Serving the Unlawful Presence Bar Inside the United States

 

The U.S. immigration laws punish foreigners who have unlawfully stayed in the country by banning them from applying for a visa or admission for a period of time.  If an individual is present in the U.S. for more than 180 days illegally, the person is not allowed to be admitted for 3 years after her departure or deportation.  For those who have accumulated more than one year of unlawful presence, then for 10 years they will not be readmitted after departure or deportation.  In the past, unless waivers are granted, foreigners subject to these "unlawful presence bars" must wait 3 or 10 years outside the U.S., before they can reapply for admission.  A recent change in immigration policy brings good news to them. 

In June 2022, USCIS issued a policy guidance allowing previously unlawfully present foreigners to serve the 3 or 10 years of non-admission within the U.S.  The change is good news because these individuals no longer have to be separated from their family and friends while waiting.  Before this guidance, there was confusion as to how one may meet the 3 or 10 years requirements.  The new guidance confirms that the required 3-year or 10-year period starts to run after the foreigner's departure from the U.S.  Further, the period continues to run without interruption for 3 or 10 years, regardless of whether the individual has returned to the U.S. or now.

The change is a major shift in USCIS policy, as illustrated by a recent case decision.  In that case, the foreigner was admitted to the United States as a visitor in August 1997, overstayed until March 1999. She then reentered the U.S. again as a visitor in January 2000, and departed again in August 2001.  In June 2008, she entered the U.S. again and has remained since then. She applied for a waiver of her unlawful presence ground of inadmissibility so that she can be admitted as a legal resident, which was denied by a USCIS Director.  On appeal, the AAO reviewed the case in light of the new policy and concluded that a waiver is not needed.  AAO explained that she was subject to the unlawful presence bar based on her previous unlawful presence for more than one year.  However, 10 years have already passed since August 2001, her second departure, and she is no longer inadmissible. As a result, she does not need a waiver.  

Although the new policy allows foreigners to serve the statutory periods in the U.S., an applicant for admission could be subject to other grounds of inadmissibility or other legal bars. For example, if an individual returned to the U.S. after departure without inspection, then she will not be eligible for adjustment of status.  Hence, foreigners should try to return legally. Some applicants such as DACA beneficiaries may be able to return legally to the U.S. by applying for a non-immigrant visa such as F-1 or H-1B with a non-immigrant visa waiver.  Other individuals may have to take other course of actions. One size does not fit all.  It is critical for foreigners to first discuss their options with an experienced attorney before taking actions.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

DACA Applications May now be Filed Online

USCIS announced today that applications for deferred action under Deferred Action for Childhood Arrivals (DACA) and the related Employment Authorization Document may now be filed online.

Consistent with a court order issued by a Texas federal court in July 2021, DHS is accepting the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. DHS, however, will continue to reject initial DACA requests.

DACA applicants ("dreamers") may now file Form I-821D, Consideration of Deferred Action for Childhood Arrivals, as well as the related Form I-765, Application for Employment Authorization, online. 

According to USCIS, the agency received 438,950 Form I-821D DACA requests during FY 2021.   

Applicants are reminded that they must still meet the regulatory requirements in order to obtain DACA benefits.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Supreme Court Upholds DACA

Dreamers can now breathe a little easier. Years after the Trump administration first sought to end

DACA (Deferred Action for Childhood Arrivals), the split U.S. Supreme Court made the decision on Thursday to uphold the program.

DACA provides temporary protection to "dreamers", people that were illegally brought to the US as a child, granting them work authorization and other privileges. Specifically, it applies to current students or honorably discharged veterans who were under 31 years of age as of 2012. They must also have lived in America since January 1, 2020 and completed high school. DACA prevents deportation of many young people who know America as their home and have barely any memory of their birth country.  Individuals who have a serious criminal background or pose a threat to national security or public safety are not eligible for DACA.

The decision doesn't guarantee that DACA is immediately reinstated or here to stay. President Trump and the Department of Homeland Security (DHS) have both voiced their displeasure on the decision. It is likely that this ongoing discord will complicate DACA procedurally down the road, possibly through tightened requirements and adjudication.

