DAPA delay continues after Appellate Court denied Obama Administration's request to lift injunction

The 5th Circuit Court of Appeals rejected the U.S. Government's request for a stay of an injunction

imposed on it's Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).  The DAPA program was announced by President Obama in last November to allow certain undocumented residents of the United States to temporarily stay and work legally for two years if they are parents of U.S. lawful residents or citizens. However, in response to a lawsuit filed by twenty-six (26) states challenging the program, a Federal District Court judge in Texas issued an Order of Temporary Injunction against the execution of the DAPA program on February 16, 2015.  The Obama Administration appealed this injunction to the 5th Circuit.  Today, the 5th Circuit U.S. Court of Appeals voted, 2-1, to deny a emergency stay of the injunction.  As such, the future of the DAPA program remains uncertain.

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.   

President Obama's Executive Immigration Reform Plan - A Bullet Point Summary

Tonight, President Obama announced his executive plan to reform the current U.S. immigration

system.  Below is a summary of the most important points:

• Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders: These parents can stay for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks and pay back taxes.  This rule should take effect in 180 days.

• Expansion of Deferred Action for Childhood Arrivals (DACA):  This action will benefit more undocumented young people who were brought to the U.S. as a child (before the age of 16). The applicant must have been in the U.S. since January 1, 2010 (extended from June 15, 2007).  The present age of the applicant is no longer a criterion for consideration.  All other DACA requirements will remain in effect. These young people will also be allowed to stay and work in the U.S. for three (3) years. This rule will take effect in 90 days.  

• Expansion of I-601A Provisional Waiver to include spouses and children of LPRs:  People who have been unlawfully present in the U.S. need a waiver before they may apply for permanent residence status.  Provisional waivers allow undocumented individuals to submit their waiver applications in the U.S. before they apply for a visa to return.  Currently only immediate relatives of U.S. citizens may apply for provisional waivers.  Under the new rule, spouses and children of green card holders will also be eligible for provisional waivers.

• Foreign Workers with Approved I-140 Petitions May File I-485 Adjustment Applications Earlier:  This is very good news for the 410,000 EB applicants who have been waiting for available visa numbers.  They will be allowed to apply for employment authorization documents (EADs) and travel documents with the I-485s.  Exactly how early they may submit their I-485s will be addressed by regulation. 

• H-4 Spouses Employment Authorization (EADs):  This was proposed in May.  The regulation will likely be finalized in December or January. 

• Foreign Entrepreneurs Will Get Parole Status:  Certain foreign investors will be allowed to enter or stay in the U.S. in "parole" status.  

• Foreign Entrepreneurs, Researchers, Inventors, and Founders Eligible for National Interest Waivers  (NIW):  They will be allowed to bypass the labor certification process and apply for green cards directly. 

• STEM OPT Will be Expanded:  The length of time for STEM OPT will be extended.  Subsequent non-STEM degrees are also being considered for eligibility. 

• Optimal Use of Immigrant Visa Numbers:  The President will direct immigration-related agencies to look at modernizing the visa system, in an attempt to achieve optimal use of the numbers of visas.  For examples, whether dependents should be counted towards the visa quota and recapture of unused visa numbers will be considered.  

• Prioritizing Enforcement Efforts:  The top three priorities will be: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. 

(Any questions regarding the President's new plan can be sent to info@szetolaw.com.)

USCIS Begins Accepting Deferred Action Applications for Childhood Arrivals on August 15, 2012

The USCIS announced that it will begin accepting applications, effective August 15, 2012, for consideration of deferred action for childhood arrivals.   The Deferred Action program was announced by the DHS Secretary on June 15 to allow certain young people who came to the United States as children to apply for permission to stay and work in the United States.

The requests for Deferred Action should be made through the filing of the new I-821D form recently published by the USCIS.  Eligible applicants must also submit all required documents and evidence to prove their eligibility.  To qualify as a “Childhood Arrival” under this program, the applicant must meet the following criteria:

• Was under the age of 31 as of June 15, 2012;
• Came to the United States under the age of sixteen;
• Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;
• Have continuously resided in the United States since June 15, 2007;
• Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Each case will be reviewed on a case-by-case basis.  Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.  Extensive documents including passports, I-94 forms, school documents, employment documents, medical documents, military documents, sworn statements, etc., must be submitted as evidence of the applicant’s eligibility.

If a person’s Deferred Action application is approved, he or she will not be removed from the United States for a two-year period or subject to renewal.  Further, the person may also apply for employment authorization to live and work legally in the United States.  But it is important to note that Deferred Action does not grant lawful permanent residence status, i.e., green card, to applicants. 

For further information, please contact our office at info@szetolaw.com or 732-632-9888.  Our website is www.szetolaw.com.

Additional information on the Deferred Action Program for youngsters

On June 15, 2012, DHS Secretary released a memorandum authorizing the implementation of a Deferred Action program for young people who came to the U.S. under the age of 16 to be able to obtain temporary legal status.  Since then the DHS has released additional information on this program including the eligibility requirements, implementation process, and other related information.  The following is a summary of the key points:

What are the additional requirements for the Deferred Action Program?

