by Caroline Lee Caroline Lee No Comments

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 The Trump Administration rescinded the DACA memo after concluding that implementation of the program was inconsistent with the Constitution’s separation of powers.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then heard challenges to the rescission of the DACA program and found that the Trump administration had not properly rescinded the program.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!

by Adrianna Romero Adrianna Romero No Comments

President Biden’s Immediate Immigration Plan

On January 21, 2020, President Biden signed six presidential executive actions that will affect immigration and visas in the U.S. immediately.

DACA: President Biden has instructed the Department of Homeland Security to preserve and fortify the DACA program and calls for legislation to provide a path to citizenship for DACA recipients.

Deportation of Liberians: Due to foreign policy reasons, President Biden reinstated and extended Deferred Enforced Departure (DED) for Liberians that are currently present in the U.S. Granting qualifying applicants protection from deportation, work authorization, and the opportunity to apply for adjustment of status (green card).

The Border Wall: Former President Donald Trump declared a national emergency at the southern border to allocate funds to construct a wall along the border. President Biden terminated the declaration of a national emergency, halted construction of the wall, and plans to reallocate funds to other methods of securing the border.

Census: To ensure that all inhabitants and those living in the U.S. are equally represented, President Biden revoked the previous administration’s order to include immigration status in the national census.

Immigration Enforcement: A previous executive action signed by former President Trump broadly increased interior immigration enforcement by encouraging local authorities to enforce federal immigration laws, and stripped funding from “sanctuary cities”. President Biden revoked this order and will adhere to previous policies regarding the enforcement of civil immigration violations.

Discriminatory Bans on Entry: The so-called “Muslim Ban” was several presidential proclamations and executive orders that prohibited people from primarily Muslim countries from seeking admission into the U.S. People from these countries will once again have the ability to apply for visas/admission and the current administration plans to assess the harms caused by the discriminatory bans.

A memo regarding pending regulatory actions issued by White House Chief of Staff, Ron Klain, states that pending rules at the Federal Register that have not been published yet must be withdrawn. Also, the effective dates the the rules that have been published but have not taken effect may be postponed.

As a result, the “Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule” will be immediately withdrawn. The rule meant to “clarify” how USCIS determines whether there is an “employer-employee relationship” to qualify as a “U.S. Employer.”

The effective date of the “H-1B Wage Selection Final Rule.” will be postponed until March 21, 21. The rule replaced the annual H-1B visa lottery that randomly selects foreign professionals with a process that prioritizes those offered the highest salaries for their occupation and geographic area.

In addition to the signing several executive orders on his first day in office, President Biden has also sent the “U.S. Citizenship Act of 2021” to Congress. U.S. Senator Bob Menendez (D-NJ) has announced that he will lead the legislative effort in the Senate to introduce the bill. Representative Linda Sanchez (D-CA) announced that she will lead the introduction of the bill House of Representatives. The Biden-Harris bill calls for immigration reform that will modernize the current immigration policies to treat noncitizens more humanly and will stimulate the economy.

by Adrianna Romero Adrianna Romero No Comments


In response to a court order issued on 12/4/2020, USCIS has announced that the DACA program will be fully restored, they will resume the previous DACA policies. Meaning USCIS will once again:

  • Accept first-time requests for DACA
  • Accept DACA renewal requests
  • Accept applications for advance parole, and
  • Extend current one-year deferred action and employment authorization to two years

Judge Nicolas George Garaufis of the U.S. District Court of the Eastern District of New York issued an order requiring the Department of Homeland Security to resume adjudicating DACA applications according to the DACA policy terms in place before September 4, 2017. The order required USCIS to comply with the ruling by 12/7/2020.

The eligibility requirements for first-time applicants are the following:

  • The applicant arrived in the U.S. before their 16th birthday
  • The applicant was under the age of 31 as of June 15, 2012
  • The applicant has continuously resided in the U.S. since June 15, 2007
  • The applicant has graduated from high school or is currently enrolled or is an honorably discharged veteran
  • The applicant is over 15 years old (with some exceptions)
  • The applicant has not been convicted of disqualifying crimes and does not pose a threat to national security or public safety

Newly eligible applicants:

  • The applicant turned 15 years old after the program was rescinded in 2017 and they had previously met the eligibility requirements.

Advanced Parole allows applicants to travel temporarily outside of the U.S. for humanitarian, employment of educational reasons and re-enter the U.S. lawfully.

If DACA recipients received deferred action and work authorization for only one year (according to the July 2020 DHS memo), their current status has been extended to two years.

