Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?

A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.

In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.

Q8: What if someone’s case is denied or they fail to pass a background check?

A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.  

Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?

A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.

Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?

A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:

• Assisting in the consideration of the deferred action request;
• To identify or prevent fraudulent claims;
• For national security purposes; or
• For the investigation or prosecution of a criminal offense. 

This policy covers family members and guardians, in addition to you.

Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?

A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.

Glossary

• Continuous residence: For a detailed explanation, go to the USCIS Policy Manual, Chapter 3: Continuous Residence.
• DACA: Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Consideration of Deferred Action for Childhood Arrivals (DACA)page.
• Deferred action: A use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind. DACA is one type of deferred action.
• Prosecutorial discretion: The legal authority to choose whether or not to take action against an individual for committing an offense.
• Provisional waiver: Waiver for individuals who are otherwise inadmissible due to more than 180 days of unlawful presence in the United States, based on a showing of extreme hardship to certain U.S. citizen or lawful permanent resident family members, which allows the individual to return after departure for an immigrant visa interview at a U.S. embassy or consulate. For more information, go to the Provisional Unlawful Presence Waivers page.

By U.S. CUSTOM AND IMMIGRATION SERVICES, 21. November 2014.

USCIS Will Naturalize Nearly 9,000 New Citizens During Independence Day Celebrations

Illustration Photo - JFK Presidential Library & Museum in Boston - Photo All Rights Reserved: Torgrim Landsverk

USCIS: U.S. Citizenship and Immigration Services (USCIS) Acting Director Lori Scialabba will help USCIS celebrate our nation’s 238th birthday as the agency welcomes approximately 9,000 new U.S. citizens during more than 100 naturalization ceremonies across the country from June 30 to July 4.

“We’re honored to celebrate Independence Day by welcoming new U.S. citizens at ceremonies across the United States,” said USCIS Acting Director Lori Scialabba. “It’s our pleasure to celebrate the fulfillment of their dreams of citizenship at the same time we celebrate the birth of our country.” 

Citizenship candidates will take the Oath of Allegiance during numerous ceremonies, including: Nevada’s Las Vegas City Hall; Old Salem Museum and Gardens in Winston-Salem, North Carolina; Turner Field in Atlanta; the Miramar Branch Library & Education Center, Miramar, Florida; Saguaro National Park in Tucson, Arizona; the New York Public Library in New York City; the Seattle Center in Seattle; the National World War II Museum in New Orleans; the Benjamin L. Hooks Central Library in Memphis, Tennessee; and California's Great America Theme Park in Santa Clara, California.

This year’s celebration of Independence Day and U.S. citizenship also will feature special naturalization ceremonies at sites integral to America’s history, including: George Washington’s Mount Vernon in Mount Vernon, Virginia; Thomas Jefferson’s Monticello in Charlottesville, Virginia; the USS Missouri in Pearl Harbor, Hawaii; Mount Rushmore National Memorial in Keystone, South Dakota; the USS Midway in San Diego, California; the Battleship New Jersey in Camden, New Jersey; and Saratoga National Historical Park in Stillwater, New York.

To view a list of 2014 Independence Day naturalization ceremonies, visit www.uscis.gov/news. USCIS encourages new citizens and their families and friends to share their ceremony experience and photos afterward via Twitter and other social media, using the hashtag #newUScitizen.

By USCIS, 1. July 2014.