Other than the requirements that the applicant entered the U.S. before the age of 16; attending or graduated from high school or having honorably served in the military; be a person of good moral character, etc., there are a few other additional requirements.  For example, applicants must be 15 years or older before they can apply.  Further, they must undergo a background check.  An individual must prove that he or she has resided in the United States for a least five years preceding June 15, 2012.  However, brief and innocent absences undertaken for humanitarian purposes will not violate this requirement. Finally, if they are subject to a final order of removal, their case will be subject to further review to determine if they are eligible.

How will the new Deferred Action be implemented?

Group1: Individuals who are not in removal proceedings will have to submit a request  for a review of their cases with supporting evidence to U.S. Citizenship and Immigration Services (USCIS).  Individuals may request deferred action if they meet the eligibility criteria.  The USCIS will release additional info on June 18, at their hotline number  1-800-375-5283.
Group 2: Individuals who are in removal proceedings before the Immigration Court or BIA, the Immigration and Customs Enforcement (ICE) will come up with a process to determine applicants' eligibility.   Beginning June 18, individuals may call the ICE hotline at 1-888-351-4024 for more info.

Group 3: Individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action to them.   

What are the benefits of the Deferred Action program?

Applicants who are granted deferred action will be issued employment authorization document (EAD) with two-year duration.  Renewals of both deferred action and the EAD are allowed.   However, they will not be granted permanent resident status or a pathway to obtaining permanent lawful status. Beneficiaries of deferred action may not bring their spouses and other dependents to the U.S. Each person must meet the requirements individually. DHS has not yet decided whether international travel is allowed after an individual is granted deferred action.

What documents are needed to prove eligibility?

Required documents to prove eligibility include but are not limited to: financial records, medical records, school records, employment records, military records, diplomas, GED certificates, report cards, and school transcripts. To prove an honorable discharge, one may use report of separation forms, military personnel records, and military health records.

What criminal background will render an individual ineligible for Deferred Action?

Individuals who have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same scheme of misconduct are not eligible to be considered for deferred action under the new process. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.  A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

For individuals who do not satisfy the eligibility criteria under this new process, can they still apply under the June 2011 Prosecutorial Discretion Memoranda?

Yes, these individuals may then request an exercise of prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda from ICE.  USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda. 

Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?

One may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion.  However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. Individuals in removal proceedings who believe their cases were not correctly handled may contact the ICE Office of the Public Advocate either by phone at 1-888-351-4024 or by e-mail atEROPublicAdvocate@ice.dhs.gov. 

If an individual’s request to USCIS for deferred action is denied, will he or she be placed in removal proceedings?

Under the existing DHS policy, individuals whose requests are denied under this process will be referred to ICE if  they have a criminal conviction or there is a finding of fraud in their request. 

How soon will a decision be made?

USCIS has not released information about the processing time of these requests yet. Stay tune for more information.

What if an individual is about to be deported from the U.S.?

If an individual is about to be deported but believes that he or she can meets the requirements for deferred action, he/she should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, seven days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.   They should also contact a qualified immigration attorney for assistance.

Deferred Action program provides temporary relief to Dreamers.

On June 16, 2012, President Obama and the Department of Homeland Security (DHS) announced that the executive branch of the government is going to exercise its prosecutorial discretion not to enforce the immigration laws against certain group of young people who were brought to this country as children and have treated the U.S. as their home country.  According to DHS, since these individuals did not intent to violate the immigration laws, the government will review their cases and consider granting Deferred Action to allow them to stay in the U.S. temporarily.  

Deferred Action is an act of administrative choice to give some cases lower enforcement priority than the others.  Under the newly announced Deferred Action program, eligible individuals will be allowed to receive employment authorization cards (EAD) for two years with possible renewals.

In order to be eligible for new Deferred Action program, an individual must meet the following requirements:

• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years before June 15, 2012;
• is present in the United States on June 15, 2012;
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• is 30 years old or younger.  

An individual must wait until they are at least fifteen years old in order to submit an application under the Deferred Action program.  Each application will be reviewed on case-by-case basis.

According to DHS, the immigration laws should not be enforced blindly without consideration of the individual circumstances of each case.  With regard to the group of people who came to the U.S. as minors, deporting them to another country does not make sense as they may not have lived there or even speak the language of that country.   DHS acknowledges that many of these young people may have already contributed to our country through in many different ways.  Therefore prosecutorial discretion is well justified here.

The U.S. Citizenship and Immigration Services (USCIS) will handle the cases of individuals who are not in deportation proceedings.  The U.S. Immigration and Customs and Enforcement (ICE) will review the pending cases in deportation proceedings.  Both agencies have 60 days to begin implementing the program. For individuals who have been granted Deferred Action by either ICE or USCIS, they will be eligible for employment authorization for two years.  The EADs are renewable every two years.

The new program provides similar benefits to those proposed by the Dream Act, a proposal that was not passed by Congress.  It is important to know that the Deferred Action program is not permanent and does NOT confer permanent resident status (green card) or citizenship.  It certainly is NOT an amnesty program.  It is merely part of the DHS’s ongoing efforts to prioritize its immigration cases for prosecution.  The new Deferred Action program can be changed or cancelled at any time.  For example, if a new president is elected in November, he could decide to change or cancel this Deferred Action program.

It is also important to note that the government is not yet taking requests for Deferred Action as of now.  Interested individuals must pay attention to updates from the government and our blog to confirm when they can start submitting applications.