Furthermore, the decision blocked the rescission on the basis that proper rule-making procedures were not followed. Otherwise, Chief Justice Roberts writes that "the wisdom" of DACA policy and rescission "is none of our concern". Were the Administrative Procedure Act (APA) properly followed, the 5-4 decision could have been vastly different -- and there is nothing about this decision that stops DHS from launching another attempt to cancel DACA by following the proper legal procedures. 

There are approximately 700,000 to 800,000 DACA recipients in the US.  The actual number of dreamers can be in the millions, as many of them are afraid to come forward due to fear of apprehension or simply ignorance of their rights.  Past legislative efforts such as the DREAM Act have failed to materialize, but ultimately this is an issue that must be and should be addressed by Congress. 

Still, the decision is good news. DACA has not been eliminated, giving dreamers a chance to remain and work in the country. For now, we must wait for the release of more specific information to know when and how people can apply for DACA benefits such as employment authorization documents. 

DHS Statement Regarding Acceptance of DACA Applications

To comply with federal court injunctions, the Department of Homeland Security (DHS) has agreed to continue processing DACA applications.  In a press statement dated March 7, 2018, DHS provided the following guidance regarding DACA applications for temporary stay and EAD: 

Acceptance of Applications: DACA applications for renewal of their status and EADs are being accepted by USCIS for adjudication.  USCIS will process these applications based on previous DACA renewal timelines.  

Those are not Eligible to Apply: Applicants who have not previously submitted DACA applications will not be allowed to apply now.

Danger of Removal:  Regarding enforcement actions against DACA recipients, DHS states that they are not a priority or target group for arrest or removal, absent additional negative factors such as criminal conduct, DUI, etc.  Generally speaking, individuals who pose a threat to U.S. national security or public safety are subject to arrest and removal.

Employment Authorization: DACA applicants who are eligible for deferred action status are also eligible to apply for Employment Authorization Document (EAD), typically for 2 years.  With these EADs, DACA recipients may work for any employers in the United States. Periods of employment authorization are not retroactive and, therefore, applicants should apply at least 120 days in advance of expiration.

Denial of Requests:  DHS encourages qualifying individuals to file a DACA request.  DHS also states that some individuals may not be approved for DACA benefits due to their individual situation.  For example, those with a criminal background will likely be denied DACA benefits.  

According to statistics of Migration Policy Institute, approximately 1.3 million individuals are eligible to apply for DACA benefits. Only 52% of these individuals actually participate in the program. Most DACA recipients come from Central and South America.  Smaller percentages of recipients are from Asian countries including the Philippines (21%), India (17%), South Korea (15%), China (3%), Vietnam (1%), etc. 

Dreamers Take a Breather After Supreme Court Declined to Hear DACA Case

The DACA program, initiated by the Obama Administration, allows certain youngsters to apply for temporary permission to stay and work in the United States.  Approximately 700,000 young people, who were brought to the U.S. without their own fault, may continue to enroll or extend status in the program after the U.S. Supreme Court has declined to agree to hear a DACA case.  

Last September, the Trump Administration announced it will officially end the DACA (Deferred Action for Childhood Arrivals) program by March 2018, and any final applications must be filed by October 5, 2017.   Subsequently,  the University of California and its president, former Homeland Security secretary Janet Napolitano, sued to keep the DACA program going.   On January 9, 2018, a federal district court judge in San Francisco issued an injunction to block the government's plan to halt DACA.  The Trump Administration decided to file an appeal with the 9th Circuit Court of Appeals in California.  It also took the highly unusual step of asking the U.S. Supreme Court to hear the case before the appellate court issues a decision. 

Today, the nation's highest court refused to grant certiorari to hear the controversial case.  It means that the DACA program may continue for now.  It is important to note that those who did not meet certain threshold program requirements or fail to timely enroll previously will continue to be ineligible to  apply for DACA benefits.  Further, today's development is only a temporary relief.  Without new laws passed by Congress to address this issue, the future of the Dreamers continue to be uncertain.  

DACA is officially ended but limited extensions permitted

The word is finally out.  

