Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

TOP 9 DAPA QUESTIONS: And the Answers, as Far as We Know

1.     I am not married to my partner, but we have kids together.  Can I still apply?

a.     Yes.  You do not have to be married to qualify for DAPA.  The only time this would be an issue is if the father’s name is not on the birth certificate because the parents were not legally married.  If that is the case, you can simply have the birth certificate corrected in the county where the child was born to reflect the father’s name.  If the child’s mother will not go along with that, a DNA test may be required.

2.     I don’t have any children of my own, but my wife has children that we have been raising together.  Do I qualify?

a.     Yes.  As long as you were married before the children turned 18, immigration considers them your children for purposes of all immigration applications.  If you are not actually legally married, you cannot count these children as yours.

3.     I was deported before 2010, but I came right back to the U.S. after they deported me.  Do I still qualify?

a.     Yes.  As long as you were not deported or absent from the U.S. after January 1, 2010, you still qualify for DAPA.  Old deportations simply do not affect a person’s eligibility for DACA.

4.     My child has DACA, but I don’t have children that are citizens or permanent residents.  Can I still apply?

a.     Unfortunately, the answer is no.  DAPA only grants work authorization to parents of U.S. citizens and permanent residents.  The president chose not to include parents of DACA children in the DAPA program.

5.     I was arrested and convicted of DUI ten years ago.  Am I eligible for DAPA?

a.     We do not have a solid answer to this question yet.  There are rumors that immigration will still grant DAPA to people who were convicted more than 5-7 ago.  However, there are other rumors that even one DUI will disqualify someone.  We will have to wait and see what guidance immigration gives on this in the coming months.

6.     Do I qualify even if I have not filed taxes during my time working in the U.S.?

a.     As of now there is no requirement that you have paid or filed your tax returns.  This may change, but if it does you would likely only be required to pay from 2010 to now.  What we are safe in assuming is that if you are granted DAPA for three years, and you then want to renew your work permit, you will most likely be required to show that you filed your taxes for the years you worked with your work permit under DAPA.

7.     What happens after Obama is no longer president?  Does the program go away?

a.     We have no way of knowing for sure what will happen once Obama is no longer president.  This will likely depend on two main factors: if a more comprehensive immigration reform is passed in 2015, and if a republican or democrat is elected the next president.  If a more comprehensive reform is passed next year, DAPA won’t really matter too much since people will likely have something even better to apply for.  If reform does not happen and a republican is elected, the new president could cancel DAPA, but even if they do immigration has no way of rounding up 4,000,000 people and deporting them all so at worst, you would have had a work permit for two years.

8.     Can I leave the U.S. once my DAPA application has been approved?

a.     Yes.  You will be able to apply for travel authorization and return to your home countries in most cases. 

9.     I have five convictions for driving without a license.  Will those convictions keep me from qualifying for DAPA?

a.     No.  If you have convictions for traffic offenses such as no license, these convictions will not disqualify you for DAPA.  

Liable for Back Wages After Termination of H1B employee? Maybe Not Anymore!

By Anna Erwin, Associate Attorney

Has your employment been terminated while under H-1B status or have you terminated an H-1B employee? The standards under immigration law for what a previous H-1B employee can receive in back wages after termination are now significantly affected by whether the employee obtains subsequent employment after termination.

H-1B status is of particular benefit to foreign national employees in the U.S. because they can transfer their status to a new employer. An H-1B transfer employee also benefits the employer because that transferred employee does not count against the H-1B visa cap for that year. But if the employer/employee relationship is terminated during the employee's H-1B status, both sides must be aware of back wage eligibility or liability.

The Basis for Back Wage Liability

In Amtel Group v. Florida, Inc., the Administrative Review Board found that for an employer to avoid liability after the termination of an H-1B employee, the employer must: 1) expressly notify the H-1B employee of the termination; 2) notify USCIS that the employment relationship has been terminated so that the I-129 is cancelled; and 3) pay for the H-1B employee’s transportation home. If the employer does not follow these steps, it can be held liable for back wages to the employee, possibly throughout the duration of the employee's H-1B status.

However, a recent case, Batyrbekov v. Barclays Capital, held that employers are not liable for back wages when the employee successfully transfers his H-1B status to a new employer, even when the requirements of Amtel are not met.

In this case, the employee, Batyrbekov, was terminated by Barclays Capital. Barclays notified Batyrbekov of his termination but neglected to notify USCIS of the termination. Barclays also did not initially pay for Batyrbekov’s travel to his home country, but rather reimbursed him several months after he left the country.

Batyrbekov initiated his case to collect back wages, eight months after the termination, because Barclays did not follow the Amtel requirements for termination. Since Barclays did not follow the requirements, Batyrbekov thought he was going to get his back wages.

However, after Batrybekov was terminated, he transferred his employment under his H-1B status to another employer. This subsequent job fell through after Batyrbekov transferred, and Batyrbekov left the United States.

Impact for Both Employers and Employees

The Administrative Review Board found that, although Barclays did not follow the Amtel requirements, and Batyrbekov's subsequent employment to which he transferred fell through, Barclays was not liable for back wages. The ARB stated that when an H-1B employee is terminated but successfully transfers his H-1B status to another employee, the original employer's back wage liability ends once USCIS approves the change in the H-1B's employer.

The only requirement on behalf of the original employer is that the employee be expressly notified of termination. The other Amtel requirements do not have to be met to avoid back wage liability when the employee successfully transfers his H-1B to another employer.

The Batrybekov case is significant for employees and employers:

·         Employees whose termination does not meet the Amtel requirements who are offered other employment will want to be absolutely sure that the new job is stable before transferring status. Otherwise of claim on back wages may not be upheld.
·         Employers will want to investigate a past employee's subsequent employment if asked to pay back wages to ensure the legitimacy of the claim.

If you are an H-1B who has been terminated or an employer who has terminated an H-1B contact our immigration team to discuss your legal liabilities or options.