Tag Archives: DACA

DREAMers Face Uncertainty as Trump Administration Ends DACA and Leaves the Fight Up to a Divided Congress

On his campaign trail,  President Trump said he would “immediately terminate” DACA – the Deferred Action for Childhood Arrivals program introduced by the Obama Administration in June 2012.  Although it took several months to make a decision, the Trump Administration issued a memorandum on September 5, 2017, to end the program.

As of this date, no new, initial DACA applications will be accepted. Current DACA holders whose benefits expire on or before March 5, 2018, may file for a renewal, valid for 2 years, by October 5, 2017.

Almost 800,000 eligible, undocumented immigrants have received DACA as a temporary relief from removal, which includes work authorization valid for two years. Commonly known as “DREAMERs,” DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, have lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

DACA, however, has always been a temporary relief subject to rescission by a new Administration and which provided no path to lawful nonimmigrant status, permanent residence, or citizenship.

The DACA program was introduced by the Obama Administration in a  June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children. Critics viewed it as an unconstitutional use of power by the Executive Branch. Supporters saw it as an extension of prosecutorial discretion related to immigration enforcement priorities and necessary protection for undocumented immigrants who came to the United States as children and grew up in the country.

Federal court litigation ensued, in which a Texas-led coalition of 26 states  — including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin — filed a lawsuit to stop the expansion of DACA and the introduction of a similar relief, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In January 2017, after taking office, President Trump stated in an interview with ABC’s David Muir that a new policy would be issued within weeks, but that DACA recipients “shouldn’t be very worried.” He further commented: “I do have a big heart. We’re going to take care of everybody…But I will tell you, we’re looking at this, the whole immigration situation, we’re looking at it with great heart.”

Meanwhile, Attorney General Jeff Sessions continued to hold a hardline, calling DACA an “unconstitutional” act by Obama that has “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” Sessions made the announcement in a September 5th news conference that the Trump Administration will phase out the DACA program.

On Twitter, following Sessions’ remarks, President Trump wrote, “Congress now has 6 months to legalize DACA (something the Obama administration was unable to do.) If they can’t, I will revisit this issue!”

In a written statement issued after Sessions’ announcement, Trump said, “I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

“We will resolve the DACA issue with heart and compassion — but through the lawful democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” Trump added.

There are at least four bills being discussed in Congress that provides protection to DREAMErs. They include the Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C; Recognizing America’s Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.; American Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.; and BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo. The first three creates a path for citizenship or permanent resident status if applicants meet certain requirements. The fourth seeks to codify the current DACA program into law and extend it for three years (but offers no path to permanent residence or citizenship), giving Congress more time to enact comprehensive immigration reform.

Trump gave Congress six months to fix the broken immigration system, but there are diametrically opposed viewpoints within the Senate and House: some call for tougher border security and immigration enforcement, while others seek protection from removal and a pathway to permanent residence and citizenship for certain undocumented immigrants who came to the U.S. as minors.

Congress has struggled for several years to resolve big legislative issues like immigration. As such, six months make a very short period to tackle the monumental problem of DACA holders losing protection from removal and authorization to work in the United States.

With a divided Congress, the fate of DREAMers is uncertain. In addition to filing for DACA renewal, if eligible, and tracking legislative action in Congress, DACA holders should consult an immigration attorney to discuss other more concrete, existing immigration options.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Lian Xiaoxiao

Trump Administration ends DACA: no new applications accepted as of September 5, 2017; renewal applications accepted up to October 5, 2017

On September 5, 2017, the Trump Administration announced the ending of Deferred Action for Childhood Arrivals (DACA) program – a temporary immigration relief that was introduced by the Obama Administration on June 15, 2012. In the Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) from DHS Acting Secretary Elaine Duke, and related FAQs, the Administration set forth the following steps to end the program:

Initial DACA (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): U.S. Citizenship & Immigration Services (USCIS) will adjudicate, on a case-by-case basis, properly filed initial DACA requests and associated applications for work authorization that were received by September 5, 2017. All initial DACA requests received after September 5 will be rejected.

DACA Renewal (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): USCIS will adjudicate, on a case-by-case basis, properly filed renewal DACA requests and associated applications for work authorization, from current DACA holders, that were received by September 5, 2017.

USCIS will also accept and adjudicate DACA renewal requests from current DACA holders whose benefits will expire on or before March 5, 2018, as long as they are received by October 5, 2017.

USCIS will reject all DACA renewal requests that do not fit this criteria, including all applications received after October 5, 2017.

