SUPREME COURT NOT LIKELY TO REVIEW DACA THIS TERM
On January 22, 2019, the Washington Post and Politico reported that the Supreme Court is unlikely to review the U.S. Court of Appeals for the 9th Circuit’s decision on Deferred Action for Childhood Arrivals (DACA) this term. The 9th Circuit blocked the Trump administration from ending DACA, and SCOTUS’ decision not to intervene this term preserves the status quo. This means the Trump administration is required to continue accepting renewals, but not new applications to the DACA program.
The Trump administration moved to end the Obama-era program in 2017, but the 9th Circuit rejected the administration’s theory that DACA was unlawful and kept the program in place. Those individuals who have been approved for the program are protected from deportation and allowed work permits so long as they follow its regulations and do not violate laws.
Notably, the 9th Circuit opinion did not rule that DACA could not be rescinded as an exercise of executive power, but only that the decision to end DACA was based on an erroneous view of what the law required.
Based on the high Court’s normal procedures, even if it accepts the case at a later date, it would not be argued until the new term starts in October, with a decision likely in 2020
New Dream Act of 2017 Introduced in the Senate and the House
On July 20, 2017, Senators Lindsay Graham (R-SC) and Dick Durban (D-IL) introduced a bipartisan bill entitled the Dream Act of 2017. On July 26, 2017, Representatives Ileana Ros-Lehtinen and Lucille Roybal-Allard introduced the House version to the House of Representatives.
This Dream Act is not the first immigration reform attempt relating to DREAMers. Versions have been introduced over the past years but have never passed.
The Dream Act of 2017 would allow young people brought to the U.S. as children to apply for lawful permanent residence, if they meet certain requirements. Some of the qualifications include:
- Long-term residency in the U.S. since childhood
- Graduation from high school or receipt of a GED
- Pursuance of higher education, lawful employment for at least 3 years, or service in the military
- Passing background checks
- Demonstrated proficiency in English and a knowledge of U.S. history
- No convictions for felonies or other serious crimes
If passed, it would likely provide a pathway to citizenship for many of the 600,000 young people who are currently registered under DACA, or Deferred Action for Childhood Arrivals.
The one-page description of the proposed Senate Bill can be found here. A section by section outline can be found here.
Court of Appeals Denies Obama’s DAPA and Expanded DACA Programs
In a divided decision the Fifth Circuit Court of Appeals upheld the injunction stopping President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Expanded DACA programs from being implemented. These programs, which were first introduced by the President approximately a year ago, would have granted temporary relief from removal to as many as 5 million non-citizens present in the United States without permission. This ruling upholding the injunction means that these programs permanently will not be implemented unless the Obama Administration requests that the United States Supreme Court hear the arguments in this case. As of today, the Obama Administration has not confirmed whether or not they plan to appeal this decision.
Appeals Court Denies Stay in Exective Action Lawsuit
President Obama’s latest executive actions on immigration will remain on hold after a federal appeals court refused to lift an injunction on the two executive orders.
The first order would have implemented Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The plan would allow parents of US citizens and lawful permanent residents to request deferred action and apply for work authorization for three years provided they have resided in the US continuously for the past five years and pass a background check. The second order would have expanded Deferred Action for Childhood Arrivals (DACA) to include childhood arrivals who were 31 years of age or older when DACA was initially announced, as well as extending the period of work authorization under DACA from two years to three years. DAPA was scheduled to take effect in February, while the DACA expansion was scheduled to take effect this month. Combined, the plans would affect an estimated 4.7 million undocumented immigrants.
Twenty six states filed suit challenging the executive orders as an unconstitutional overreach of presidential power, and a US district judge issued the injunction in February when he sided with the states in the suit. The injunction is now likely to remain in place for the duration of the federal government’s appeal. The court ruling does not affect the existing DACA program, which will continue to accept requests and issue deferred action and work authorization.
New DACA Applications will be Accepted Starting February 18th!
Great news for those who will be applying for the new expanded Deferred Action for Childhood Arrivals (DACA) program! Applications for a three-year deferral of deportation and a three-year work permit will be accepted starting on February 18, 2015.
To be eligible for the new DACA program you must the following criteria:
- Have entered the United States before the age of 16;
- Have lived in the United States continuously since at least January 1, 2010 (rather than the prior requirement of June 15, 2007);
- Are currently in school, have graduated from high school or obtained a GED, or have been honorably discharged from the U.S. military; and
- Have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses.
You can schedule a consultation to start your DACA application today by calling our office at 303.407.4100.
For parents of U.S. citizens and lawful permanent residents, an application for deferred action will be available in mid-to-late May 2015. We will send an email when we learn the official application date.
If you know family or friends who may benefit from the President’s plan, please share our information with them. The attorneys at Stern & Curray will continue to update our blog and our Facebook page with any changes.
Highlights from President Obama’s Executive Action Immigration Reform
Last night President Obama implemented sweeping immigration reform. The President’s reforms will impact many areas of immigration, such as immigration courts and deportations, border security, Deferred Action for Childhood Arrivals applicants, parents of U.S. citizens or lawful permanent residents, foreign students studying in the U.S., spouses of H-1B visa holders, and U.S. businesses, foreign investors, entrepreneurs, researchers, and highly skilled workers.
As noted on the USCIS website, highlights of President Obama’s Immigration reform plan include, but are not limited to, the following:
- Broadening eligibility for the Deferred Action for Childhood Arrivals (DACA) program to people who came to this country before turning 16 years-old and who have been present since January 1, 2010. Also, extending the period of DACA and work authorization to three years;
- Enabling parents of U.S. citizens and lawful permanent residents who have been in the United States since January 1, 2010, to apply for deferred action and employment authorization for three years, so long as they pass a background check;
- Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
- Modernizing and improving immigrant and nonimmigrant programs to grow the economy and create jobs. Reform in this area may involve changes to the visa bulletin system, National Interest Waivers, and expansion of OPT for foreign students; and
- Providing work authorization to spouses of H-1B visa holders.
The details of these reforms are currently being formulated by U.S. government agencies. At present, most details and specifics of the President’s reforms are unknown and will be unveiled in the coming months.
Anyone who believes they may benefit from these reforms, please contact our office to set up a consultation.
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.
Advocates Increase Efforts to Reach DACA Eligible Immigrants
The face of undocumented immigrants in the U.S. is typically portrayed as Latin American, and more often than not, is also assumed to be Mexican. As most undocumented immigrants living in the U.S. do hail from Central and Latin America, deferred action advocacy and grassroots organizing has been focused around these populations. Yet, outreach to other immigrant communities, such as the Chinese and Filipinos, has been lacking. Groups like Atlas: DIY are trying to change this by conducting neighborhood outreach in immigrant neighborhoods in Brooklyn. Some advocates contend that there is less discussion of undocumented status within Asian communities, which may decrease the likelihood that qualified individuals will seek out deferred action. The New York City Council is investing millions in a push to help bring out these individuals. How advocates across the nation will reach their respective lesser-known immigrant communities remains to be seen.
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.