Judge Again Finds DACA Program Illegal, Blocks New Applications, Allows Renewals

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Jackson Lewis P.C. © 2021

For more articles on DACA, visit the NLRImmigration section.

Supreme Court of the United States Upholds DACA (Deferred Action for Childhood Arrivals)

In a 5-4 decision written by Chief Justice John Roberts on Department of Homeland Security et al vs. Regents of the University of California, the Supreme Court held that the DACA rescission was improper under the Administrative Procedures Act.

In the decision, Chief Justice Roberts concludes “that the acting secretary violated the [Administrative Procedure Act]” and thus the decision to end the DACA program must be vacated. Today, over 700,000 foreign nationals have availed themselves of the opportunities provided by DACA.

In his opinion, Chief Justice Roberts writes:

“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Chief Justice Roberts was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh filed opinions that concurred with parts of the dissent and majority.

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum creating a non-congressionally authorized administration program that allowed certain individuals who entered the United States as children and met various other requirements, namely lacking current lawful immigration status, to request deferred action for an initial period of up to two years, with the ability to renew thereafter, and eligibility for work authorization. This program became known as DACA – Deferred Action for Childhood Arrivals.

The program has faced continuous constitutional scrutiny since its creation, including the Department of Homeland Security’s order that ended the program in 2017. Lower court rulings enabled the DACA program to continue, ultimately leading to suit being brought before the Supreme Court.

The Supreme Court’s decision is not a final resolution on DACA, but instead rules that the Trump Administration’s total recession of DACA was “arbitrary and capricious” and that the administration failed to give adequate justification for ending the program. This decision keeps the DACA program in place.

The full ruling on the case can be found here.


©2020 Greenberg Traurig, LLP. All rights reserved.

DACA: Updates and Options for Dreamers

This November, the United States Supreme Court is set to hear oral arguments on the case that will decide the fate of the Deferred Action for Childhood Arrivals (DACA) program.[1] This program, established through executive action, has offered a temporary reprieve from removal (deportation) to nearly 800,000 students and young professionals raised in the United States.[2] While the program protects a generation categorically denied opportunity to gain legal status,[3] it is very limited in scope. Remarkably, DACA does not confer any immigration status itself nor offer a separate pathway to any other status including permanent residency.[4]

The idea that someone can be present in the United States without legal status while not unlawfully present is confusing – not only to the general public, but apparently to the Supreme Court. In oral argument for U.S. v. Texas, Chief Justice John Roberts wondered, “I’m sorry, that just so I get that right… Lawfully present does not mean that you’re legally present.”[5] Justice Samuel Alito also asked, “[H]ow can it be lawful to work here but not lawful to be here?”[6] If members of this nation’s highest court struggle with this concept, it is no wonder there is confusion surrounding DACA.

DACA: Benefits and Limitations

The DACA recipients, or “Dreamers,”[*] are in legal limbo: allowed to work in the United States, but with no legal status. DACA recipients are permitted to continue their education, and receive a social security number.[7] In some states, recipients can also apply for a driver’s license.[8] DACA also offers a reprieve from accruing “unlawful presence,” a legal term for time spent in the United States without status as an adult, which can lead to future bars to reentry to the US.[9] However, the deferred action program does not, on its own basis, allow its recipients to apply for a separate status.[10] DACA protections expire every two years, and require subsequent renewal applications.[11]

It is no wonder that Dreamers have been called “the best and brightest young people.”[12] The DACA protections only extend to a group of educated youth that have never been convicted of most categories of crimes.[13] To qualify, an applicant must have arrived to the country under the age of sixteen, attend school or have completed their education, and be under the age of thirty, among other requirements.[14] By the nature of the program, recipients arrived as children and therefore may not have a connection to their country of birth. As a result, many Dreamers are attending universities, building careers, and living their lives in the United States without a guarantee that they can obtain legal status to stay permanently.