Applications for Advance Parole (Travel Document) Based on DACA Grants: As of September 5, USCIS will not approve any new DACA-based applications for Advance Parole/travel document (Forms I-131). USCIS will administratively close all pending applications for advance parole and refund the filing fees.

The Department of Homeland Security (DHS) will generally honor the validity period for previously approved applications for Advance Parole, but the U.S. Customs & Border Protection (CBP) retains the authority to determine whether to admit persons who present themselves at a U.S. port of entry, as a matter of discretion. USCIS also retains authority to revoke or terminate an advance parole document at any time.

Why is the DACA program ending?

The DACA program was implemented by a June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children.

The Obama Administration planned to expand the DACA program in February 2015 and introduce the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015. These plans, however, were halted after a Texas-led coalition of 26 states filed a lawsuit in the U.S. District Court for the Southern District of Texas to stop the rollout.

On February 16, 2015, U.S. District Court Judge Andrew Hanen in Texas issued a temporary injunction blocking the implementation of the expanded DACA and the new DAPA.  On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allowed the  temporary injunction to stand.

In a June 29, 2017 letter to Attorney General Jeff Sessions, Texas and nine other states requested that DACA be phased out and DHS rescind the June 15, 2012 memorandum and not renew or issue any new DACA permits. They stated that if the Trump Administration agrees to rescind the June 15, 2012 DACA memorandum, they will voluntarily dismiss their lawsuit pending in the Southern District of Texas; otherwise, the complaint will be amended to challenge the existing DACA program.

During his election campaign, President Trump promised to end DACA. After Trump took office on January 20, then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June 2017. USCIS, however, continued to approve both initial and renewal DACA applications.

In its decision to end the DACA program, the Trump Administration considered the federal court rulings in ongoing litigation and the September 4, 2017 letter from the Attorney General to the DHS Acting Secretary, noting that DACA was an “unconstitutional exercise of authority by the Executive Branch” and calling for a wind-down process.

Who is affected?

Almost 800,000 persons have received DACA since the program began in June 2012. DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

How does the ending of the DACA program affect DACA holders? 

Employment Authorization 

DACA holders with a currently valid Employment Authorization Document (EAD) may continue to work lawfully in the United States. DHS does not plan to terminate or revoke any previous grants of DACA or work permits solely due to the ending of the program.

Advance Parole/Travel Authorization

DACA holders with a valid Advance Parole document, who are outside the United States, should be able to reenter the country. But Advance Parole has never guaranteed admission to the United States by the CBP, which maintains authority to decide whether to grant entry or deny it. The DHS may also revoke or terminate a grant of Advance Parole at any time, including when the DACA holder is outside the United States, which would prevent reentry to the country.

Immigration Enforcement

In the FAQs related to the September 5, 2017 memorandum ending DACA, the Trump Administration stated ,“[i]nformation provided to USCIS in DACA
requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets 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.

Explore Other Options

The DACA program provides authorized stay, work authorization, and temporary protection from removal (deportation), but no lawful nonimmigrant status or path to permanent residence. DACA recipients ought to be exploring other options to legalize their status, preferably before the program ends.

For example, if you are a DACA holder who is married to a U.S. citizen, your spouse may file an I-130 immigrant petition for you, and you may seek to obtain an immigrant visa at the U.S. Consulate or adjustment to permanent resident status within the United States in the immediate relatives category.

Adjusting to permanent resident status requires lawful admission to the United States. If you entered the country unlawfully, without presenting yourself for inspection, you normally must depart the country to apply for the immigrant visa overseas. Departure from the United States (without Advance Parole) triggers the 3/10 year unlawful presence bar.

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

You begin to accrue unlawful presence only after April 1, 1997 and once you turn age 18.

The 3/10 year bar to re-entry is triggered only if you leave the U.S. This does not mean you should never leave the U.S. to legalize your immigration status, but you should know there are risks to your departure. (Illegally re-entering or attempting to illegally re-enter the U.S. further complicates your case and triggers a permanent bar under certain circumstances.)

A person who is inadmissible due to the 3 year/10 year bar may not receive an immigrant visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver or I-601A waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act.  To be eligible for the waiver, you must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer “extreme hardship” if you are not granted the immigrant visa and admitted to the United States.

Consult an Immigration Attorney

The American Immigration Council issued a September 5, 2017 Practice Advisory describing other possible forms of relief, such as adjustment of status, U and T visas, asylum, and special immigrant juvenile status.

