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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Notably, the 9th Circuit opinion did not rule that DACA could not be rescinded as an exercise of executive power, but only that the decision to end DACA was based on an erroneous view of what the law required.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

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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.

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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.
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Will Undocumented Immigrants Finally Obtain Relief?

In the aftermath of the 2012 presidential election, the possibility of comprehensive immigration reform has been resurrected. It is important to analyze the current movement to reform our immigration system in an historical context. Important questions include: Why did the last amnesty in the 1980s not resolve this problem? How have the government and the business community contributed to the growth of illegal immigration? What other efforts have been undertaken by the Obama administration to address the situation of undocumented individuals in the absence of comprehensive reform?

The Immigration Reform and Control Act (IRCA), which became law on November 6, 1986, had three major components: legalizing undocumented workers, creating employer sanctions, and enforcing protections against citizenship-based discrimination. In addition to IRCA-based sanctions, the legacy Immigration & Naturalization Service routinely conducted work-site raids and the Social Security Administration started sending “No-Match” letters to employers if they could not verify an employee’s social security number. Over time, however, employer sanctions enforcement and work-site raids dwindled to the point of becoming almost nonexistent. This change in strategy resulted, largely, from continuing protests from one segment of our society.

Interestingly, this “hue and cry” did not come from immigrant rights groups or the ACLU; it came from the U.S. Chamber of Commerce and other employer groups. The 1990s was a time of prosperity in the U.S. and the need for semi-skilled and unskilled workers greatly expanded. In past times, this need was filled by new waves of immigrants. Unfortunately, IRCA did not create a mechanism to expand immigration in the face of economic need and many of these jobs were filled by undocumented workers. Consequently, companies complained that stricter enforcement measures were creating hardships for many businesses.

For many years, an unspoken truce existed whereby the federal government did not aggressively enforce employer sanctions or conduct work-site raids, while at the same time no initiatives were created to grant lawful status to the millions of undocumented workers employed in the United States. This truce ended about the time of the 2006 Congressional elections which elevated illegal immigration to a major political issue along with the highly-publicized SWIFT work-site raids. These events are sometimes referred to as the “Bunker Hill” of a new war against undocumented workers.

With the election of President Obama, immigration reform activists hoped for the introduction and passage of comprehensive immigration reform, including a path to legal status for undocumented immigrants. During President Obama’s first term, however, comprehensive immigration reform was a non-starter. Behind the scenes, though, the administration has taken a number of unilateral steps to provide some relief to undocumented workers. Starting on August 15, 2012, young undocumented individuals, often referred to as “DREAMERS” could apply for deferred action status, which allows them to remain in the United States for an initial period of two years and obtain work authorization.

On January 2, 2013, USCIS instituted a “state-side” waiver program which allows undocumented immediate relatives of U.S. citizens to apply for waivers of inadmissibility in the United States. Previously, the application had to be presented outside the U.S. and, if denied, the undocumented applicant would be unable to reenter the country thereby dividing families. This new program protects families from this draconian outcome. Despite these limited benefits, most of the estimated 12 to 15 million undocumented workers, many of whom are children, siblings, or parents of U.S. citizens, must live in the shadows, unable to obtain work authorization, driver’s licenses, or benefits despite the fact that most undocumented workers pay taxes. Although a majority of Americans now favor granting legal status to undocumented workers, opposition to such measures in Congress has allowed this untenable situation to continue.

One of the main impediments to immigration reform is the conflict between principle and practicality. Most people would agree that it is both impractical and detrimental to our country to have 10 to 15 million people, who are overwhelmingly law-abiding and hardworking, and who are closely connected to the larger community, live as an underclass in our society. The possibility of deporting all of these people or encouraging them to self-deport is quixotic at best. At the same time, many people feel that, on principle, we cannot reward people who have broken the law. This sense of principle is one of the main impediments to crafting a practical solution to this issue.

Concerns about civil liberties also punctuate this issue. For example, the government could solve the issue of illegal immigration by creating a counterfeit-proof ID card that must be used by all individuals for a number of purposes, including applying for work. Many people fear that a national ID card would give “big brother” authority to the federal government.

If the truth be told, some people are also concerned that legalization, as well as any expansion of immigration, will accelerate the process of people of color becoming the majority population in the U.S. Finally, an overarching question remains as to whether our immigration policy should serve our historical mission of welcoming the poor, the oppressed, and the “huddled masses” or whether it should be a tool for nation-building with a focus on economic growth and development. Hopefully these issues will be fully aired in the upcoming debate on comprehensive immigration reform.

Perhaps, compassion, political reality, and even a sense of duty and history, will motivate law makers to provide relief to undocumented workers in a way that also provides for the future needs of our country, including finding innovative ways to mesh the needed flow of immigration with border security, discrimination protection, and effective employer sanctions.

By: Kenneth Stern and Emily Assunta White
This article originally appeared in the March 11, 2013 edition of Law Week Colorado.
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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.



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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.