The Attorney General and Department of Homeland Security today announced the official termination of DACA (Deferred Action for Childhood Arrivals) program after much anticipation and opposition. 

Effective immediately, no new DACA applications will be accepted. Applications that have already been submitted as of September 5, 2017 will continue to be adjudicated on a case-by-case basis.

DACA beneficiaries with valid Employment Authorization Document (EAD) will be allowed to continue working until expiration.

DACA beneficiaries whose EAD expires on or before March 5, 2018 will be allowed to apply for two-year extensions but applications must be filed on or before October 5, 2017.  

DACA beneficiaries with valid approved Advance Parole travel documents may continue to use them.  No new Advance Parole will be accepted or approved.  Pending applications will be closed and application fees refunded.  

DACA beneficiaries who fall out of status are subject to removal from the United States, although the Trump Administration is not targeting them for removal at the present time.  Individual DACA beneficiaries may be eligible for other forms of immigration relief.  They should consult a qualified immigration attorney as soon as possible. 

Speaker Asks President Trump to Re-Consider Killing DACA

Today, CNN reports that House Speaker Paul Ryan has asked the President to hold off his plan to complete cancel DACA (Deferred Action for Childhood Arrivals program).  Reportedly the President is still "mulling" the idea. 

Ryan has long been sympathetic to the plight of Dreamers. At a CNN town hall at the beginning of the year, Ryan was asked by a young woman protected under DACA whether he wanted her deported. He said he was working with the Trump administration and seeking a "humane solution."   "What we have to do is find a way to ensure that you can get right with the law," the speaker told the young woman.

DHS Secretary Rescinds DAPA; DACA Not Affected for Now

Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders, commonly known as DAPA, did not go too far after it was proposed by President Obama in 2014.  Recently, DHS Secretary Kelly finally put the nail in the coffin.  

On June 15, Secretary Kelly signed an agency memorandum rescinding Obama's November 20, 2014 memorandum, which created the DAPA program.  According to Secretary Kelly, after consulting with the Attorney General, there is no viable way to litigate the program in court.  

Under the DAPA proposal, undocumented parents of U.S. Citizens and green card holders can stay in the U.S. for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks, and pay back income taxes.

The DAPA program never went into effect after it was proposed. Twenty-six (26) states filed a lawsuit to block the implementation of DAPA.  The states argued, among other things, that under DAPA the States would incur additional costs to produce driver's licenses for DAPA beneficiaries. Consequently a Federal District Court judge in Texas granted an order of temporary injunction against the executive of the DAPA program in 2015.  The Obama Administration appealed to the 5th Circuit Court of Appeals, which also sided with the states.  The case went to the U.S. Supreme Court.  In a 4-4 decision, the Supreme Court affirmed the lower court's decision.  What all this means was that the DAPA program could not be implemented. 

Secretary Kelly's rescission of DAPA should not come as a surprise.  The Trump Administration has long been vocal against Obama's immigration policy and executive actions favoring the undocumented.  In fact, rescission was not even necessary here.  By not filing additional pleadings with the court, the program would remain dead.  

The good news is that Secretary Kelly's memo does not affect the sister program of DACA (Deferred Action for Childhood Arrivals).   DACA allows individuals who were brought to the U.S. illegally as children and who have completed their high school education to apply for temporary legal status to live and work in the U.S.  The Frequently Asked Questions of the Rescission memo specifically confirm that the DACA program will not be affected by Secretary Kelly's memo. DACA recipients will continue to be able to apply for their two-year extension and employment authorization documents (EAD).  An estimated 800,000 individuals in the U.S. are eligible for DACA benefits.

However, some observers are not optimistic about the future of DACA given the Trump Administration's tough stance against illegal immigration.  Although President Trump has expressed sympathy for childhood arrivals, and DACA program remains to be in effect for now, there has been reports that some DACA beneficiaries are targeted by ICE.  For example, ICE has started to initiate deportation proceedings against DACA beneficiaries who have violations including DUIs.  Hence, it is important for these beneficiaries to live a responsible life, pay taxes and avoid any violations of law.  