DACA holders must consult an experienced immigration attorney to discuss whether they are eligible for other immigration options that are more lasting than DACA and could lead to permanent resident status.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Antony Theobald

The Trump Factor on Immigration: To Fear or Not to Fear?

Donald Trump’s Administration will begin when Barack Obama’s ends on January 20, 2017. The risk of deportation is expected to get higher for unauthorized immigrants, particularly those with illegal entries and certain criminal histories. A Trump Administration could also repeal Obama’s Deferred Action for Childhood Arrivals Program (DACA) and set the stage for H-1B (professional worker) visa reform.

These are just some of the potential changes in U.S. immigration, if you accept Trump’s rhetoric at face value.

Here’s how the Trump Factor could affect immigration if his 10 Point Plan to Put America First and election campaign promises are carried out: 

1. “Begin working on an impenetrable physical wall on the southern border, on day one.”  (#1 on Trump’s 10 Point Plan)

“Build that wall! Build that wall!” was a popular chant at Trump’s campaign rallies. According to Trump, the wall would cover 1,000 miles of nearly 2,000 miles of the southern U.S-Mexico border, with half of that protected by natural barriers.

As of today, there are already 700 miles of border fencing and some of it includes metal wall. There are also U.S. Border Patrol agents, drones, scanners and cameras protecting the border. A record number of removals and returns occurred under Obama.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

Whether “an impenetrable physical wall” is built will depend on various factors, including who pays for it. Trump says Mexico will foot the bill. Otherwise, it might take an act of Congress to obtain funding for the wall.

A wall is mostly symbolic. It’s not enough to keep out unauthorized immigrants, especially those possessing fraudulent travel documents or those misusing their visas or the visa waiver program. Border security requires constant monitoring by properly trained CBP agents.

2. “End catch-and release.” (#2 on Trump’s 10 Point Plan)

Ending the so-called “catch-and release” policy will bring more serious immigration consequences to noncitizens stopped at the border. Trump’s plan is to detain anyone who illegally crosses the border until he/she is removed from the country.

In November 2014, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal of undocumented immigrants. The policy divided enforcement priorities into three general categories:

Priority 1: Aliens who pose a threat to national security, border security, or public safety.

Priority 2: Aliens who are misdemeanants and new immigration violators.

Priority 3: All other immigration violators.

The Policy Memorandum instructs the agencies to focus on priority one and priority two offenders. If the Memorandum is withdrawn by Trump, each local ICE agency will have more freedom to decide who it wants to remove from the U.S.

Policy Memorandums are opinion letters from agency heads instructing CBP, U.S. Immigration & Customs Enforcement (ICE) and U.S. Citizenship & Immigration Services (USCIS) how to enforce current law. The Trump Administration may readily revoke Policy Memorandums, and replace them with new, hard-line ones – consistent with laws already passed by Congress

While the Obama Administration prioritized the removal of criminal non-citizens and repeat offenders, Trump has vowed to detain all persons who enter the U.S. illegally and spare no group of unauthorized immigrants. This spells an increase in immigration detention, removal proceedings before immigration courts, and expedited removal at the border or ports of entries.

Resources are limited. If there is no formal prioritization for immigration enforcement, more immigration judges and prosecutors will be needed to prevent increased backlog in the removal system.

3. “Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement.” (#3 on Trump’s 10 Point Plan)

Criminal aliens” is a very broad term. “Aliens” include lawful permanent residents (green card holders) because they are not U.S. citizens. Criminal offenses range from misdemeanors to felonies.  There are various types of crimes, such as DUI, assault, drug possession, theft, fraud, domestic violence, and murder.

Criminal convictions can lead to a non-citizen being deported from the U.S., denied entry (or reentry) into the U.S., and stripped of immigration benefits, including permanent residence. The immigration consequences continue long after the person has already served his sentence.

But under current immigration law, not all non-citizens with criminal offenses are subject to removal or denial of entry on crime-related grounds. For example, a noncitizen is deportable if convicted of a Crime Involving Moral Turpitude (other than a political offense), but only when it was committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed.

In addition, the U.S. Constitution provides due process and equal protection to all persons, including “criminal aliens. ” In a 2001 case, Zadvydas v. Davis, the U.S. Supreme Court reaffirmed that the due process clause applies to aliens whose presence may be or is “lawful, unlawful, temporary, or permanent.”

Existing immigration law also permits defenses against removal and applications for relief from removal before the Immigration Court, if the person is eligible.