DACA is Unique Only in its Limited Scope

Deferred action is a commonly used exercise of prosecutorial discretion.[15] As with many other government actions, officials set enforcement priorities to manage limited resources. In addition, the Department of Homeland Security can grant deferred action on an individual basis at any time.[16] The Dreamers’ immigration standing is also not unique, because, as Chief Justice Roberts and Justice Alito learned, many foreign nationals in the US can work legally but do not have legal status. This includes applicants for adjustment of status to permanent residence, and foreign nationals of countries granted Temporary Protected Status (TPS).[17] Applicants for political asylum are also permitted to work legally in the US after a certain time period while awaiting a final decision on their applications.[18]

The DACA program is part of a long history of executive actions related to immigration. In 1961, the Kennedy Administration established a program to give immigrant visas to Cuban refugees, as well as provide financial help, medical care, and other resettlement services.[19] The program benefitted around one million Cuban Americans.[20] Subsequently, when an influx of both Cubans and Haitians arrived on Florida shores in 1980, most were discretionarily admitted to the country.[21] Several years later, President Reagan announced that immigration standards for 200,000 undocumented Nicaraguans would be eased, and directed the immigration service to “encourage and expedite” their work authorizations.[22] After the 1986 immigration reform bill offered a pathway to residence to many undocumented families, around 100,000 children of those families were shielded from deportation by executive action.[23] In 1990, former President Bush expanded the program by creating an application process for undocumented individuals to stay in the United States and receive work permits.[24] Two consecutive administrations also expanded the TPS status of thousands of Salvadorans and Nicaraguans until they were offered a pathway to permanent residency by law.[25] Within this context, DACA is much less beneficial to eligible foreign nationals than other major executive actions on immigration, because it provides no pathway to any other immigration status and certainly not permanent residence.

The DACA program was designed as a solution to a problem created by more recent changes to immigration law, which were promoted by many of the same immigration restrictionists that now oppose DACA. For most of American history, migrants from Mexico and other countries travelled back and forth across the border for work in the United States, but maintained a primary residence in their home countries.[26] Migration consisted of seasonal flows from Mexico corresponding to the need for agricultural and railroad workers.[27] There was often no need to stay permanently, so workers returned home in the winter.[28] As a result, families often stayed in Central America instead of relocating to the U.S.[29]

During the second half of the 20th century, U.S. law made it difficult to legally migrate from Central America.[30] As a result, it became risky to travel across the border and entire families settled undocumented.[31] While DACA did not fix this legal status discrepancy, it allowed the children of these families to stay and continue their education and careers.

Recent Changes to the DACA Program

In 2017, the Trump Administration attempted to end the DACA program.[32] After several lawsuits were filed to challenge the termination of DACA, injunctions were issued to order the Department of Homeland Security to continue to process DACA renewals and employment authorizations, but the government could refuse new applications.[33] The pending litigation challenges whether the Trump administration acted with proper authority in attempting to end the program, and whether the Court has the authority to review the administration’s decision.[34]

Even if the Supreme Court upholds the Trump Administration’s decision to end the DACA program, there remains a chance that Congress will act to protect Dreamers. An amendment to immigration law would render the pending case moot and take precedence over any Department of Homeland Security administrative decision. Although at least ten iterations of the bill have been introduced, none have passed.[35] This year, the House passed the American Dream and Promise Act which would grant DACA recipients permanent, statutory protections.[36] However, the bill still has to pass the hurdle of a favorable Senate vote.[37]

The situation of Dreamers is that of legal purgatory – with the door shut to legal status and very few options to leave the United States and return with a visa. Legislative action has been stalled for decades and now a conservative Court is poised to hear the case in the coming weeks. Dreamers and activists alike hope the Court will see DACA as a rational response to protect 800,000 young people from the legal conundrum created by U.S. immigration law.

Options for the Future

With the future of the DACA program uncertain, many Dreamers and employers are assessing their options. The following section is an overview of considerations for DACA recipients, who are in a unique and challenging legal position. With each type of visa, there are exceptions and complicating factors, such as criminal convictions, that may affect eligibility. Although immigration law permits waivers of certain conditions, waivers are granted only in narrow circumstances. As a result, each individual should discuss their unique situation with an experienced immigration attorney.

Immigrant Visa Petitions.

There are several types of immigrant visas available for individuals wishing to become permanent residents, including primarily (1) immediate relative petitions, (2) family-based petitions, and (3) employment-based petitions.[38] The first category can be filed by a U.S. citizen spouse, parent, or an adult child (over the age of twenty-one).[39] The second two types of immigrant visas, based on family and employment, each have different subcategories and are subject to numerical annual limits.[40]

Even if a DACA recipient can qualify for an immigrant visa, there are unique issues that may prevent many from receiving the green card. There are two avenues to receive permanent residency: consular processing at a U.S. Consular Post abroad; and adjustment of status while present in the United States.