President-Elect's Immigration Policy

Many people are nervous about the newly elected president's immigration policy.  The sentiment is understandable, given the strong rhetoric that we have been hearing since the beginning the presidential campaign.  However, it remains unclear how much of his immigration policy will actually be implemented after Mr. Trump takes office in January.  In fact, the President-elect has already softened his tone in his victory speech by emphasizing that he will be the president "for all of Americans" and will seek "common ground, not hostility; partnership, not conflict."   The following are the immigration-related items on his policy agenda within the first 100 days: 

Building a wall on the U.S.-Mexican border:  Among all the items on Mr. Trump's immigration agenda, this one is most likely to come to fruition.  Mr. Trump has repeatedly announced his intention to build a wall on our southern border to curtail illegal immigration.  However, the devil is always in the details. There will be a hose of logistical, technical, legal and financial issues involved regarding such a plan.  How long and tall should the wall be? What security and safety measures will be implemented?  Who is going to pay for it?  Mexico’s president already stated that his government is not willing to finance such a project.  Mr. Trump had suggested imposing some sort of tax when Mexican citizens send money to Mexico.

In a recent TV interview, Mr. Trump stated that fences will be installed instead of walls in certain regions of the border.

Suspending immigration from terror-prone regions:   To a certain extent this is already being done by the Obama administration.  Anybody with a questionable background is already being scrutinized by the U.S. government; many have already been refused visas to enter the U.S.

Renegotiating NAFTA or withdrawing from the agreement:   As some scholars already stated, it will not be easy for the U.S. to unilaterally back out of the agreement without tremendous rippling effects. The North American Free Trade Agreement (NAFTA) was negotiated and finalized by leaders of Canada, Mexico and the U.S. In fact, two U.S. presidents were involved in the process. The program was approved and ratified by Congress.  Tens of thousands of professionals are working in these three countries under NAFTA.  Killing it completely will definitely cause a lot of economic damage to many businesses.  Renegotiating and amending the terms of NAFTA is a more likely scenario.

Revoking existing programs such as DACA:  The President-elect has vowed to cancel every "unconstitutional executive action, memorandum and order issued by President Obama".  So this will likely include President Obama’s Deferred Action for Childhood Arrivals (DACA) program. This program allows individuals who were brought to the country as children to receive temporary protection from deportation and employment authorization. More than one million individuals have enrolled in the program.  Mr. Trump could stop the program when he takes office.  What remains unclear is how he is going to deal with the existing beneficiaries. 

Canceling all federal funding to Sanctuary Cities:  This action will have significant impact to the finances of many metropolitan areas.  Many major U.S. cities including Seattle, New York, Chicago, Los Angeles, Miami, etc., are Sanctuary Cities.  Cutting their funding will likely affect many social programs. 

Begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won't take them back:  Mr. Trump initially wanted to remove all illegal immigrants form the country.  Now his priority is to remove the 2 million criminal illegal immigrants first.  This is merely a continuation of what President Obama has been doing. Unbeknownst to many, record numbers of criminal aliens have been removed from the U.S. under the Obama Administration. As president, Mr. Trump certainly has the authority to direct his Secretary of State to cancel U.S. visas issued to the nationals of foreign countries - such as Iran, Zimbabe, Cuba, etc. - that have refused to accept the return of their nationals. 

Legal immigration and high-tech visas:   Legal immigration and high-tech visas are not on the 100-day agenda of Mr. Trump. His position on the H-1B Visa Program has changed before. Many observers, including CEOs from the Sillicon Valley, believe and hope that, given his business background, Mr. Trump is unlikely to take any drastic actions against the high-tech visa programs. Regarding legal immigration, Mr. Trump stated that he intends to modernize the existing programs to speed up legal immigration and improve efficiency.

For those who are nervous about their immigration status, they should take measures early on before any changes take place. Things to do now -  Apply for U.S. citizenship immediately if eligible;  start any visa or green card petitions, or any other benefit applications as early as possible; and stay in close contact with their immigration attorneys.  