Due to Constitutional rights, legal obstacles, and limited cooperation from certain local law enforcement agencies, it will be very difficult for the Trump Administration to move criminal aliens out day one.

Still, Trump will get help from the U.S. Attorney General, who is in charge of the Justice Department’s Executive Office for Immigration Review, including the immigration courts. The office sets standards for hiring and selecting immigration judges, and for training them on how to apply immigration law.

Sen. Jeff Sessions (R-Ala.) has been picked by Trump for Attorney General and, if confirmed, will influence immigration policy. The Attorney General may issue legal opinions to promote executive actions; hire more hard-line judges for federal immigration courts; and challenge the legality of state immigration policies.

4. “End sanctuary cities.” (#4 on Trump’s 10 Point Plan)

Since Trump’s election, many “sanctuary” counties and cities, like New York, Minneapolis-St. Paul, San Francisco and Seattle have vowed to limit their cooperation with federal immigration authorities. They won’t stop immigration authorities from enforcing federal law within their boundaries. But they will focus on local law enforcement so residents don’t avoid talking to the police out of fear of deportation risks.

An “immigration hold” (detainer) is one of the key tools ICE agents use to apprehend individuals who come in contact with local and state law enforcement agencies and place them in the federal removal process.

An ICE detainer is a written request to a local jail or other law enforcement agency to detain persons for an additional 48 hours (excluding weekends and holidays) after their release date to permit ICE to decide whether to take them into federal custody for removal purposes. ICE detainers are not followed in some counties and they have been challenged in federal courts.

Threats to cut federal funding to “sanctuary” counties and cities do not make an effective long-term strategy.

5. “Immediately terminate President Obama’s two illegal executive amnesties.”  (#5 on Trump’s 10 Point Plan)

During his two-term Administration, Obama has never granted “amnesty” – at least not to the extent that President Reagan did when he signed the 1986 Immigration Reform and Control Act that permitted 3 million undocumented immigrants to apply for lawful immigrant status.

Through executive policy, Obama introduced the Deferred Action for Childhood Arrivals (DACA) program on June 15, 2012. DACA was made available to undocumented immigrants who were under the age of 31 and who came to the U.S. before age 16. Certain other eligibility requirements also have to be met, such as no conviction of a felony, significant misdemeanor,or three or more other misdemeanors, and no threat to national security or public safety.

While DACA provides relief from removal, work authorization, and authorized stay in the U.S., it does not offer a path to permanent residence or citizenship or provide lawful immigration status in the U.S. Moreover, USCIS may share the information in a DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

The expanded DACA and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs, that were expected to kick in on February 18, 2015 and May 19, 2015, respectively, were put on hold by a federal court injunction.

In a February 16, 2015 decision, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA. Then in a June 23, 2016 decision, the U.S. Supreme Court affirmed the judgement in a 4-4 decision, effectively blocking the programs from being rolled out.

DACA and DAPA were intended to protect undocumented immigrants in low-priority categories from removal and bring them out of the shadows. But in his 10 Point Plan, Trump notes, “Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws in this country.” Taken literally, this statement reveals that even undocumented immigrants who came to the country illegally as children, and who grew up in the U.S., do not have to be considered low priority for removal.

There is a growing fear of detention and removal among DACA recipients, who listed on the DACA applications all their residential addresses from the time they entered the U.S. Locating DACA recipients is easier than finding undocumented immigrants who never applied for the relief.

Some immigration attorneys are advising DACA recipients to avoid filing for renewals at this time, until the future of the program is decided after Trump takes office. Others recommend DACA renewals be filed while the program is still intact.

During his campaign, Trump promised to rescind such executive actions and orders by Obama. He may revoke DACA altogether or issue an order preventing new DACA applications or renewals. Whether the Trump Administration will use the addresses on the DACA applications to initiate removal proceedings is a concern. But for practical, political and financial reasons, Trump will likely prioritize removal of unauthorized immigrants with serious criminal records, just like Obama.

A repeal of Obama’s executive actions does not prevent immigrant relief passed by Congress. On December 9, 2016, Sen. Dick Durbin (D. Ill.) and Sen. Lindsey Graham (R-S.C.) introduced legislation called the Bar Removal of Individuals who Dream and Grow Our Economy (BRIDGE Act), to protect persons who would otherwise qualify for DACA.

6. “Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.” (#6 on Trump’s 10 Point Plan)

The President sets the number of refugees who will resettle in the U.S. each year. The Obama Administration met its target of settling at least 10,000 Syrian refugees in the U.S. by the end of fiscal year 2016. On the other hand, Trump expressed his intent to halt the Syrian refugee program and “suspend immigration from terror-prone regions where vetting cannot safely occur.” The regions include Syria, Afghanistan and Somalia, which produce half of the world’s refugees.

