The Obama Administration's Deferred Action for Childhood Arrivals (DACA) program presents unique challenges for some U.S. employers.   As individuals seek to establish their eligibility for DACA, they may request documentation from their employers to substantiate the request.   An employee requesting information from an employer presents a quandary.   By virtue of the employee's request, the employer is likely being given "constructive" knowledge of the individual's lack of U.S. work authorization. Under the Immigration Reform and Control Act (IRCA), an employer is unable to employ an individual not authorized to work in the U.S. If the employer has actual or constructive knowledge of the individual's lack of U.S. work authorization and continues to employ that individual, the employer can be held liable for civil and criminal penalties.   

Alternatively, an employer may not become aware of the DACA application or eligibility until an employee presents a new work permit that has a different name, picture or a finite expiration date. If this occurs, it may be the employer's option to continue with the employment. Under prior agency guidance, employers may continue employing an individual who has previously provided false documents as long as the documents presented now relate to the individual and appear to be correct.   Some employers have strict policies in place that deal with an individual who provided false or misleading information on an employment application; others handle these issues on a case by case basis. If the employer does not have an existing policy, the key is consistency in the application of the policy. At this time, it remains unclear if the government will utilize the information in the DACA applications for future enforcement action against employers.   

In the currently published DACA Frequently Asked Questions (FAQs), it is stated that the information provided will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations of criminal statutes or widespread abuses. While this statement may offer some comfort to employers, it should also be regarded as guidance only for current agency actions. FAQs do not the force and effect of law and may be revised or withdrawn in the future.

We recommend that you consult with your legal professional at Maggio + Kattar if you have been made aware of employee's that have applied for or received benefits under DACA.

On September 27, 2012, U.S. Department of Homeland Security Secretary Janet Napolitano submitted a written letter to 84 members of Congress who had pressed for guidance regarding the exercise of prosecutorial discretion with respect to lesbian, gay, bisexual, and transgender (LGBT) individuals.

In June 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo (the "Morton Memo") regarding the exercise of prosecutorial discretion. The Morton Memo sought to prioritize the agency's enforcement efforts regarding individuals who may face deportation or removal from the U.S. Specifically, the Memo stated that ICE was to consider close family ties in the U.S. as a factor in whether to exercise prosecutorial discretion in any given case.

Secretary Napolitano's recent letter makes clear that the family ties referenced in the Morton Memo also include individuals in long-term, same sex relationships. Secretary Napolitano directed that ICE disseminate written guidance to the field to this effect, and ICE issued the guidance on October 5, 2012. ICE clarified that same-sex relationships that rise to the level of "family relationships" encompass long-term, same-sex relationships in which the individuals: 1) are each other's sole domestic partner and intend to remain so indefinitely; 2) are not in a marital or other domestic relationship with anyone else; and 3) typically maintain a common residence and share financial obligations and assets.

This announcement is a positive step forward in recognizing that prosecutorial discretion should include all families. While a more permanent solution of providing permanent residence for LGBT families has not yet been achieved, either through the courts or Congress, ICE's recognition that prosecutorial discretion applies to all families is certainly a welcome one.

On September 28, 2012, President Obama signed H.J. Res. 117,  S. 3245 extending for three years the reauthorization of the EB-5 Regional Center Program, E-Verify, Special Immigrant Non-minister Religious Worker Program, and Conrad State 30 J-1 Visa Waiver Program. The previous authorization expired on September 30, 2012.

This legislation is key to allowing individuals who came for graduate medical education or training  through a J-1 Exchange Visitor program, to remain in the United States after concluding their programs.  Typically, J-1 Exchange Visitor medical students and trainees are subject to the two-year home residency requirement, which compels them to return to their country of nationality or last residence for two years before becoming eligible for certain nonimmigrant visas or U.S. permanent residence.

Under the Conrad 30 program, foreign medical graduates may obtain a waiver of the two-year home residency requirement based on a recommendation by a State Health Department.  Each state may grant up to 30 waivers per year to J-1 physicians who agree to work full-time for three years in a federally designated shortage area, including Health Professional Shortage Areas, Medically Underserved Areas, or Medically Underserved Populations. Generally, physicians provide primary care, although specialty care is possible under some programs. Requirements for waivers vary across states and requires close coordination with state program administrators.  In addition, some "flex" slots may also be available for physicians serving in non-shortage designated areas. Physicians who continue to work in shortage areas for a total of five years may be eligible for permanent residence on that basis.