Supreme Court Affirmed Block of Deferred Action for Parents of American Citizens/Residents

Perhaps the recent Supreme Court decision should not come as a big surprise.  After the passing of Justice Antonin Scalia, the Supreme Court was left with only eight (8) Justices, and a 4-4 split decision is likely in cases involving controversial or political issues. In United States vs. Texas, the U.S. Government requested to overturn an injunction against implementation of two immigration programs initiated by the Obama Administration - (1) Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), (2) Expanded Deferred Action Program for Childhood Arrivals (DACA) program.  Since the Supreme Court was equally divided along ideological lines, the Fifth Circuit Court of Appeals' decision blocking these programs was affirmed.

The DAPA and expanded DACA programs have been opposed by conservative groups right from the beginning.  Deferred action programs are nothing new in the context of immigration.  In fact, previous presidents from both the Republican and Democratic parties, including Eisenhower, Reagan, Bush and Obama, have taken similar actions to alleviate various immigration problems.  

Ordinarily the legislative branch of the government should pass laws to handle immigration matters including individuals who are in the U.S. illegally. Unfortunately due to political reasons, the partition Congress has not been able to function properly. In the absence of Congressional acts, it is both reasonable and necessary for the executive branch to take appropriate actions.  Deferred action is one of the inherent powers of the president that can be used to deal with millions of individual unlawfully present in the U.S.  United States vs. Texas tested the limits of this executive power. 

The Supreme Court decision in Texas, however, may not be as significant as the headlines suggest. First of all, the split decision sets no Supreme Court precedent. In fact, the Court only issued a one-line decision without opinions.  Since it was an equally split decision, the lower court's decision will stand automatically. It is also important to note that Supreme Court decision does not affect the Deferred Action for Childhood Arrival (DACA) of 2012.  Individuals who were found eligible under the 2012 DACA program may continue to extend their deferred action status under the existing regulations.  

It is unfortunate that the Supreme Court was not able to take this opportunity to settle the challenge to deferred action and set legal guidance for future programs.  However, there will be other opportunities for precedent decisions by the Supreme Court, as federal courts continue to hear and decide cases involving similar immigrant issues.   One thing that we can rely on is that America's immigration laws and policies never stay the same for too long.  Political changes (Ex. presidential elections), economic climate, shifts in cultural paradigms, etc., will keep on changing that nation's policies and attitudes towards immigration.  

Supreme Court to hear Controversial Deferred Action Case

Today, the U.S. Supreme Court announced that it will hear the controversial case of Texas vs. United States concerning the Government's plan to grant deferred action status to millions of long-time illegal immigrants in the U.S. who are parents of U.S. citizens and residents.  

In November, the Fifth Circuit sided with the lower Federal District Court and upheld the injunction against the Obama Administration to implement its new DAPA (parents of U.S. citizens and legal residents) and expanded DACA (childhood arrivals) programs.  These programs are part of the Administration's executive plan to reform the U.S. immigration policy. 

In granting certiorari, the Supreme Court also asked the parties to brief on the issue of whether the deferred action plan violates the "Taking Clause" of the United States Constitution.  The Taking Clause of the Fifth Amendment provides that private property should not be taken for public use, without just compensation.

The timing of this case is particularly interesting in light of the recent heated debates on immigration among the presidential candidates.  The case is expected to be decided in June, but the future of the these deferred action programs will ultimately depend on the result of the upcoming presidential election.  

Obama Administration Seeks Supreme Court Review on Deferred Action of Millions

The Obama Administration filed a formal request with the United States Supreme Court on November 20, 2015, asking the nation's highest court to overturn an injunction against its DAPA and expanded DACA programs.

The DAPA and expanded DACA programs, which are part of President Obama's “immigration accountability executive action," have been challenged by the Republicans and conservatives. Twenty six (26) states filed a lawsuit challenging these executive programs.

On February 16, 2015, a federal district court in Texas entered a preliminary nationwide injunction against the implementation of these programs.  The injunction was upheld by a divided Fifth U.S. Circuit Court of Appeals in New Orleans on November 9, 2015.  The administration promptly appealed this decision to the U.S. Supreme Court.  Considering the scope and importance of this case, the Supreme Court will likely grant certiorari to hear the case.