The Trump Administration could also implement additional security protocols to make it harder for applicants who are Muslim, believed to be Muslim, or from Muslim-majority countries to obtain visas, especially tourist/visitor visas and other nonimmigrant visas. Trump may issue an executive order to temporarily suspend or cancel entry to the U.S. on nonimmigrant visas from target countries. Even if such a policy is eventually struck down by the courts, it will slow down visa processing for all applicants.

The processing of I-130 (family-based) and I-140 (employment-based) immigrant petitions, which is the first step in obtaining an immigrant visa at the U.S. Consulate, is unlikely to be affected by a Trump Administration. Filing fees, not tax dollars, provide funding for USCIS’ review of immigrant petitions. The availability of immigrant petitions in the family-based and employment-based categories is also governed by statutory law, not by the President.

Immigrant-based visas such as the F-1 fiance visa and CR immigrant visa already have strict requirements. Nevertheless, the Trump Administration could suspend the issuance of such visas until more vetting mechanisms are implemented.

6. “Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.” (#10 on Trump’s 10 Point Plan)

Legal immigration is governed by regulations and legislation, not by a President’s executive action. The President’s immigration policy must operate within the bounds of existing law. The President has limited power to regulate and deregulate. Only Congress has power to introduce and pass immigration laws.

Regulation

A regulation is much harder to rescind than an executive order. The Administrative Procedure Act requires all regulations to be published in the Federal Register, undergo public notice-and-comment, receive financial consideration by the Office of Management and Budget, and be finalized for rulemaking. The I-601A Provisional Unlawful Presence Waiver is one example of a regulation.

Under statute passed by Congress, a person is generally barred from reentering the U.S. for 3 years if he accrued more than 180 days to less than 1 year of unlawful presence before leaving the U.S. The bar to reentry is 10 years if the unlawful presence lasted 1 year or more. The 3/10 year bar is triggered when the person departs the U.S. (without advance parole) to apply for an immigrant visa. The unlawful presence waiver, which is available under statutory law, excuses certain eligible persons from the 3/10 year bar.

On March 4, 2013, the Obama Administration introduced the I-601A regulation modifying the process for applying for the unlawful presence waiver. It allows eligible immigrant visa applicants to file for the waiver while they are still in the U.S. if the 3/10 year bar is the only ground that prohibits reentry to the U.S. The final rule expanding the I-601A waiver to all statutorily eligible applicants went into effect on August 29, 2016.

A new President may suspend the effective date of regulations that have yet to take effect. During the suspension, the Administration decides whether to begin a regulatory process to repeal the regulation and prevent it from taking effect. For regulations passed in approximately the last eight months of the prior Administration, the new Administration may ask Congress to use the Congressional Review Act to overturn a recently issued regulation. The Act, however, may not be used on any regulations issued before May 2016.

If Trump wants to change or cut the I-601A waiver process, he will have to introduce a new regulation, have the regulation go through public notice-and-comment, make adjustments, and then have the final rule published. While elimination of the I-601A process is possible, this does not seem to be a high priority for Trump.

Legislation

Legislation, passed by Congress, is the toughest to repeal and replace. Comprehensive Immigration Reform has been discussed extensively, but no new broad bills have been enacted for decades. Although the House and Senate are controlled by Republicans, they do not all agree with Trump’s proposed plans.

Permanent changes to the Immigration and Nationality Act, which governs legal immigration, including which persons are eligible for permanent residence, naturalization, or relief from removal,  requires an act of Congress. Legislative changes require approval of bills by both the House and Senate.  The President has limited veto power.

Trump’s 10 Point Plan promises to return U.S. jobs to U.S. workers. He vowed to suspend the North American Free Trade Agreement (NAFTA), a three-country accord negotiated by the governments of Canada, Mexico, and the U.S., which went into effect on January 1994. The treaty contains the TN visa category for professionals from Mexico and Canada.  If Trump suspends NAFTA, the TN visa could also go away.

Trump has also criticized the H-1B professional program. With an annual cap of 65,000 per year, plus an additional 20,000 for foreign workers with a U.S. master’s degree or higher, the H-1B program is subject to legislative changes by Congress.

