The Uncertain State of DACA
If you find yourself confused about what’s happening with the DACA (Deferred Action for Childhood Arrivals) program, you’re not alone. The program has been the subject of judicial whiplash for years, amid threats of its termination, and its future remains uncertain.
The DACA program, which provides protection against removal and deportation for people who arrived in the U.S. as children and who currently lack legal status, was created by executive policy under the Obama Administration. The Trump Administration rescinded the DACA memo after concluding that implementation of the program was inconsistent with the Constitution’s separation of powers. The Supreme Court then heard challenges to the rescission of the DACA program and found that the Trump administration had not properly rescinded the program. DACA survived termination for the time being.
Under the Biden administration, the Department of Homeland Security (DHS) has begun the formal rulemaking process to codify DACA under federal regulation, making it less susceptible to legal challenges. At the same time, the program remains involved in litigation to determine whether its implementation is consistent with immigration law. Currently, the program is before U.S. District Judge Andrew Hanen of Texas, to whom the Fifth Circuit Court of Appeals remanded the decision to consider the impact of the Biden Administrations DACA regulations on the program’s legality.
While the program is entrenched in litigation, DHS’s U.S. Citizenship and Immigration Services will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to an injunction from the ongoing litigation, however, USCIS will accept but cannot process initial DACA requests. DACA recipients remain eligible for Advanced Parole travel authorization in limited circumstances.
Do you have questions about the DACA program? Reach out to schedule a consultation with one of our attorneys today!
New Refugee/Parole Program for Children in Guatemala, Honduras & El Salvador
The Department of State announced a new program to help children located in Guatemala, Honduras, and El Salvador reunite with their parents who are lawfully present in the United States. This in-country refugee/parole program is designed to discourage children who are located in Central America from making the perilous journey to the United States unaccompanied. As such, parents lawfully present in the United States will be allowed to submit an application requesting that their children be allowed into the United States as refugees or via parole. Only parents with lawful immigration status may submit an application.
First DACA Recipients Eligible for Renewal
This summer will mark two years since the Deferred Action for Childhood Arrivals program first began. The first DACA recipients now have the opportunity to apply for a renewal of deferred action. Immigration and Customs Enforcement (ICE) has released a notice regarding the renewal process specifically for applicants who applied between June 15, 2012 and August 15, 2012.
Renewal applications for another two-year period of deferred action must include Forms I-821D and I-765, along with the filing fee for the I-765 Employment Authorization Document. The original requirements for eligibility are still in place and renewal of deferred action remains at the discretion of USCIS.
It is important to note that if an applicant’s period of deferred action expires before they receive a renewal of deferred action, they will begin to accrue unlawful presence. They will not be eligible to work during any lapse in deferred action. In order to avoid a lapse, the government recommends applying for a renewal 120 days before the current expiration of deferred action.
Individuals who applied on or after August 15, 2012 must wait for USCIS to issue a notice regarding the renewal process for their group. Such guidance is anticipated in the coming months.
The New Reforms: What You Need to Know
Originally published in the May 20, 2013 edition of Law Week Colorado.
By Maya Wilbourn
The Senate “Gang of Eight’s” bipartisan comprehensive immigration bill, SB 744, makes great strides in fixing our current broken immigration system, which tears families apart, hurts businesses and deters the best and the brightest from staying in America. It also shows the price of compromise and the give and take that almost always accompanies a comprehensive solution to a complex problem.
Undocumented can finally get in line
The bill allows undocumented immigrants who entered the U.S. before December 31, 2011 to apply to become registered provisional immigrants, or RPIs, after paying fines and back taxes. These immigrants would receive authorization to work in the U.S. and travel abroad. According to the bill, RPIs must wait 10 years and the Department of State must certify that the current immigrant visa backlogs have cleared before they could apply to become lawful permanent residents. After three years as legal permanent residents, they could apply to become naturalized citizens.
DREAMers, or those individuals who entered the U.S. before age 16, could apply to become lawful permanent residents after holding registered provisional immigrant status for five years, passing a background check, earning a high school diploma and pursuing higher education or military service. DREAMers who become legal permanent residents would be eligible to apply to become naturalized citizens immediately.
New family member restrictions
The bill would speed up the processing of immigrant visas for spouses and children of lawful permanent residents by reclassifying them as “immediate relatives.” The existing system keeps these families apart for two or more years. The bill would also allow immediate relatives to bring derivative family members and would bring back the V visa to allow certain family members to stay together while waiting for the processing of immigrant visas.
