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.  

Challenges to the President's Immigration Reform Plan

President Obama's "immigration accountability executive action,” which includes a series of government acts to reform and change the nation's immigration system, has been challenged by the Republicans and conservatives as being too lenient, unilateral, or outright illegal.  They argue that these actions, especially the expansion of the current Deferred Action for Childhood Arrivals (DACA) program, and the new deferred action program for undocumented parents (DAPA), violate the U.S. Constitution and will encourage a new wave of illegal immigration to the United States.

Politically, the reaction of the Republicans and conservative members of the Congress is understandable.  They need to demonstrate to their constituents that they are doing something to respond the President's executive actions.  In fact, on December 4th, the House of Representatives passed a bill to block President Obama's executive actions.  This bill, however, is more symbolic in nature, as it will not likely be taken up by the Senate, which is still being controlled by Democrats. Further, the President can also exercise his veto power if the bill ever reaches his office.

Similarly, eighteen (18) states filed a lawsuit challenging President Obama’s immigration plan last week.  These states are mostly governed by Republicans.  They also argue that the President does not have the legal authority to take actions to change the immigration policy.  Further, these states argue that the new actions will result in substantial state spending in health care, education and law enforcement.

On the issue of legality, more than 100 law professors and scholars from the nation's law schools including Harvard and Yale have authored a joint letter on November 25, 2014, endorsing the President's DACA and DAPA plans as being within the legal authority of the executive branch of the government of the United States.  In fact, similar executive actions on immigration have been taken before by former U.S. Presidents including Presidents Reagan and George Bush Sr., both Republicans.  The U.S. Supreme Court has also recognized the executive branch's authority and need to exercise discretion in the enforcement of the immigration laws.  See Reno v. American-Arab Anti-Discrimination Committee,  525 U.S. 471 (1999); Arizona v. United States, 132 S. Ct. 2492 (2012). The President's deferred action plan is merely an exercise of his prosecutorial authority; it defers enforcement action for three years but does not grant any permanent legal status to the applicants.

The states' argument that they will have to spend substantial amount of additional social resources under Obama's immigration plan is far from clear cut.  Even under the current law, children are guaranteed a public education from kindergarten through 12th grade, regardless of their immigration status.  This right to education was upheld by the U.S. Supreme Court in the landmark case of Plyler v. Doe in 1982.  Further, certain health care services such as emergency room visits are already available to unauthorized immigrants.

On the issue of law enforcement, the new plan may actually bring about positive changes. The new plan will bring the illegal residents out of the shadow and register them in the system.  These changes will make it easier for police officers to enforce the law and create safer communities.  In fact, mayors from metropolitan cities with large immigrant population such as San Francisco, Los Angeles, Houston, New York, etc., all embrace the President's executive actions.  They believe the new plan will "strengthen [their]cities, keep families together, grow our economies and foster additional community trust in law enforcement and government."

In sum, challenges to President's immigration reform plan will likely continue.  But so far, they represent more like political rebuke than real threats to the plan. 

Q&As on Pres.Obama's new executive immigration plan

President Obama on November 20, 2014, announced an executive plan to reform the current U.S. immigration system.  The following are some questions and answers regarding his plan:

Q: When will the new plan become effective?
A: President Obama's plan is composed of a number of executive actions addressing different aspects of the U.S. immigration policy.  Some will become effective soon while others will be addressed by new regulations and other agency actions.  For examples, the deferred action plan for undocumented parents of U.S. citizens and permanent residents will become effective with 180 days (on about May 18, 2015).  Expansion of deferred action plan for childhood arrival will become effective with 90 days (on about February 18, 2015).

Q: I am a parent of a U.S. citizen or green card holder.  How do I apply for the President's deferred action plan for undocumented parents?
A: The government has not yet announced the details of the application process.  Nobody should be able to help you submit the application right now.  However, you may gather documents and evidence to get ready to file for this benefit.

Q:  How do I get ready to file for President Obama's deferred action for parents?
A:  You can get ready by gathering documentary evidence to prove your identify (e.g., passport, driver's license, birth certificate), your relationship with your child (e.g., his/her birth certificate), your continuous physical presence in the U.S. for the past five years (e.g., rent receipts, employment documents, school documents, utility bills, insurance documents, etc.).  If you haven't file federal income tax returns, you should file them as soon as possible.  You should also consult with the qualified immigration attorney about your particular situation.

Q:  I have a criminal background.  Would that make me ineligible for deferred action?
A:  You should still consult with a qualified immigration attorney if you have a criminal record.

Q: My spouse is an H-1B employee.  Would I be able to obtain employment authorized document (EAD) soon?
A:  Part of President Obama's plan is to give employment authorization to spouses of H-1B workers in the U.S. A proposed regulation was published in May 2014 to issue EAD to H-4 spouses if they are already in the process of applying for lawful permanent status. The final regulation with more details will likely be implemented early next year.

Q: I already have an immigration court case pending. Would I still be qualified for the President's new plan?
A:  It depends on the status of your immigration case.  If you have been ordered deported from the United States or failed to appear in immigration court before, you may not be qualified for the benefits of the new plan.  You should consult with a qualified immigration attorney about your particular situation.

Q: Would I be able to obtain permanent resident status under President Obama's new plan?
A:  The deferred action plans proposed by President Obama provide a temporary protection of three years for qualified individuals from the danger of deportation.  The plan does not offer any direct way for the undocumented foreign nationals to apply for permanent resident status.

Q: If the President's new plan offers only temporary protection, should I wait for something more permanent before I apply?
A:  Although the President's  immigration reform plan only offers temporary protection, there are many advantages to apply. For examples, qualified individuals will be able to obtain government-issued ID document (EAD) to allow them to live and work in the U.S. legally for three (3) years;  and be able to apply for valid driver's licenses and state ID cards.  Most importantly, they will no longer have to live under the fear of deportation.  Extension of the period of protection is also possible, depending on the political situation. 

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.)