Author: Adrianna Romero

In yet another twist in the ongoing saga of the Deferred Action for Childhood Arrivals (DACA) program, a federal judge in Texas has ruled that the Biden administration’s efforts to codify DACA into federal regulation are unlawful. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas made this ruling in response to a lawsuit filed by Republican-led states, echoing his similar decision in 2021 when he declared the original DACA memo established by the Obama administration illegal. However, what sets this ruling apart is that, despite finding the Biden administration’s DACA regulation unlawful, Judge Hanen did not order the immediate termination of the program.

In his latest ruling, Judge Hanen found no “material differences” between the original 2012 DACA policy and the Biden administration’s 2022 effort to transform it into a federal regulation. While he kept DACA closed to new applicants, he allowed current beneficiaries to renew their enrollment, expressing sympathy for their situation. However, he also emphasized that the fate of DACA recipients should ultimately be determined by Congress, not the courts or the executive branch.

The Biden administration is expected to appeal this decision, and the case is likely to eventually reach the Supreme Court. The 5th Circuit Court of Appeals, responsible for reviewing appeals of Judge Hanen’s rulings, also declared DACA illegal last year, further complicating the situation.

DACA has been at the heart of the nation’s contentious immigration debate since its inception 11 years ago. While Congress has considered several bipartisan proposals to provide permanent legal status to DACA recipients and other undocumented immigrants brought to the country as children, these efforts have often become entangled in broader, partisan debates over immigration policy, including issues related to the southern border.

Homeland Security Secretary, Alejandro Mayorkas, disputed Judge Hanen’s ruling, emphasizing that it undermines the security and stability of more than half a million Dreamers who have contributed to their communities. The White House, represented by press secretary Karine Jean-Pierre, pledged to continue defending DACA from legal challenges and called on Congress to provide permanent protection for Dreamers.

For now, current DACA recipients can continue renewing their status, but USCIS will not process new applications. While this offers temporary relief to DACA recipients, it underscores the urgent need for comprehensive immigration reform to provide a more permanent solution for these young immigrants who have spent years in limbo. The coming legal battles and political discussions will undoubtedly shape the fate of DACA and the Dreamers who depend on it.

The Title 42 Covid Ban invoked by the Trump Administration is set to end on May 11, 2023. The controversial policy allowed officials at the southern border to quickly deny asylum seekers due to the ongoing COVID pandemic emergency. Now that the Biden Administration has decided to lift the ban, thousands of applicants are expected at the border in hopes of receiving protection under asylum regulations. In an effort to ease the burden at the southern border, the Biden Administration will be opening Processing Centers in Guatemala and Columbia. The intention is to have applicants present their asylum claims at these centers without having to make the dangerous journey through Latin America and Mexico to get to the US. However, new policies will also permit CBP officers to deny asylum claims at the border if they did not apply for asylum in the countries they passed through or set an appointment with CBP. With the cooperation of the Mexican government, CBP will quickly expel ineligible asylum seekers from several countries, back to Mexico. The Secretary of Homeland Security, Alejandro Mayorkas, called on Congress to provide resources as they prepare for the anticipated surge of asylum applicants and unauthorized entries next month.

Nearly six months after the Taliban seized power of Afghanistan after the withdraw of U.S. troops from the country, DHS announces Temporary Protected Status (TPS) for Afghan nationals. On March 16, 2022, Secretary Mayorkas announced TPS designation for Afghanistan for 18 months. TPS is meant to offer protection to Afghan nationals “who are already living in the United States from returning to unsafe conditions” caused by ongoing armed conflict and extraordinary and temporary conditions.

This designation is also meant to provide added protection to Afghans who have provided aid to U.S. military missions in Afghanistan.  

Additionally, TPS will be available to Afghan nationals who entered the U.S. after the mass exodus from the country and were admitted and paroled into the U.S. for humanitarian reasons. Eligibility will only be available to those who entered the U.S. on or before March 15, 2022. Once approved, applicants will be protected from removal and temporary work authorization. Application instructions will be outlined in the Federal Registrar.

On October 25, 2021, the White House released additional details regarding the COVID-19 vaccine requirements for international travelers.  

U.S. Citizen & Lawful Permanent Resident Travelers

Non-immigrant Travelers

Children

Vaccine Exceptions:

• Children under 18
• COVID-19 clinical trial participants
• Those travel for emergency or humanitarian reasons (with a US government-issued letter affirming the urgent need to travel)
• Those traveling on non-tourist visas from countries with low-vaccine availability (as determined by the CDC)

On September 30, 2021, USCIS issued a memo outlining the Biden administration’s new immigration enforcement policies. The memo makes it clear that ICE agents are to prioritize the detention or deportation of those suspected of terrorism or pose a national threat to the U.S. Undocumented immigrants who have committed serious crimes or are recent arrivals (entered the U.S. after November 1, 2020) are also among the priority list for ICE.

