Resistance Action to Help Dreamers & DACA recipients!

Contact the Biden Administration and urge Mayorkas and Biden to finalize and publish the H-1B modernization rule to move DACA recipients to a more secure status and to expedite the processing of existing applications.

Action #1: Urge DHS Secretary Alejandro Mayorkas to finalize the H-1B modernization rule.

EMAIL: (Here’s our take. We aren’t immigration experts, so we’re emphasizing that he finish the work he started. Use personal stories if you can.)

Sec. Mayorkas, I’m writing to urge you to finalize the H-1B modernization rule. Your actions as USCIS director during the Obama administration to implement the Deferred Action for Childhood Arrivals (DACA) process in just 60 days, protected our friends and neighbors, and there’s no amount of thanks we can give you for that.

However, before the next demonstrably xenophobic administration takes over, PLEASE, make sure that this rule is published in the Federal Register by December 17, and that it includes clarifications on cap exemptions and codification of “deference.” (Note for us: Definitions of these terms are below). We are not immigration experts – you have already received expert advice during the public comment period, such as in the letter from Compete America. (https://competeamerica.org/wp-content/uploads/2024/09/Compete-America-Letter-to-Secretary-Mayorkas-re-H-1B-Modernization-092424.pdf) We are just asking that you take this last step to protect those who have depended on you for so long. Thank you.

Action #2: Urge Secretary Mayorkas to expedite immigration applications!

EMAIL: Sec. Mayorkas, I’m writing to ask you to expedite processing of immigration applications before the Trump administration takes over, especially the following: 

  • all DACA Advance Parole applications
  • DACA renewals
  • I-601 and I-601A applications
  • N-400 applications
  • grants of Bona Fide, Deferred Action and/or Prima Facie on T, U, and VAWA applications and issuing the 5 years work permits to these folks

Mayorkas’s contact info:

Action #3: Urge President Biden to finalize the H-1B modernization rule.

CALL: “I’m calling to ask President Biden’s help in finalizing the H-1B modernization rule and getting it published in the Federal Register by Dec. 17, and to verify that it include clarifications on cap exemptions and codification of “deference.”

EMAIL: (Once again, we’re emphasizing the welfare of our friends and community members. Use personal stories if you can. You are limited to 2000 characters.)

Dear President Biden,
I’m writing to ask that you do everything within your power to finalize the H-1B modernization rule. I’m not an immigration expert – I know it has to be published by December 17, and experts say it needs to include several features, such as cap exemptions and codification of “deference.”(https://competeamerica.org/wp-content/uploads/2024/09/Compete-America-Letter-to-Secretary-Mayorkas-re-H-1B-Modernization-092424.pdf)

I am writing as the friend of DACA recipients who’ve grown up in our schools, who have college degrees, who speak two or more languages, and who perform a wide range of essential services to our country. They are a resource that other countries with similarly aging populations are aggressively competing for, and here we are, prepared to jettison over 800,000 of them from the only lives they’ve ever known as some form of performative cruelty.

You did everything you could in the face of congressional inaction on a parade of bills that would have extended grace to this group. Thank you for issuing an executive order to reinstate DACA and defending it in subsequent court cases. Now I ask that you urge Sec. Mayorkas to get this rule finalized in time so that it can help create protections for those we love until America comes back to its senses.

Deeper Dive

  • We are soo close!: The H-1B Modernization rule is one step away from being finalized, and pushing it across the finish line would help DACA recipients and Dreamers access H-1B visas by making major improvements to the H-1B system, enacting integrity measures, and ease access to H-1Bs for thousands of DACA recipients.
  • More nonprofit employers can participate!: More nonprofit employers would qualify as cap-exempt so they can hire without having to navigate the H-1B lottery. These could include public school systems, local government agencies, and nonprofit organizations.  This is critically important as many Dreamers, DACA recipients, and others could lose protections/work authorizations in the next year due to legal challenges or administrative action.
  • Technical stuff on why this is good for DACA/DREAMERS: H-1B visas are ideal for DACA recipients and Dreamers because they allow for “dual intent,” meaning they won’t be denied if an immigration officer determines the individual plans to pursue permanent residency after the expiration of their visa. This population has grown up in America and would have trouble proving they plan to leave the U.S. after their visa expires. Dreamers, DACA recipients in particular, also tend to have strong educational credentials, with more than a quarter holding an undergraduate degree in a STEM field.
  • We are running out of time: If this rule is not finished this year, however, the next administration can most easily put forward its own views on the H-1B program along the identical lines of what we saw in 2017-2020.  While it’s certainly the case that the new administration could do that in any event, it’s hard work to get a comprehensive rule over the finish line with sufficient policy and legal justification to survive judicial scrutiny, especially when the agency just acted on a final binding rule on the books and would have to justify its new found interpretations.  

WHAT TO SAY:

  • DHS must ensure the rule is published in the Federal Register by December 17.
  • It is especially important that a final rule includes clarifications on cap exemptions and codification of “deference.” “Cap-gap” extension and “normally does not mean always” are also very important and described in more detail below.
  • Finalizing this rule is worth the effort and will yield many benefits. It will:
    • Help provide DACA recipients and Dreamers with better access to legal pathways and protections against continued threats
    • Proactively strengthen and expand pathways available for many immigrants who have critical specialized skills and education
    • Shield this vital program that benefits nonprofit research and higher education

DEFINITIONS OF TERMS

  • H-1B Cap Exemptions: Makes it easier for nonprofit research organizations to qualify as cap-exempt H-1B employers by clarifying that research must be a “fundamental activity” (previously a “primary activity”) of the organization, and for workers to be exempt from caps if they are splitting their time 50-50 (previously “a majority” of their time) between cap-subject and cap-exempt employers. Also relaxes evidentiary requirements for nonprofits to prove qualification for cap-exemption.
  • Deference: Allows USCIS agents to “defer” to prior approvals in cases where parties and material facts remain the same. This saves agents from having to re-assess cases that have already demonstrated eligibility and have been approved before. 
  • “Normally” Requiring a Degree: Regulations governing the H-1B program state that occupations can qualify for an H-1B visa if “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” This clarification would protect employers from being denied an H-1B application for an occupation where individuals could be hired without a degree, even if a degree is typically/usually/normally required. 
  • Cap-Gap Time Extension: Provides automatic extension of duration of status and OPT until April 1 of the following year, so that their status does not lapse between the time OPT ends and H-1B status starts, especially if H-1B processing faces delays.

WHY THE ADMINISTRATION MUST FINALIZE THE RULE NOW: 

The results of the election mean that the Biden Administration must finish this rulemaking process and make the rule effective before December 19, 2024. The people likely to be implementing President Trump’s legal immigration policies have been very clear about their plans to make H-1Bs harder to get, and to target undocumented immigrants for deportation, including those protected by programs like DACA. If the Biden Administration does not finalize this rule, the next administration could use this rulemaking process to fast track those changes.

With these changes, more DACA recipients and Dreamers could qualify for H-1B visas, many without having to navigate the difficult lottery process. Paired with recent improvements to the D-3 waiver process, this could unlock a pathway for them to qualify for and remain in a legal status for many years. While temporary, this could be a bridge to relief in the future and could even unlock a pathway to permanent residency through employer or marriage sponsorship.

Even if finalized now, the rule could still be subject to lawsuits, Congressional review, or future attempts by another Administration to rescind the changes. But these changes will be much more secure if they are fully finalized under this process now.

ADDITIONAL RESOURCES:

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