The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

DACA – What to Do While Awaiting Possible Reform?

DACA Recipients and Employers. It has been over a month since the current administration announced that it would be ending President Obama’s executive order known as DACA- or deferred action for childhood arrivals.  President Trump has urged Congress to take action with respect to the “dreamers”- those undocumented immigrants who came to the US as children, who have no criminal record and are generally either students or employed.

Unfortunately, the current state of affairs creates a great deal of uncertainty for DACA recipients, their families, and their employers.  A legislative solution is a possibility, but no one can be sure what that will entail and whether it will get through Congress.

In the meanwhile, what should DACA recipients or their employers do to avoid the potentially harsh consequences of losing this form of relief?

First of all, an immigration attorney should be consulted to discuss all potential avenues for relief.  There may be immigration benefits available which would only be discovered after a thorough discussion with an attorney about the individual’s family, how and when they entered the US, their employment and education, whether they are a victim or witness to criminal activity, or may be a victim of abuse or human trafficking.  For example, some individuals may have a claim to citizenship through a parent that was a citizen.  Some may be eligible for relief based on their level of education or outstanding achievement in their field of study or employment.  Still others may be eligible for relief if they have assisted or cooperated with law enforcement in the prosecution of crime.

There have been reports of the potential effects of DACA on employers around the country, who may lose valuable employees and suffer as a reduced labor force.  An employer may be able to assist a DACA recipient by filing an employment-based petition or by helping the employee in finding and retaining an immigration lawyer to explore the potential forms of relief available.

Finally, DACA recipients and their employers must keep abreast of legislative, administrative, and executive changes that affect their status to be prepared to apply for any new forms of relief that become available as soon as possible, and to avoid violating immigration or labor laws.

H-1B Visa Enforcement under the new administration

Since taking office in January, President Trump and his administration have announced a “targeted approach” in the investigation of employment-based visa fraud.  Therefore, it is important for employers who hire foreign nationals on a temporary basis under the H-1B visa program to comply with the law and regulations of the program.

The H-1B visa program allows employers to temporarily hire highly skilled foreign nationals in specialty fields when there is a shortage of US citizens or lawful permanent residents to fill those positions.   Employers must meet specific requirements, such as filing a labor condition application with the Department of Labor.  This application requires an employer to establish that foreign nationals will be paid in accordance with the actual and prevailing wage, and that working conditions will be equivalent for both American and foreign nationals, to avoid unfair competition that arises when foreign workers are paid less than US citizens or lawful permanent residents for the same positions.

According to a recent press release, U.S. Citizenship and Immigration Services (USCIS) will conduct site visits to employers with a focus on:

  • Cases for which USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

If you are an employer of foreign nationals, it is important to remain informed of policy changes and the enforcement priorities under the new administration.  The lawyers at The Mazza Law Group are closely monitoring new developments in the law and policy on a daily basis.  If you need representation in an immigration matter, please call our office to schedule a confidential consultation today!

Immigration Status following Inauguration

What does the change in administration, and potential change in immigration policy mean to my immigration status?

Given that a new President is being Inaugurated, many immigration lawyers have been receiving an increased number of inquiries from individuals concerned about whether the new administration’s immigration policies will affect their status, or their plans to apply for a green card, citizenship, employment authorization, or any other immigration benefit.

Right now, our country’s immigration statute, the INA (Immigration and Naturalization Act) remains in full force and effect.  Any changes to that law would require an act of Congress.

However, there are areas of immigration law that have been shaped by Executive Actions- for example, the Deferred Action for Childhood Arrivals (commonly known as DACA) which was enacted in 2012 by President Obama and expanded immigration benefits.  Another example of an Executive Action, which limited immigration benefits, was President Obama’s recent decision to end the policy which allowed Cuban refugees who reached the shores of the United States to have a fast track to permanent residency. The executive branch of our federal government also has the ability to make priorities in terms of enforcement of the immigration laws which are in place.

Right now, there is no way to accurately predict which Executive Actions will be issued, what prosecutorial discretion will be exercised, and how immigration policies will change in the coming months and years.

Now more than ever, it is important to consult an immigration lawyer before filing any immigration applications.  Immigration lawyers will be diligently reviewing any new Executive Actions or changes in the law and policy and can advise you of the best course of action in your case.

If you have a question about becoming a legal permanent resident, citizen, or have any other question about your immigration status or that of a loved one, contact the Immigration Lawyer at the Mazza Law Group.

Immigration Law Update: Removal based Aggravated Felony

Immigration Law Update: In a decision which will impact consequences of criminal convictions and limit immigration benefits, on May 19, 2016, the Supreme Court decided in Luna Torres v. Lynch that certain state, local, and federal offenses are “aggravated felonies”. Under the Immigration and Naturalization Act (INA), an alien (non-citizen) convicted of an aggravated felony can be subject to removal (deportation).

George Luna Torres had been a lawful permanent resident (green card holder) in the United States since he was a child.  In 1999, he was convicted of third degree arson in New York State, and was sentenced to one day in jail and five years of probation.  Some seven years later, immigration officials discovered the conviction and placed him in removal proceedings. He applied for a benefit known as “cancellation of removal” which allows an immigration judge some discretion to consider mitigating factors and cancel the deportation proceedings.  The judge found that because his offense was an “aggravated felony” he was unable to grant cancellation of removal, regardless of any mitigating factors on behalf of Mr. Luna Torres.

The court’s decision hinged on whether the third degree arson was described in the list of aggravated felonies- which includes enumerated federal offenses or state, local or foreign offenses that are “described” in the list of federal offenses.  Torres argued that his third degree arson was not “described” in that list because it lacked one element of the federal arson statute- the element requiring a connection to interstate commerce.

The Supreme Court decided that element is jurisdictional in nature, and its absence did not remove the arson from classification as an aggravated felony. Therefore, the ruling denying relief was affirmed.

Any alien facing a criminal charge should consult a lawyer with knowledge and experience in both criminal and immigration law to learn whether the charge is an “aggravated felony” under the INA.  Contact the Mazza Law Group today to talk to an experienced lawyer who can help you if you have an immigration issue relating to a criminal offense, or if you are a non-citizen charged with a crime.

Immigration Law – Student Visa

Student Visa – Immigration Law: Extension of Optional Training Period for certain foreign students extended- new rules take effect May 10, 2016

An immigration benefit for students has recently been expanded.  Certain foreign nationals with student visas who earn degrees from US institutions of higher education in the fields of science, technology, engineering or mathematics (STEM) may remain in the country for Optional Practical Training (OPT) after completing their studies.  Students with student visas who have been granted permission to remain in the United States for twelve months of OPT may now extend their stay for an additional 24 months, pursuant to rules set forth by the Department of Homeland Security (DHS) and which go into effect on May 10, 2016. This replaces the prior 17-month extension that was already in effect.  In order to qualify, the OPT must be in same field as the student’s primary area of study.

Along with the additional immigration benefit, regulations and oversight have been put into place along with this extension.  For example, employers must provide a formal training plan, DHS may conduct announced and unannounced site visits, and US full, part-time, permanent or temporary workers may not be replaced by students in OPT programs.  Students and employers will also be required to complete evaluations and report their progress to DHS throughout the period of training. They must also report any changes to the training program or employment status.

These regulations may benefit many current students and recent graduates of Penn State.  If you are a student or an employer and have a question about a student visa or other immigration law matter, call The Mazza Law Group to speak with an immigration lawyer who can explain your rights and the benefits for which you may be eligible.