With U.S. business interests at stake, and general support of the H-1B program from both Republicans and Democrats in Congress, the nature of H-1B reform (if any) is uncertain. An expansion of the H-1B visa program is unlikely if the Republican-controlled Congress falls in line with Trump’s promises. Instead, Congress could introduce an American-worker-first element that requires recruitment of U.S. workers prior to filing an H-1B petition for a foreign worker.

To Fear or Not to Fear? 

Trump’s 10 Point Plan and campaign promises are a legitimate source of fear for immigrant communities. But campaign talk is not always followed by action. U.S. Presidents lack unfettered power, fail to carry out plans, and do the opposite or a watered-down version of what they said they would do.

No one can fully predict the impact of a Trump Administration on immigration. Uncertainty breeds fear. But the fear is not necessarily based on reality.

If you are an undocumented immigrant or noncitizen with concerns about removal from the U.S. or being denied entry into the U.S., your best step is to consult an immigration attorney about your options under current law, regulation or policy. An experienced and attentive attorney can also guide you through immigration changes under a new Administration.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: BBC World Service

Applying for DACA? Here are the pros and cons

The Deferred Action for Childhood Arrivals (DACA) program doesn’t come close to the proposed DREAM Act, which offers undocumented immigrants, who came to the U.S. as children, a path to permanent residence or citizenship.

But DACA offers key benefits, including relief from removal and work permits for three years.

Qualified applicants must weigh the pros and cons before filing a DACA request.

 

Who Qualifies for DACA?

DACA was introduced in 2012 by then-DHS Secretary Janet Napolitano. You may apply for DACA by filing a Form I-821D along with your Form I-765 and documentation proving that you:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007;
  • Are at least 15 years old (unless you are in removal proceedings or have a final removal or voluntary departure order, in which case you may apply even if you are under 15);
  • Were physically present in the United States on June 15, 2012, and at the time of filing your DACA application with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The new DACA – which was expected to roll out on February 18 but was temporarily blocked by a federal court order – expands relief to those who:

  • Entered the United States before January 1, 2010, instead of before June 15, 2007;
  • Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
  • Are out of status as of November 20, 2014, rather than as of June 15, 2012
  • Are of any age (removes age limit requiring the person to be born since June 15, 1981, as long as the person entered the United States before age 16).

[UPDATE #1 : On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

What Are the Pros and Cons of Applying for DACA? 

PROS

Here are a few reasons to apply for DACA:

You get relief from removal and work authorization for three years

Previously, the deferred action period and work permits under DACA were issued in two-year renewable periods. As of November 25, 2014, these benefits are extended to three years and may be renewed as long as DACA continues.

Those who are currently in removal proceedings, have a final removal order, or have a voluntary departure order can also file for DACA. If you are in immigration detention or in the custody of Immigration & Customs Enforcement (ICE), you must first obtain your release as a DACA-qualified applicant. If you are released from custody, you may then file your DACA request with USCIS.

You are in authorized stay and are not accumulating unlawful presence

DACA is a form of authorized stay in the U.S. This means you are not accumulating unlawful presence during the deferred action period.

Normally, you begin accumulating unlawful presence in the U.S. once you turn 18, which may bar you from reentry to the U.S. for three or ten years (even if you otherwise qualify for an immigrant visa or green card). If you are unlawfully present in the U.S. for more than 180 days but less than 1 year, you are barred from re-entering the U.S. for three years. If the unlawful presence is 1 year or more, you are barred from re-entering the U.S. for 10 years.

If you came to the U.S. illegally, you must usually depart the U.S. to consular process your immigrant visa based on marriage to a U.S. citizen or permanent resident.  The 3-year/10-year bar kicks in once you depart the U.S. to attend your immigrant visa interview at the U.S. Consulate abroad. You would then need to obtain a waiver by showing your absence from the U.S would cause “extreme hardship” to your  U.S. citizen or permanent resident spouse. The waiver can be very difficult to get due to the strict requirements.

You will continue to accrue unlawful presence while your DACA request is pending, unless you are under 18 at the time of the request. If you are under 18 when you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 and the request is still pending. If you receive DACA, you will not accrue unlawful presence during the deferred action period.

Although deferred action does not give you lawful nonimmigrant status or immigrant status in the U.S, it helps protect you from accruing unlawful presence, which carries immigration penalties. Having authorized stay in the U.S. during the deferred action period can be especially beneficial if you were to later qualify for an immigrant visa.

You may travel outside the United States with advance parole

As a DACA recipient, you may apply for advance parole to leave the U.S. and return legally in DACA status. But you must first apply for advance parole by filing a Form I-131, Application for Travel Document.