For assistance with renewing your DACA deferred action and work authorization or with applying for the first time, please send an email to DACA@cyavisalaw.com for more information.

by CYA CYA 102 Comments

Which States Offer Tuition Benefits for Immigrants

As of July 21, 2017, twenty-one states offer in-state tuition to certain undocumented immigrant students through legislative action at the state level or through the universities themselves. Most require that students attend and graduate from state high schools, be accepted to a state university, and promise to apply for legal student when eligible. Some of these states also allow undocumented student to apply for financial aid. There has, however, been considerable pushback in certain states from lawmakers who seek to revoke the in-state tuition policies, including Texas and Connecticut. In fact, in 2011, Wisconsin revoked its in-state tuition policy for undocumented immigrants in 2011.

On the other side of the coin, six states have enacted legislation that explicitly barred undocumented students from in-state tuition benefits (as of 2015). Arizona is one of those states. In 2006, voters enacted Proposition 300 which prohibits public benefits for anyone living in Arizona without legal status. In 2015, though, a trial court judge ruled that undocumented students who were granted deferred action (DACA recipients) were considered “legally present” and therefore qualified for state benefits. On June 20, 2017, however, the Arizona Court of Appeals overturned the trial judge’s decision and found that DACA recipients are not automatically eligible for the benefit of in-state tuition. Proposition 300 therefore continues to bar them from qualifying for in-state tuition. 

You can find a color-coded map of the states that do and do not offer tuition benefits for undocumented immigrants here (as of 2015), along with a list of enacted bills related to immigrant tuition benefits.

Read about debate over undocumented student tuition here.


by SCwpadmin SCwpadmin 673 Comments

Equally Divided Supreme Court in United States v. Texas Affirms Injunction of DAPA Program

The Supreme Court has finally announced its decision on the controversial case United States v. Texas (No. 15-674), and in effect, on the future of the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program as well. This program was an attempt by the President, through executive action, to shield close to five million undocumented immigrants from deportation, while simultaneously allowing them to legally work, similar to the administration’s previous program, Deferred Action for Childhood Arrivals (DACA). In a single statement per curium opinion however, the Court notes that the Fifth Circuit’s judgement–ordering an injunction of DACA’s expansion and DAPA’s launch–is “affirmed by an equally divided Court.” While the 4 to 4 deadlock means the injunction will remain in place, the precedential value of this decision going forward on jurisdictions outside of the Fifth Circuit is negligible at best, and ambiguous at worst. Whatever the ruling’s effect on the president’s authority to act unilaterally, it seems assured that President Obama’s successor will inherit the task of reworking the nation’s immigration system.

The President made a brief statement to press in response to the Court’s decision, available here.

by SCwpadmin SCwpadmin 93 Comments

DAPA and Expanded DACA Case to be Heard by the U.S. Supreme Court on April 18, 2016

United States v. Texas, the lawsuit filed by 26 states against President Obama’s DAPA and Expanded DACA immigration reform programs, has been officially scheduled for oral argument before the United States Supreme Court on April 18, 2016.  This lawsuit was filed 16 months ago after President Obama used his executive powers to order the creation of DAPA and Expanded DACA, programs that expanded eligibility requirements for the DACA program and allowed undocumented parents of citizens and lawful permanent residents to apply for work authorization and protection from deportation.  The 26 states, led by Texas, argue that the President’s implementation of these programs through executive action was unconstitutional and that he bypassed federal procedure for changing the law.  The United States Supreme Court will consider these questions during oral argument on April 18, 2016 and could issue a decision on this case as early as June 2016.

by SCwpadmin SCwpadmin 24 Comments

United States Supreme Court Will Hear Case on President Obama’s Executive Actions on Immigration

The United States Supreme Court announced that it has granted the petition for writ of certiorari to hear Texas v. United States, the lawsuit that has stalled President Obama’s executive action programs of DAPA and Expanded DACA from taking effect. The Court is expected to answer the question of whether the President’s executive orders violated the Take Care Clause of the U.S. Constitution at Article II Section III. The Take Care Clause commands that the President take care that the laws of this country be faithfully executed. This ruling will determine the ultimate fate of the President’s long-anticipated programs and will be a key decision in this presidential election year during which immigration is such a hotly debated topic.

by SCwpadmin SCwpadmin 46 Comments

U.S. Supreme Court to Decide Whether to Hear Case on Obama’s Executive Action Programs

The long drawn-out battle for President Obama’s Executive Action programs such DAPA and Expanded DACA may be heard and decided this summer at the United States Supreme Court. These programs, which were announced more than one year ago, have been in limbo pending a lawsuit brought against the Obama Administration by 25 states led by Texas.  As a result of this lawsuit an injunction was ordered which stopped these programs from being put into place.  Now, if four of the nine Supreme Court Justices decide to accept this case it will likely be argued before the Court in April and decide by the end of June.  If the Court rules in the President’s favor, the injunction against the implementation of DAPA and Expanded DACA will finally be lifted and President Obama will see his Executive Action programs take effect before he leaves office.

by SCwpadmin SCwpadmin 96 Comments

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.

by SCwpadmin SCwpadmin 410 Comments

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.