The program was designed to address a growing shortage of physicians in the U.S., particularly in rural areas, and to provide an incentive for foreign medical graduates to remain in the U.S. rather than take the education and training they received in the U.S. elsewhere. The program has been extended incrementally since its inception in 1994. Many, including the American Hospital Association, advocate for a permanent program in light its benefit to public health in the U.S.  According to American Medical News, foreign medical graduates represent approximately a quarter of the U.S. physician work force, including practicing physicians and physicians-in-training, thus foreign medical graduates are a critical pillar of the public health infrastructure in the U.S.  

The Conrad 30 J-1 waiver process for foreign medical graduates involves an application at the state level, a Department of State recommendation, and, finally, approval from U.S. Citizenship and Immigration Services.  To learn more about the options for foreign medical graduates, contact one of the Maggio + Kattar attorneys with expertise on U.S. immigration options for physicians.

On September 26, 2012, the Ninth Circuit Court of Appeals became the third of the U.S. Courts of Appeal to weigh in on the Board of Immigration Appeals' (BIA) controversial decision in Matter of Wang, interpreting a provision of the Child Status Protection Act. The Ninth Circuit rejected the BIA's decision finding it to be as contrary to the plain text of the statute and, thus, widening a split among the circuit courts as to the proper interpretation of the Child Status Protection Act's automatic conversion and priority date retention provisions.  The Child Status Protection Act is of critical importance in today's environment of lengthy processing times and substantial priority date backlogs as it allows families to continue the process for all family members even after the children turn 21 and would otherwise "age out" of eligibility for certain benefits. The split among the Circuit Courts of Appeal make this issue ripe for review by the U.S. Supreme Court.

Previously, in Matter of Wang, the BIA considered INA § 203(h), which grants some relief to those who are determined to have "aged out" of an immigration benefit. The relevant statutory provision states that if the applicant has "aged out" of the benefit, "the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition." In sum, this subsection requires that a petition both convert to the new, appropriate category for adults, and that the beneficiary be permitted to retain the priority date assigned to the original petition.

However, in Matter of Wang, the BIA narrowly construed the statutory language in INA § 203(h), finding that the term "conversion" has consistently meant that a visa petition converts from one visa category to another without the need to file a new petition, and priority date retention has always applied only to subsequent visa petitions filed by the same petitioner or applicant. For example, a typical scenario would include when a Lawful Permanent Resident (LPR) who petitions for a son or daughter in the second-preference family based immigrant visa category subsequently naturalizes; in this scenario, the BIA acknowledged that the visa petition automatically converts to a first-preference petition, and the newly converted petition retains the original priority date. However, the practical impact of the BIA's decision is that, in most cases, an applicant who has aged out of benefits will require a new immigrant visa petition to be filed, and will not be able to retain the original priority date, thus placing this applicant at the end of a very long waiting line for immigration benefits.

In De Osorio v. Mayorkas, the Ninth Circuit rejected the BIA's interpretation, finding that the language of the statute was, in fact, clear on its face and that the BIA's interpretation was not entitled to deference. The Ninth Circuit joined the Fifth Circuit in finding that the unambiguous language of the statute extends automatic conversion and priority date retention to all aged out derivative beneficiaries of family sponsored petitions. In contrast, the Second Circuit ruled the opposite way in Li v. Renaud, also finding that the statute was clear and that the BIA's decision was not entitled to deference, but finding that an aged out derivative beneficiary of an F2B visa petition was not entitled to automatic conversion and priority date retention when his mother filed a visa petition on his behalf. The Second Circuit held that a change in petitioner foreclosed the possibility of automatic conversion.

The facts of one of the petitioners in De Osorio provide a good example of the benefits of the Ninth Circuit's decision for potential immigrant visa applicants. Ms. De Osorio's U.S. citizen mother filed a petition in the family-based third preference (F3) category (married daughter of a citizen) on her behalf in May 1998. The married daughter's son, who was then thirteen, was included as a derivative beneficiary, but aged out prior to the time that the priority date became current and visas available. After becoming an LPR in 2007, Ms. Osorio filed a visa petition for her son and requested that he retain the original May 1998 priority date, without which he would face a wait of many more years before obtaining an immigrant visa. Under the Ninth Circuit's decision, Ms. Osorio's son will now be able to retain the original May 1998 priority date in pursuing his application for an immigrant visa.

