Category Archives: immigration reform

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

On day five of his Administration, January 25, 2017, President Donald Trump issued his second executive order on immigration, titled, Enhancing Public Safety in the Interior of the United States. It focuses on the removal of persons who illegally enter the U.S. and persons who overstay or otherwise violate the terms of their visas.

Here is a description of Trump’s executive order on enhancing public safety within the United States, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to employ all lawful means to enforce federal immigration laws and ensure the removal of persons who have no right to be in the United States.

Policy Highlights: 

1. Faithful Execution of Immigration Laws Against All Removable Persons. The executive order notes, “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.  This is particularly so for aliens who engage in criminal conduct in the United States.”

2. Enforcement Priorities. The executive order instructs the Secretary of Homeland Security to prioritize for removal all persons described in the Immigration & Nationality Act as inadmissible under sections 212(a)(2) (Criminal and related Grounds), 212(a)(3) (Security and related grounds), 212 (a)(6)(C) (Willful misrepresentation to gain immigration benefit) and 235 (Expedited Removal of inadmissible arriving alien), or removable under sections 237(a)(2) (Criminal offenses) and (4)(Security and related grounds).

The order also prioritizes removable persons who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

3. Civil Fines and Penalties. The executive order instructs the Secretary to issue guidance and promulgate regulations, where required by law, to assess and collect fines and penalties, as  authorized, from persons unlawfully present in the U.S. and from those who facilitate their presence in the U.S.

4. Additional Enforcement and Removal Officers. The executive order instructs the Secretary, through the Director of U.S. Immigration & Customs Enforcement, and to the extent permitted by law and subject to availability of funds, to hire 10,000 additional immigration officers to perform law enforcement functions.

5. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

6. Terminate the Priority Enforcement Program (PEP) outlined in the November 20, 2014 Memorandum and reinstate the Secure Communities program. The executive order instructs the Secretary to take all appropriate action to end the PEP program, which prioritizes removable persons who have been convicted of an offense listed under the DHS civil immigration enforcement priorities, has intentionally participated in an organized criminal gang to further the illegal activity of the gang, or poses a danger to national security. Trump’s order calls for the revival of the Secure Communities program, which was discontinued by then-Secretary Jeh Johnson in November 2014.

7. Refusal of Federal Grants to “Sanctuary Jurisdictions.” The executive order states that it is the executive branch’s policy to ensure that a State shall comply with 8 U.S.C. 1373 (Communication between government agencies and the Immigration and Naturalization Service).

Trump’s order adds that the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure jurisdictions that refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  It further notes, “The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The order also instructs the Secretary to publish a weekly list of all the crimes committed by immigrants and the jurisdictions that did not honor detainers with respect to such immigrants.

8.  Create an “Office for Victims of Crimes Committed by Removable Aliens.” The executive order calls for the establishment of an office, within the U.S. Immigration & Customs Enforcement, to provide “professional services to victims of crimes committed by removable aliens and the family members of such victims.”  The order also instructs the office to “provide quarterly reports  studying the effects of the victimization by criminal aliens present in the United States.”

Effects and Impact:

1. Broadening enforcement priorities

The executive order significantly broadens immigration enforcement priorities. It eliminates guidance in the November 20, 2014 memorandum issued by then-Secretary Jeh Johnson under the Obama Administration.

In that memorandum, Johnson noted that Priority 1 for immigration enforcement included aliens engaged in or suspected of terrorism or espionage; aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; aliens convicted of an offense for which an element was active participation in a criminal street gang; aliens convicted of a felony as defined by state statute; and aliens convicted of an “aggravated felony” as defined by federal law. Priority 2 included aliens convicted of three or more misdemeanor offenses, aliens convicted of a “significant misdemeanor” (i.e. domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence); aliens apprehended in the United States after unlawfully entering or re-entering the United States and who cannot prove they have been physically present in the United States continuously since January 1, 2014 ; and aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

In contrast, Trump’s executive order prioritizes persons who have been convicted of any criminal offense, which may include even minor infractions and misdemeanors. It also prioritizes any removable person who has been charged with (but not actually convicted of) a crime, or abused any program related to receipt of public benefits. It further encourages the removal of any person who an immigration officer deems is a danger to the “public safety or national security,” thus giving wide discretionary power to individual officers.

