Tag Archives: DACA

Trump’s Four Pillars for Immigration Reform

In his State of the Union address on January 30, 2018, after completing his first year in office, President Trump officially introduced his Administration’s four pillars for immigration reform.

The first pillar “offers a path to citizenship for 1.8 million illegal immigrants who were brought [to the United States] by their parents at a young age…”  Commonly known as Dreamers, individuals within this group who meet education and work requirements, and show good moral character, will be eligible for naturalization (U.S. citizenship), according to Trump.

The second pillar aims to enhance border security. It involves building a big wall on the U.S.-Mexico border and hiring more border patrol officers. “Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country — and it finally ends the dangerous practice of ‘catch and release’,” Trump said.

The third pillar ends the Diversity Visa Lottery, which Trump criticized as “a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people.” He further called for a “merit-based immigration system.”

The fourth pillar “protects the nuclear family by ending chain migration” and restricting family-based immigration to only spouses and minor children. Trump claimed that under the current system, “a single immigrant can bring in virtually unlimited numbers of distant relatives.”

Trump deems the Diversity Visa Lottery program and “chain migration” as sources of terrorist attacks and threats to the national security of the United States.

While Trump has said Congress should pass a “bill of love” for young, undocumented immigrants who qualified for the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program, which he rescinded on September 5, 2017, his support does not come without conditions.

Conditioning protections for Dreamers and DACA holders on federal funding for a Southern border wall and  reductions in legal immigration, in particular, makes it harder for a gridlocked Congress to reach a mutually agreeable, workable solution. Congress’ failure on February 15 to secure enough votes to advance any of the four immigration bills up for a vote is a prime example. To learn more, read White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail.

In the meantime, the Trump Administration has relied on presidential proclamations and executive policies to bypass Congress and impose travel restrictions and broaden immigration enforcement priorities. While the termination of prior, executive orders and the introduction of new ones are subject to checks and balances, including review by U.S. federal courts and the U.S. Supreme Court, they still have ripple effects.

Section 212(f) of the Immigration and Nationality Act (INA) gives the President broad authority to suspend entry of a class of foreign nationals temporarily if he or determines the entry of such aliens would be detrimental to the U.S. interest.

Trump’s Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation 9645) – dubbed “Travel Ban 3.0” – indefinitely suspends entry to the United States for nationals of eight countries (Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia).

There are a few exceptions, such as lawful permanent residents, asylees, and diplomatic visa holders from these countries. Consular officers and immigration officials may also grant case-by-case waivers to those who would otherwise be subject to the entry ban, if denial of their admission would cause them undue hardship and their admission would not pose a threat to the national security of public safety of the United States and would be in the national interest.

Federal courts in Hawaii and Maryland issued preliminary injunctions partially blocking Travel Ban 3.0, but they were lifted by the U.S. Supreme Court on December 4, 2017, allowing Trump’s proclamation to go into effect. The U.S. Supreme Court is expected to hear oral argument on April 25 regarding whether the ban violates U.S. immigration law or the U.S. Constitution.

Trump’s termination of the DACA program has spurred federal lawsuits, which resulted in February 13th New York and January 9th San Francisco court orders, issuing temporary injunctions to block the Administration’s rescission. As a result, U.S. Citizenship & Immigration Services (USCIS) — which recently changed its mission statement to remove the term “nation of immigrants” and emphasize “protecting Americans” — continues to accept DACA renewal requests for now.

The Administration’s expansion of immigration enforcement priorities has also made certain, undocumented immigrants increasingly vulnerable at their USCIS interviews. Spouses of U.S. citizens are now more likely to be apprehended by U.S. Immigration & Customs Enforcement (ICE) at in-person interviews with USCIS, when they seek an approval of a marriage-based petition to legalize their status, but have already been issued a removal order, been previously caught unlawfully entering the United States, have criminal convictions, etc.

In light of the Administration’s immigration policies, it has become more critical to have experienced, attentive immigration counsel evaluate your eligibility for immigration benefits (preferably before you file for them) and accompany you to in-person interviews with USCIS. For more information, read 5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS.

Contact Dyan Williams Law to help you evaluate your qualifications for permanent residence or naturalization, overcome visa refusals, apply for waivers of inadmissibility, and represent you at green card or citizenship-related interviews with USCIS.


Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900


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.


White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for 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.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.


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.


Photo by: PIRO4D


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.


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, 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.


Photo by: BBC World Service