After the policy goes into effect on November 29, 2021, ICE agents will not detain undocumented immigrations merely because of their immigration status. Instead, ICE agents will use their limited resources and discretion to pursue undocumented immigrants who may be a threat to border security, public safety, and national security. Undocumented immigrants who have been in the U.S. for an extended period of time and can show they satisfy any of the enumerated mitigating factors are not a priority for deportation. While this policy may be a sigh of relief for millions of undocumented immigrants living in the U.S., they are still living in limbo while they wait for a path to work authorization, legal status, and citizenship.

H-2B visas are temporary employment-based visas available to non-agricultural employees. H-2B petitions are filed by employers who need seasonal or one-time help because they are unable to find U.S. workers who are able, wiling, or qualified to do temporary work.

Together the Department of Labor and the Department of Homeland Security have authorized the addition of 22,000 H-2B visas to help businesses affected by COVID and will suffer irreparable harm if they cannot hire H-2B workers. 6,000 of those additional visas will be reserved for workers from the Northern Triangle (Honduras, Guatemala, El Salvador).

This is a one-time increase in visa numbers that will expire in September 2021.

As states implement new methods with the intention of making it easier for their residents to vote, they have unintentionally made it more difficult for Lawful Permanent Residents to naturalize and even put them at risk of deportation.

One of the most unforgiving violations of U.S. immigration law is to falsely claim to be a U.S citizen. A false U.S. citizen claim will make a foreign national inadmissible and deportable, and it is nearly impossible to overcome this violation. Upon adjusting their status, Lawful Permanent Residents are carefully advised by attorneys to avoid false claims to U.S. citizenship.

Many states have included the opportunity to register vote with their DMV applications and other state benefit application. While some of these applications ask the applicant to indicate whether they are U.S. citizens, many do not.   

As a result, applicants are unknowingly registering to vote after signing these forms. This presents a complication for Lawful Permanent Residents when they apply to naturalize and USCIS notices they are registered to vote. USCIS had previously determined that a Lawful Permanent Resident who registered to vote, intentionally or otherwise, can be denied U.S. citizenship by alleging that they either falsely claimed to be a U.S. citizen or they do not meet the “good moral character” requirement to warrant an approval.

USCIS recently updated its policy on this topic. USCIS will not penalize those who unknowingly or unlawfully registered to vote, and will not consider an applicant to have unlawfully registered to vote if they did not complete or sign the voter registration portion of a state benefit application. If an applicant did register to vote, USCIS will not consider it a false claim to U.S. citizenship if the registration form did not contain a question about citizenship, and if it did, the applicant did not affirmatively indicate they were a U.S. citizen. However, the burden is on the applicant to prove the question did not exist or that they did not answer in the affirmative. If the applicant answered in the affirmative, they may be denied immigration benefits based on a false claim to citizenship or lack of “good moral character”.

In sum, Lawful Permanent Residents who are unknowingly registered to vote can still be eligible to naturalize, but they need to prove they did not mean to register and they did not affirm they were U.S. citizens.

The new policy is effective immediately and USCIS will accept comments until June 28, 2021.

On February 18, 2021, the U.S. Citizenship Act was formally introduced to Congress. The proposed bill calls for comprehensive reform to all areas of immigration law. President Biden declared on this first day in office that he intended to “restore humanity and American values to our immigration system”. The massive, 353-page bill, proposes innovative solutions to the current and outdated immigration framework that has failed to keep up with the country’s needs.

The bill provides for a pathway to permanent residency and eventually citizenship for those with DACA, TPS or H-2A status.

With the goal of stimulating economic and scientific development, the bill proposes many changes to employment-based immigration including:

• Clearing visa backlogs by increasing per-country caps and exempting Ph.D. graduates working in STEM fields from the green card quota. 
• Prioritizing the distribution of H-1B visas by wage offered by employers.
• Work authorization for H-4 dependants.
• Increasing penalties for employers who violate labor laws.
• Extensions of F-1, H-1B, L-1, and O-1 status if the foreign national has a labor certification or I-140 immigrant visa petition pending for over a year.

While the bill is only in the early stages of the legislative process, it will certainly be subject to debate and revisions in an effort to garner bipartisan support.