New guidance has yet to be issued to local immigration officers on how to implement the executive order. Some ICE Field Officers have stopped granting requests for prosecutorial discretion (PD), as described in the November 20, 2014 memorandum, in light of Trump’s order unless further guidance permits this relief. Others continue to grant PD based on prior directive under the Obama Administration, unless new instructions are provided.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. Prioritizing removable persons who do not pose a threat to public safety will make it harder to focus on those who do.

2. Reinstating the 287(g) partnerships and Secure Communities program

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added section 287(g) to the Immigration & Nationality Act, permitting the delegation of immigration officer duties to deputized state officers and employees. The 287(g) program was credited by ICE for identifying more than 402,079 potentially removable aliens – mostly at local jails – from January 2006 through September 30, 2015.   In a December 20, 2012 news release, however, ICE announced it would phase out the 287(g) program in favor of other, more efficient enforcement programs, such as Secure Communities.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program because it “attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation…” In its place, Johnson introduced the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to reinstate 287(g) partnerships and the Secure Communities program, which were criticized for fueling community mistrust in the police, being prone to racial profiling, increasing the use of immigration detainers to the detriment of the criminal justice system, and creating confusion over the roles of local, state, and federal agents.

3. Penalizing “sanctuary” cities, counties or states

The executive order threatens to withhold federal grants to jurisdictions (cities, counties, and states) that do not comply with 8 U.S.C. 1373. The order does not specifically define “sanctuary jurisdiction,” but the term generally refers to those that decline federal requests to hold arrestees in jail due to their immigration status or to collect immigration status from suspects.

Since Trump’s election, “sanctuary” 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 or immigration consequences.

Whether federal funds may be withheld for the purpose of forcing “sanctuary jurisdictions” to support immigration enforcement is subject to legal challenges. Detaining individuals after a scheduled release date, to assist with federal immigration enforcement, may violate immigration and Constitutional law.

Furthermore, 8 U.S.C. 1373 merely requires communication between government agencies and the immigration agencies. It addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials.

Subsection (a) states federal, state and local government entities and officials may not “prohibit, or in any way restrict” government officials or entities from sending to, or receiving from, federal immigration officers information concerning an individual’s citizenship or immigration status.

Subsection (b) provides that no person or agency may “prohibit, or in any way restrict,” a federal, state, or local government entity from (1) sending to, or requesting or receiving from, federal immigration officers information regarding an individual’s immigration status, (2) maintaining such information, or (3) exchanging such information with any other federal, state, or local government entity.

Section 1373 prohibits government entities and officials from prohibiting or restricting intergovernmental exchange of such information. But it does not impose an affirmative duty on states and localities to collect information from individuals regarding their immigration status, nor does it require states and localities to take specific actions upon obtaining such information.


Expanding immigration enforcement priorities, reviving the 287(g) and Secure Communities programs, and threatening to penalize “sanctuary jurisdictions” are in line with Trump’s campaign positions.  Nevertheless, they are costly and likely ineffective strategies for protecting the American public from dangerous “aliens who engage in criminal conduct.”

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

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: Neon Tommy

Changes to the Visa Bulletin: Understanding the Two Filing Charts


On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).  The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.

Advantages with the New System

The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.

Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.

In most cases, the DFAs are later than the AFADs. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.

In most cases, the new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence.

Even if the priority date is not current in the AFAD chart, an Immigrant Visa applicant may use the DFA chart to submit required forms and documents following receipt of instructions from the NVC.

If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. I-485 applicants may also file for and receive an employment authorization document (EAD) and advance parole (travel document).

Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.

Limitations of the New System

Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.