USCIS will grant advance parole only if your travel abroad is for:

  • humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
  • educational purposes, such as semester-abroad programs and academic research, or;
  • employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Advance parole allows you to leave the U.S. for these purposes, but is not to be used for vacation or for general travel.

You receive social benefits and economic opportunities

In general, DACA recipients have more economic opportunities and are more socially integrated than those who do not qualify for DACA. With authorized stay and work permits, they find it easier to get a new job, open their first bank account and receive their first credit card.

Getting a driver’s license is a key benefit, especially for young immigrants. Currently, otherwise-eligible DACA recipients can apply for a driver’s license in every state except Nebraska.

Some state laws and college systems also allow certain students to pay in-state tuition, regardless of their immigration status.

A Star Tribune article states “For many who did apply, DACA has paid off. A national survey of DACA recipients last year found that almost 60 percent obtained a new job, 45 percent increased their earnings, about half opened their first bank account and 57 percent got a driver’s license.”

Your information, for the most part, will not be shared with enforcement agencies and will not be used against you 

USCIS has stated that it will not share information provided in a DACA request with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal proceedings against you or your family members, unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances.

CONS

Here are a few drawbacks to consider when applying for DACA:

You have no path to permanent residence or citizenship in the U.S.

Past DREAM Act proposals includes a path to permanent residence and citizenship in the U.S. The DREAM Act is a legislation that must be passed by Congress to become law.

Meanwhile, DACA offers only work permits and relief from removal for a temporary period, but no path to lawful immigrant status. It is not new law.

Basically, DACA is a program or policy directing DHS on how to enforce immigration laws. Deferred action existed long before DACA, but DACA provides a formal process for qualified applications to seek this temporary relief. Because it was made available by an Obama Administration policy, it could easily end under a new U.S. President.

You have no lawful immigration status in the U.S. 

As a DACA grantee, you are considered lawfully present in the U.S., but you still have no lawful nonimmigrant or immigrant status.

Lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card) or temporary visa classification, such as H-1B worker, B-1/B-2 visitor, or F-1 student.

Employers and state officials sometimes believe your lack of immigration status means you are unlawfully present. You might be wrongly denied a job, driver’s license, etc. because you have DACA status, instead of lawful immigration status. Although deferred action gives you authorized stay, your lack of immigration status can make it tougher for you to get social benefits and economic opportunities.

You have no right to travel and return to the U.S. based on DACA grant alone

DACA gives you no lawful status that allows you to travel abroad and return to the U.S. Instead, you must first pay the  filing fee for advance parole (travel document) and file the Form I-131 with USCIS. If you depart the U.S. without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Being approved for advance parole does not guarantee that you will be able to return to the U.S. At the port of entry, the Customs and Border Protection (CBP) officer may deny your entry if he finds you are “inadmissible” due to health or security reasons or other factors.

If you leave the U.S. after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure (even with advance parole) could mean you followed through with the deportation or removal.

Your opportunities to integrate socially and economically are temporary

Congressional Republicans seek to defund DACA. House Republicans attached amendments affecting the 2012 deferred action program to the DHS 2015 fiscal year funding bill. While the bill passed the House, it has been blocked by Senate Democrats.

DHS has also halted the rolling out of the expanded DACA on February 18, due to a federal district court order temporarily blocking its implementation. The new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would extend to certain parents of U.S. citizen and lawful permanent residents and was expected to kick off in May 2015, is also on hold.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

While applicants can continue to file and renew requests under the old DACA, the future of this program is uncertain. And the expanded DACA and new DAPA are being challenged even before kick off.

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

Your information may be shared with enforcement agencies and may be used against you in certain situations

USCIS may share the information in your DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

If USCIS denies your DACA request and your case involves a criminal offense, fraud, or a threat to national security or public safety (or exceptional circumstances), USCIS will refer your case to ICE. You may then face the risk of being removed from the U.S.

Persons who have been convicted of certain crimes or apprehended at the border or at ports of entry while trying to unlawfully enter the U.S. are considered to be enforcement priorities. Other enforcement priorities include persons suspected of terrorism, espionage, or abusing the visa or visa waiver programs. To a lesser extent, persons who have been issued a final removal order after January 1, 2014 are also enforcement priorities.

Consult an Experienced Immigration Attorney Before You Apply for DACA

Overall, the benefits and protections you get from applying for DACA outweigh the risks and limitations.

Before you request DACA, you should first consult a reputable attorney or get authorized legal assistance to help you weigh the pros and cons.