A Matter of Federal Authority

The gravamen of the case is whether the Obama Administration exceeded its executive authority in deciding to grant deferred action to certain categories of foreign nationals present in the U.S.  One such class of people are certain parents of  of U.S. citizens and lawful residents under the DAPA program.

The Administration's rationale is that, with only limited resources and funding, it is not possible to remove the estimated 11 million of unlawful immigrants from the United States.  As the executive branch, it has legal authority to use discretion to prioritize deportation of criminals, recent border crossers, national security threats, and other repeat immigration offenders.

For others who don't pose danger to society and have strong family ties, the administration has plans to defer their deportation, bring them out of the shadow, process and register them in the system, and  also grant them permission to work.

A Fight of Semantics

A large part of the fight is semantics.  For example, the Republican-controlled States argue that the Obama Administration does not have the legal authority to grant deferred action to a class of individuals in the U.S.  Such a benefit should only be granted by Congress, they argued. To be clear, "deferred action" itself is not an immigration benefit that would confer status or rights to an individual as political asylum (granting permanent protection and resident status) or adjustment of status (granting legal resident status) would.  A "deferred action" is simply a temporary suspension of legal action (deportation) against an individual.  It is well-settled that the executive branch agencies such as the DHS and former INS have authority to defer actions again certain individuals or groups of individuals.  For instance, in 2005, DHS granted deferred action to foreign students affected by Hurricane Katrina.

As another example of semantic differences, the Fifth Circuit commented in its decision that deferred action status would award "lawful presence" to the DAPA beneficiaries. True, those who are granted deferred action are no longer considered unlawfully present in the U.S.  Thus, their presence in the U.S. can be described as lawful. But such "lawful presence" is distinguishable from other "legal statuses" such as H-1B temporary worker status, F-1 student status, refugee status, etc., which are legal statuses created by Congress that come with a hose of statutory benefits.  In contrast, deferred action is merely a temporary administrative grace that can be revoked at any moment without notice. Yet, it is apparent from the context that the Fifth Circuit uses the term "lawful presence" as if it is a substantive legal status.  

Permission to Work

The Fifth Circuit agrees that the administration through DHS has the authority to grant deferred action to DAPA beneficiaries.  However, it held that the agency exceeded its authority by granting them employment authorization.  It accepted the argument that the plaintiff States would suffer financially by granting temporary driver's licenses to these individuals.  The Obama administration's response is that employment authorization is only incident to deferred action status, as people in deferred action status need to work to survive.  Withhold employment authorization, they would be forced to work off the books.  Further, the DHS Secretary has independent authority to grant employment authorization to any groups of foreign nationals, regardless of deferred action.

It is Always About Money
Financially, the Obama Administration argues that the States have no legal obligation to provide benefits to individuals in deferred action status.  Texas could choose to stop granting temporary driver's licences to these individuals.  

The Fifth Circuit's counter argument is that it would still cost Texas financially if it has to take legislative actions to eliminate state benefits to DAPA beneficiaries. Why is this important? In order for their case to be valid, the States must prove injury. Otherwise they would have no standing or basis to sue under the Administrative Procedure Act (APA).  

The Administration also argues that, if the States' economic argument was to stand, it would lead to other similar lawsuits. For example, if a state voluntarily decides to adopt the definition of "adjusted gross income" created by the IRS, the state could then sue the federal government for economic loss if it's revenues decreased as a result of a change in the calculation of "adjusted gross income" by IRS. Although such an argument is a bit far-fetched, it works as a reminder to the Supreme Court that its decision could open up a floodgate of lawsuits against federal agency actions.