All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.

USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.

When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.

Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.

Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon.

If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.

The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.

If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.

A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.

The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens 

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.

When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.

When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.

If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.

Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:

  • Spouses of U.S. citizens
  • Unmarried, minor children (under age 21) of U.S. citizens
  • Parents of adult U.S. citizens (age 21 or older)
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death

When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current

You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.

Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.

While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.


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: Xiaojun Deng

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? 


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.


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 or

[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]

5 myths about Obama’s executive actions on immigration

Critics argue President Obama’s executive actions on immigration are an abuse of power. On December 4, the Republican-led House passed a bill aiming to block Obama’s executive actions. To date, 24 states have joined the Texas-led coalition to legally challenge Obama’s immigration actions in court.

Here are 5 myths about Obama’s executive actions on immigration and the facts behind them:

Myth #1: Obama granted amnesty (including lawful status) to millions of undocumented immigrants

Facts: Amnesty is an automatic pardon or free pass granted to a group of individuals. Immigration amnesty is a government’s pardon of undocumented immigrants for violating immigration laws and policies.

In 1986, Congress passed — and Republican President Ronald Reagan signed into law — an immigration reform bill that granted “amnesty” to a large group of illegal immigrants (about 3 million).  The law allowed certain undocumented immigrants, who had entered the U.S. before January 1, 1982, and had resided in the U.S. continuously, to apply for permanent residence and gain a path to citizenship. It also legalized certain seasonal agricultural illegal immigrants.

Obama’s executive actions, on the other hand, do not grant permanent residence or a path to citizenship to millions of undocumented immigrants. It does not provide lawful status. It grants only temporary relief from the threat of deportation and temporary work permits to those who qualify for Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parent Accountability (DAPA).

The expanded DACA program and new DAPA program are expected to kick in on February 18, 2015 and May 19, 2015, respectively.

Not all applicants who qualify for DACA or DAPA will seek this temporary relief. According to the Migration Policy Institute, only a little over half of the young immigrants who qualified for DACA, when it was first rolled out, applied for it.

Those who are not in removal proceedings take a risk when they apply for this relief: they have to notify U.S. Citizenship and Immigration Services (USCIS) that they are in the country illegally. And there is no guarantee their request will be granted.

DACA and DAPA also do not provide long-term protection from deportation. A new president could extend the programs – or not.

If there is no extension, a large number of undocumented immigrants who came out of the shadows could be removable once again. So they need to weigh the risks and benefits, preferably with an experienced immigration attorney, before applying for DACA or DAPA. These programs do not give blanket amnesty.

Myth #2: Obama changed immigration law without Congress’ approval

Facts: Obama did not strike down or repeal existing immigration laws, which only Congress can do. Rather, he directed USCIS, Immigration & Customs Enforcement (ICE), and Customs and Border Protection (CBP) to focus on deporting felons, not families.

U.S. presidents have executive authority to decide how best to enforce the law and use limited resources. It’s called discretion.

Every president since President Dwight Eisenhower (1953-1961) has taken executive action on immigration. Executive actions can include statements of policy by the president (including setting policies on how laws will be enforced) and interpretations of regulations.

Deferred action is the use of prosecutorial discretion to defer removal action against a person for a certain period of time. This existed prior to Obama’s immigration actions. Work permits have been given to those who were granted deferred action long before Obama took office. The DACA and DAPA programs simply formalize the deferred action process for specific groups.

Myth #3:  Obama’s executive actions encourage a new wave of illegal immigration and make the border less secure

Facts:  The expanded DACA and new DAPA programs are limited to qualified applicants. For one thing, they will need to prove that they have been continuously present in the U.S. since before January 1, 2010.

The November 20 policy directs immigration agencies to focus more on deporting the following categories of unauthorized immigrants: those who pose a threat to national security, border security and public safety; those with three or more misdemeanors; those who recently crossed the border illegally; and those “who have been issued a final order of removal on or after January 1, 2014.”