Beware of immigration services that are not authorized to offer legal advice. For help on how to avoid and report immigration scams, go to uscis.gov/avoid-scams or uscis.gov/es/eviteestafas

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Môsieur J. [version 9.1]

Federal Judge Issues Injunction; Expanded DACA and New DAPA on Hold for Now

In response to a federal judge’s order temporarily blocking President Obama’s executive action on immigration, the Department of Homeland Security (DHS) has halted plans to roll out the expanded Deferred Action for Childhood Arrivals (DACA) program today. Whether DHS will launch the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015 is also uncertain.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

The White House said  Obama’s actions “are well within his legal authority.” The U.S. Department of Justice plans to appeal and will likely request an emergency stay of Judge Hanen’s decision at the 5th Circuit Court of Appeals in New Orleans.

Money, Money, Money

In his 123-page decision, Judge Hanen ruled that the Obama administration failed to comply with the Administrative Procedures Act because it did not follow the notice-and-comment rulemaking process in implementing the new policies. The judge did not rule on the primary legal claim that the deferred action programs are unconstitutional.

The Texas-led coalition of states in the lawsuit are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

The judge found that Plaintiffs would suffer economic injuries as a result of the deferred action programs and therefore have standing to file the lawsuit.

Texas, in particular, stated that the DHS Directive would create a new class eligible to apply for driver’s licenses, the processing of which would add substantial costs to its budget. The judge noted, “Texas’ undocumented population is approximately 1.6 million, and Plaintiffs’ evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA.” The judge added there would be increased costs associated with processing a wave of new driver’s licenses.

In 2013, an estimated 86.3% of the U.S. workforce commuted to work in private vehicles. This is especially true in the 26 states that filed the lawsuit, as none of them have extensive mass transit systems.  Because federal law requires the issuance of driver’s licenses to deferred action recipients, Judge Hanen found that the states would suffer economic injuries as a result of the new programs.

Plaintiffs also argued that the DHS Directive will create a discriminatory employment environment that encourages employers to hire DAPA beneficiaries instead of lawful residents.  They noted that DAPA beneficiaries are more affordable to hire because it is likely that employers will not be required to provide them with health care or suffer a penalty for not doing so.

“…no effective way of putting the toothpaste back in the tube…”

On page 120 of his order, the judge reasoned, “If the preliminary injunction is denied, Plaintiffs will bear the costs of issuing licenses and other benefits once DAPA beneficiaries  – armed with Social Security cards and employment authorization documents – seek their benefits. He added, “once these services are provided, there will be no effective way of putting the toothpaste back in the tube should Plaintiffs ultimately prevail on the merits.”

Although the deferred action programs will add to social and economic costs, they will also bring additional benefits and revenues. The net effect of socially and economically integrating deferred action recipients into the American community is positive.

DACA and DAPA recipients with work permits will be able to work lawfully as employees, and are likely to increase their tax payments. These programs are expected to generate federal and state income tax revenue.

The programs will also help prevent unscrupulous employers from taking advantage of undocumented workers by paying them low wages and subjecting them to unacceptable working conditions. This should lead to an overall improvement in wages and working conditions for U.S. workers.

In one report, the Immigration Policy Center, American Immigration Council describes the various ways in which executive action on immigration creates a positive impact. It states, “Immigrants – including the unauthorized – create jobs through their purchasing power and entrepreneurship, buying goods and services from U.S. businesses and creating their own businesses, both of which sustain U.S. jobs.” It further states, “The presence of new immigrant workers and consumers in an area spurs the expansion of businesses, which also creates new jobs.”

Judge Hanen’s Ruling Does Not Involve Old DACA

In his February 17 statement, Homeland Security Secretary Jeh Johnson announced:”The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it.”

Johnson added, “Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.”

Under the expanded DACA, more undocumented immigrants or those who fell out of status and arrived in the U.S. as children would qualify for deferred action and receive employment authorization for three years. The new DAPA would extend to undocumented parents of Americans and lawful residents. The implementation of both programs are now on hold.

There is no set timeline for when the Fifth Circuit would issue a ruling on an appeal from the Justice Department. In the meantime, qualified applicants who are interested in applying for deferred action under expanded DACA or new DAPA should continue collecting required documents, in the event that the injunction is lifted.

Judge Hanen’s ruling does not involve the old DACA that was introduced in 2012 by then DHS Secretary Janet Napolitano. Those who qualify for deferred action and work authorization under the old DACA can still apply and re-apply for these benefits.

[UPDATE: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Michael Lynch