Notice and Comment
Under the U.S. Constitution, the federal government has very broad power over the administration of immigration laws.  The U.S. Supreme Court will be unlikely to change this long-standing authority in its decision.  On the other hand, the Supreme Court may take issue with the Administration's failure to use the notice-and-comment rulemaking process to implement the new executive action programs. Under the APA, government agencies are usually obligated to publish any proposed rules and regulations in the Federal Register and allow a period of time for the public to provide written feedback and comments.  There is an exception:  the APA exempts from notice-and-comment all “general statements of policy." According to Obama Administration, its executive action programs fall under this exception, and hence the States' lawsuit must be dismissed.  How strong this argument is depends on what constitutes "general statements of policy".  As many Supreme Court decisions hinge on the meaning of a single word or phrase, the outcome of this important case remains unclear.

USCIS To Conduct Home Visits to Recall DACA EADs

Texas Federal Judge Andrew Hanen imposed a 07/17/2015 deadline for USCIS to recall a few thousand incorrectly issued 3-year Employment Authorization Documents (EADs) from DACA beneficiaries, in relation to his temporary injunction against USCIS execution of the DAPA Program. 

These beneficiaries should have been issued 2-year EAD cards instead.  Some applicant had already returned their 3-year EAD cards to USCIS,  but there are still some outstanding cards out there.   USCIS has informed the immigrant communities that it will be conducting home visits to retrieve these EADs. USCIS will at first conduct a “pilot” program in Chicago, Los Angeles, Houston, Dallas, and potentially San Francisco, to be expanded to other areas with large percentages of DACA beneficiaries.  A receipt will be issued to DACA beneficiaries who return their EADs. DACA beneficiaries may also return their EAD cards to any USCIS Field Offices.  

It is very important for DACA beneficiaries to return their incorrectly issued 3-year EAD cards as soon as possible, if they haven't done so.  Otherwise, they could lose eligibility to DACA and other immigration benefits. 

Expanded DACA and DAPA suspended; Existing DACA not affected

In light of of the temporary injunction issued by a federal court judge in Texas on President Obama's executive action plans, the Department of Homeland Security (DHS) issued a press release today announcing that DHS will not accept applications for expanded DACA relief tomorrow (02/18/2015) as planned.  The DAPA program will also be suspended temporarily.  

However, the Department will continue to accept and process applications filed by existing DACA beneficiaries and other types of benefit applications.  DHS Secretary Jen . C. Johnson stated that the DOJ will appeal the temporary injunction order, which was issued as a result of lawsuits filed by twenty-six (26) Republican-controlled states.  

USCIS to accept expanded DACA applications on February 18, 2015

On November 20, 2014, President Obama announced a series of executive actions to reform the current immigration system including allowing certain parents of U.S. citizens and residents to stay and work in the U.S. without fear of deportation, as well as expanding the Deferred Action for Childhood Arrivals (DACA) program.  USCIS just announced that the federal agency will begin accepting applications for the expanded DACA program on February 18, 2015.

Expanded DACA Program

The expanded DACA program is for individuals present in the U.S. without legal immigration status to apply for deferred action benefits for the first time.  Existing DACA program participants may also take this opportunity to renew their DACA benefits.   Under the expanded program, the period of deferred action and employment authorization will be three years, and the current age of the applicants will no longer be a factor for consideration.  (Under the existing program, applicants must be 30 years old or younger and the benefits only last two years).  

Further, under the expanded program, applicants who have lived in the U.S. continuously since January 1, 2010 will be eligible to apply (as opposed to the prior requirement of June 15, 2007).   Applicants must still be currently enrolled in school, have graduated from high school, has obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States.  They must not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.  

Application Process

Under the existing DACA program, applicants must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Form 765, Application for Employment Authorization Document and Form 765 WS.  Additionally, applicants must also submit documents proving their identity; evidence that they came to the U.S. before the age of 16; evidence that they have been continuously living in the U.S. since January 1, 2010; and  evidence that they are attending school or have graduated from high school or proof they were honorably discharged from the Coast Guard or Armed Forces of the U.S.

Other immigration reform changes

Other changes regarding immigration reform will be rolled out slowly.  For example, the deferred action for parents of U.S. citizens and lawful permanent residents (DAPA) is expected to take effect by mid or late May.  Tens of thousands of applications will be submitted to the USCIS once the application window is open, and the processing time is expected to be long.   We are advising our clients to get their documents ready as early as possible so that we can submit their applications immediately once the application window is open.