Most of the resources will be spent on removing those on the high priority list. But this doesn’t necessarily mean fewer people will be deported.

Personnel from the U.S. Coast Guard, USCIS, ICE and CBP will realign to form new task forces for enforcement, while maintaining the “the surge of resources” sent to the U.S.-Mexico border during the unaccompanied minors crisis over the summer. Strengthening the border is a key part of Obama’s executive actions.

Myth #4: Obama’s executive actions hurt the U.S. economy and add costs to U.S. taxpayers

Facts: Current federal law holds that all taxpayers who are deemed “lawfully present” in the U.S. may collect Social Security and Medicare, after they have worked for at least 10 years. They may also receive survivors and disability benefits when they become eligible.

Many undocumented immigrants already file tax returns and pay taxes, regardless of whether they are authorized to work. Some own businesses (usually restaurants, bakeries, convenience stores, and construction  companies) and pay business taxes. They contribute to the U.S. economy despite their unlawful status.

The DACA and DAPA programs offer three-year work permits, subject to renewal. Deferred action recipients will receive the same benefits as other taxpayers. But allowing undocumented immigrants to work legally would likely increase tax revenue in payroll taxes.

Executive action beneficiaries will not qualify for other federal benefits such as welfare, food stamps, student financial aid, housing subsidies, Medicaid or benefits under the Affordable Care Act.

The November 20 policy also directs USCIS to promote greater use of the “national interest waiver” for the benefit of the U.S. economy.  The national interest waiver allows non-citizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship if their admission is in the national interest.

Immigration agencies are also directed to use “public interest parole” to attract and retain inventors, researchers, and founders of start-up companies “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.” This could create new jobs for American workers.

Myth #5: Obama’s executive actions derail Congress’ plan to pass immigration reform

Facts:  Obama’s executive actions do not prevent legislative action on immigration reform. “I want to work with both parties to pass a more permanent legislative solution,” Obama said in his address on November 20. “And the day I sign that bill into law, the actions I take will no longer be necessary.”

The bipartisan, comprehensive immigration reform bill passed by the Senate in June 2013 has  not been taken up by the House to date. Obama says he was compelled to take executive actions because Congress failed to pass a  bill.

Before Obama announced his executive actions, House Speaker John Boehner said in a November 6 news conference that even if Obama agreed not to take any executive action, he couldn’t promise a House floor vote on immigration reform.

While defending his executive actions as necessary and legal, Obama urged Congress to pass a bill in an appearance before 60 activists in Nashville on Tuesday.

Meanwhile, House leaders unveiled a $1.1 trillion spending bill that would fund nearly all the federal government through September 2015. But the bill would fund immigration agencies that carry out Obama’s executive actions only through February 27.

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This article provides general information only. 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.


5 ways Obama’s executive actions benefit immigrants

President Obama announced, on November 20, executive actions aiming to grant temporary stay to millions of undocumented immigrants, prioritize the deportation of felons, streamline the employment-based immigrant visa system, expand the provisional waiver program, and promote naturalization.

In response, congressional Republicans have threatened to shut down the government, impeach Obama, sue the president, and not pass any immigration reform through Congress. Meanwhile, some immigrant rights groups say Obama’s executive actions don’t go far enough.

The most contentious executive action is the grant of temporary relief from deportation to certain undocumented immigrants.

Amid the political hoopla, many who are in the U.S. unlawfully or without immigrant status — and would like to stay long-term — are wondering, how do the executive actions affect me? 

Here are 5 ways Obama’s executive actions are expected to benefit immigrants: 

1) Grant deferred action to more undocumented immigrant children by expanding DACA 

Deferred action grants a temporary stay in the U.S. without the threat of deportation. But it does not create a path to lawful permanent residence or citizenship in the U.S.

Obama is expanding the Deferred Action for Childhood Arrivals (DACA) program (which was first introduced on June 15, 2012) to cover a broader class of children.

First,  DACA will cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981, provided they meet the other guidelines.  DACA will no longer be limited to those under the age of 31 as of June 15, 2012.