On the other hand, the bill also contains provisions restricting family-based categories including the elimination of the fourth preference category for brothers and sisters of adult U.S. citizens. It also limits U.S. citizens from sponsoring their married sons and daughters over age 31.
Merit-based system replaces lottery
The bill replaces the diversity visa lottery, which awards immigrant visas to individuals from countries with low rates of immigration to the U.S., with a new two-track merit-based system for permanent residency. The first track awards points to applicants for factors such as education, length of employment, type of employment, family members in the U.S. and length of residence. The second track establishes a process to eliminate the backlog of pending family-based and employment-based immigrant visas and also provides a way for people in registered provisional status to eventually become lawful permanent residents.
Employment-based system changes
The bill creates a new temporary W visa for less-skilled workers in order to stem the future flow of undocumented immigration, an important piece that was not included the last time comprehensive immigration reform was passed in 1986. The program starts with a 20,000 annual cap that can rise up to 200,000, depending on a formula and recommendations of a new federal bureau. Although the cap may not be sufficient in early years, it is the product of compromise between industry and labor unions. The bill also provides some relief to the agriculture industry by creating a new temporary agricultural worker program to replace the antiquated H-2A program and allowing certain undocumented agricultural workers to stay in the U.S. with a new “blue card.”
For H-1B professional workers, the bill increases the annual cap to a floor of 110,000 and a ceiling of 180,000, allows spouses to work and gives terminated employees a grace period. At the same time, the bill imposes new recruitment and wage requirements that are unnecessary and will result in immigrants being paid more than their U.S. citizen coworkers. There is also a restriction against the outplacement of workers, which ignores the way our economy works in many sectors.
A long needed measure for entrepreneurs is included in the bill, which creates a temporary X visa and a new category for permanent residency for immigrants investing in businesses, creating jobs and generating revenue.
The bill exempts the following permanent residency categories from annual numerical limits: employment-based first preference immigrants, doctoral degree holders, physicians who completed foreign residency requirements and employment-based derivative family members.
Additionally, the bill requires all employers to use E-Verify within five years and increases the penalties for employer noncompliance.
The time is now
As is often the case with political compromise, the Senate bill does not solve everything. But it provides a path for the undocumented, increases immigrant visa numbers, eliminates the backlog, creates more employment visa categories and allows young DREAMers to go to college. The public overwhelmingly supports immigration reform and lawmakers from both sides should keep the momentum going to pass a good bipartisan bill in 2013.
-Maya Wilbourn is a senior associate attorney with Stern & Curray. She can be reached at 303-407-4100.
USCIS Releases Updated DACA Statistics
On July 15, 2012, the Department of Homeland Security announced a new deferred action program for certain individuals who came to the United States as children and who meet educational, continuous presence, and other key requirements. Under this program, known as the Deferred Action for Childhood Arrivals (DACA) program, eligible individuals may request deferred action and work authorization for a period of two years, which is subject to renewal. At this time, the program does not provide applicants with legal status, it simply places them in a period of authorized stay during which any removal action is deferred.
On February 15, 2013, United States Citizenship and Immigration Service issued updated statistical data on DACA cases processedbetween August 15, 2012 and February 14, 2013. The data indicates that a total of 423,634 DACA applications have been accepted for processing, and that 199,460 applications have been approved to date. The data also ranks DACA applicants in terms of their country of origin and state of residence; the top three countries of origin among DACA applicants are Mexico, El Salvador, and Honduras, and the top three states of residences are California, Texas, and New York.
Comprehensive immigration reform may provide avenues to legal permanent residence for DACA beneficiaries in the near future. Please check our blog regularly for the latest updates on immigration reform.
Number of Deferred Action Applications Lower than Anticipated
It’s been little over a month since USCIS began accepting applications for the new Deferred Action for Childhood Arrivals program. The program, which provides protection from deportation along with work authorization in two year increments, applies only to so-called “childhood arrivals” or “Dreamers,” those immigrants who came to the U.S. as children and who either fell out of legal status or never had it to begin with. An August report from the Migration Policy Institute estimates that the number of eligible applicants is near 1.76 million. However, as of September 14th, only 82,361 applications had been received, and of that number only 29 applications had been approved (AILA InfoNet). Stern & Curray represents many Dreamers applying for deferred action status.