Given the split between the agency interpretation and the circuit courts, more litigation is likely to follow. It may be up to the Supreme Court to finally weigh in on the differing interpretations of the Child Status Protection Act.

The U.S. Citizenship and Immigration Services (USCIS) has received a significantly lower number of Deferred Action for Childhood Arrivals (DACA) applications since June 15, 2012, than was expected. Experts predicted that 1.76 million individuals would apply for the program, while USCIS had anticipated that it would have to process 300,000 applications from eligible DACA applicants by October 1, 2012. However, as of mid September, just over 80,000 requests had been accepted for processing, of which only 29 requests have been completed by the USICS. The top three states from which DACA applications are originating are California with 20,786 applications, followed by Texas and New York. The most common country of origin for applicants so far has been Mexico with 46,391 applications, and trailing behind were El Salvador and South Korea with 3,950 and 2,837 applications, respectively.

Many individuals who are eligible to apply for DACA are taking a "wait and see" approach and have not been as eager, as some had believed, to apply for deferred action. There are several legitimate reasons why the number of DACA applicants has been so low. First, many undocumented youths, especially those who had come to the U.S. as infants, are much attuned to the political atmosphere and they are waiting for the results of the November election before they decide whether to apply. Although Governor Mitt Romney has not yet disclosed in any media interviews what his plans are for the DACA policy if he wins the Presidential election, many young people remain skeptical and fear that DACA will cease to exist without the Obama administration.

A second reason why applications for deferred action under DACA have been relatively few is due to the voluminous nature of the application itself and the difficulty that many young people are facing trying to find documentary proof to satisfy the criteria: entry in the U.S. before their 16th birthday, continuous presence for the past five years, and presence in the U.S. on June 15, 2012. Despite the seemingly arduous documentary requirements, DACA applicants have found creative ways to satisfy these requirements through the use of technology, the Internet and social networks, like Facebook. Moreover, it is helpful that the agency has instructed adjudicators to issue requests for evidence, instead of outright denials, for applications that fall short of the evidentiary requirements.

A final reason why many young applicants have been apprehensive about the DACA program is the lack of details, criteria and process of the deferred active directive provided by the USCIS. When the directive was implemented in June of this year, the Department of Homeland Security (DHS) promised the public that it would be transparent and forthcoming about the adjudication of these applications. However, the Department has neglected to explain the nature of the biographic and biometric background checks that are conducted as part of the adjudication process for every DACA applicant; what agency will be conducting these checks; what databases are queried as part of these checks; the type of queries that are being conducted and what information is provided as a result of the search; at what stage of the background check USCIS consults with the Fraud and Detection and National Security (FDNS) unit; and whether the Department require in-person interviews.  These remain the predominant fears that have dissuaded many eligible young people from applying for DACA.

Jim Alexander and Alix Mattingly (course moderator) will speak at the DC Bar's Continuing Education Program's course entitled: Advising Foreign Nationals on Starting a Business in the United States on Thursday, November 8, 2012. To learn more or to register, click here.  

Anna Gallagher will be presenting at the Federal Bar Association's Nuts and Bolts Seminar on Deferred Action for Childhood Arrivals (DACA) on October 31, 2012.

We look forward to the October Immigration Community Forum co-sponsored byCatholic Charities on "Applying for Benefits and Trouble-shooting Complex DACA Cases."  The forum will be held on Tuesday, October 23rd from 9 am until 11 am. The expert panel will cover the full lifecycle of representing applicants for DACA benefits, including the following: best practices in completing and submitting DACA applications to USCIS; assessing criminal convictions to determine eligibility; timing concerns for individuals in removal proceedings; and, evidence for proving physical presence and continuous residence. The discussion will be led by a panel of experts, including: Peggy Gleason, USCIS Ombudsman Office (invited); Heidi Boas, Catholic Charities; and Anna Gallagher, Shareholder, Maggio + Kattar.  At this time, we are maintaining a waiting list for this event, however, if you wish to be added to this or to receive direct mailings for future events, please email us at  events@maggio-kattar.com.