Second, DACA will cover those who have continuous presence in the U.S. since before January 1, 2010, instead of the earlier date of June 15, 2007.

Third, DACA grants and renewals, including the work permits that come with DACA, will be valid for three years instead of two years.

The expanded DACA program is expected to begin 90 days from the November 20 announcement (i.e. February 18, 2015).  Those who have been convicted of a felony or major misdemeanor crime (including burglary, DUI, domestic violence, or drug distribution) still do not qualify.

2) Grant deferred action to undocumented immigrant parents of U.S. citizens and lawful permanent residents

Obama is creating a new deferral program – Deferred Action for Parent Accountability (DAPA) – for undocumented immigrant parents who have a U.S. citizen or lawful permanent resident son or daughter on the date of the November 20 announcement.

To qualify, the parents must also (i) not be enforcement priorities for removal from the U.S., (ii) have continuous presence in the U.S. since before January 1, 2010, and (iii) present no other factors that would make a grant of deferred action inappropriate.

USCIS will consider DAPA requests on a case-by-case basis, and applicants may apply for work authorization provided they pay the filing fee. DAPA grants and renewals, including the work permits that come with DAPA, will be valid for three years.

The new DAPA program is expected to begin 180 days from the November 20 announcement (i.e. May 19, 2015).

Each applicant must pass a background check of all relevant national security and criminal databases, including DHS and FBI databases, that would show they have not been convicted of a felony or certain misdemeanors.

3)  Streamline the immigrant and nonimmigrant visa application process to support high-skilled businesses and workers

In a November 20 memorandum titled Policies Supporting U.S. High-Skilled Businesses and Workers, the Secretary of the Department of Homeland Security called for new regulations and administrative steps to:

(i) Modernize the employment-based immigrant visa system (and make it easier for U.S. businesses to hire and retain highly-skilled foreign-born workers).

(ii) Reform “Optional Practical Training” for foreign students and graduates from U.S. universities (and make it easier for those on student visas studying science, technology, engineering and mathematics (STEM) to remain after graduation for training and work opportunities).

(iii) Promote research and development in the U.S. (and make it easier for foreign investors, researchers and founders of start-up enterprises to conduct research and development and create jobs in the U.S.).

(iv) Bring greater consistency to the L-1B “intracompany transferee” visa program (and make it easier for companies to manage their global workforce).

(v) Clarify guidelines for worker portability (and make it easier for adjustment of status applicants to accept promotions and change jobs without affecting their employment-based green card process).

4) Expand the Form I-601A, provisional waiver program 

The provisional waiver program for the 3/10 year unlawful presence bar, which USCIS introduced in 2013, will expand to spouses and children of lawful permanent residents, as well as adult children of U.S. citizens. It will no longer be just for U.S. citizens’ spouses, parents, and children (unmarried and under 21).

To obtain the waiver, applicants must still prove their absence from the U.S. will create “extreme hardships” for their U.S. citizen or lawful permanent resident spouse or parent (qualifying relative).

DHA plans to further clarify the “extreme hardship” standard that must be met to obtain the waiver. New guidelines and regulations will need to be issued for this to go into effect.

5) Promote the naturalization process

Lawful permanent residents who wish to naturalize will see some improvements in 2015. USCIS is expected to:

(i) Promote citizenship education and public awareness for lawful permanent resident;

(ii) Allow naturalization applicants to use credit cards to pay the application fee; and,

(iii) Assess potential for partial fee waivers.

A November 20 memorandum, titled Policies to Promote and Increase Access to U.S. Citizenship, states there are more than 8 million lawful permanent residents who are eligible, but who have not applied to become U.S. citizens. While the executive actions are meant to promote citizenship, they do not lower the eligibility requirements to become a U.S. citizen.

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To subscribe for email updates from USCIS on these executive actions, go to the Executive Actions on Immigration page on USCIS’ website.

This article provides general information only. 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.