Adjustment of StatusWhether a DACA recipient can adjust their immigration status to permanent resident depends on the time spent in the United States without legal status, the manner of U.S. entry, and the type of immigration sponsor. As a general rule, Dreamers cannot adjust status with a family-based petition because it requires continuous lawful status.[41] Employment-based petitions are only available if the individual has less than 180 days of unlawful presence.[42] Thankfully, the immediate relative petition allows adjustment to those who have been undocumented for many years.[43] However, like all petitions, the immediate relative petition requires lawful entry to the United States with either a visa or a travel authorization document.[44] Dreamers who marry a U.S. citizen may have other options even without lawful entry, but will want to seek the advice of an immigration attorney.

Consular Processing. The alternative to adjustment of status is applying for an immigrant visa and interviewing at a U.S. embassy. Most DACA recipients will face challenges in this method, as well. Beginning at age eighteen, any person who has spent over 180 days without legal status faces a three year bar to reentry to the United States.[45] This bar increases to ten years after one year of unlawful presence.[46] Therefore, leaving the country for an interview at a U.S. embassy is a practical impossibility for many recipients who have accrued unlawful presence before approval under DACA.

Non-Immigrant Visa Petitions.

There are numerous types of temporary visas. The F-1 student visa, the O-1 extraordinary ability visa, H-1B work visa, and the B visas for tourism and business are all examples.[47] Most DACA recipients face one fundamental challenge to receiving any of these visas: a grant of a temporary status while living in the U.S. requires an existing, valid underlying status. DACA does not confer any non-immigrant status for this purpose.

Thus, Dreamers seeking a temporary visa are in a similar position as those hoping to receive a green card through consular processing. The process requires leaving the United States and reentering with a visa, a path complicated by three-year and ten-year statutory bars. If available, Dreamers may want to pursue a position abroad with their company. In addition, individuals who are eligible may want to consider whether they qualify for Temporary Protected Status (TPS), which would confer the ability to apply for other temporary statuses.

Humanitarian Petitions.

It is worth noting that there are a few pathways in immigration law for humanitarian-based relief, including the special immigrant juvenile visa, asylum, and visas available for survivors of crimes and domestic abuse.[48] These options may present a pathway to permanent residency for DACA recipients, but only for those that qualify and receive a favorable exercise of discretion.

In summary, individuals temporarily protected under DACA should consider alternatives in the coming months before the Supreme Court’s decision. Though the pathway to permanent residency is narrow, there may be a few options available to stay continuously or to work abroad and return after a few years. The most important step is to continue to renew DACA in the meantime. Finally, it is important to consult with an experienced immigration attorney to help navigate the available options.


[*] The name “Dreamers” originated from the name of the legislative act, the Development, Relief, and Education for Alien Minors (DREAM) Act, originally introduced in 2001.


[1] See DHS v. Regents of the Univ. of Calif., 139 S.Ct. 2779 (2019). The case was consolidated with two other lawsuits, Batalla Vidal v. Nielsen and NAACP v. Trump, with oral arguments set for November 12, 2019 and decision expected around June 2020. DACA Litigation Timeline, Nat’l Immigration Law Center, https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last updated Sep. 28, 2019).

[2] Gustavo Lopez & Jens Manuel Krogstad, Key Facts about Unauthorized Immigrants Enrolled in DACA, Pew Research Cent. (Sep. 25, 2017), https://www.pewresearch.org/fact-tank/2017/09/25/key-facts-about-unauthorized-immigrants-enrolled-in-daca/.

[3] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency).

[4] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 3 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdfSee also Frequently Asked Questions, Nat’l Immigration Law Center https://www.nilc.org/issues/daca/faqdeferredactionyouth/ (Last updated Dec. 16, 2016).

[5] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[6] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[7] DACA, Immigration Legal Resource Center, https://www.ilrc.org/daca, (Last visited Oct. 18, 2019).

[8] Immigration Legal Resource Center, Preparing for the Future 15 (2019), https://www.ilrc.org/preparing-future-understanding-rights-and-options-daca-recipients.

[9] Unlawful Presence and Bars to Admissibility, USCIS, https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissi… (Last visited Oct. 18, 2019); Understanding Unlawful Presence Under INA § 212(a)(9)(B) and Waivers of Unlawful Presence, Immigrant Legal resource Center 3 (2019), https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf.

[10] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (“This memorandum confers no substantive right, immigration status or pathway to citizenship.”).

[11] See Id.; The Dream Act, DACA, and Other Policies Designed to Protect Dreamers, American Immigration Council 3 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_dream_act_daca_and_other_policies_designed_to_protect_dreamers.pdf.

[12] Get the Facts on the DREAM Act, The White House President Barack Obama (Dec. 1, 2010), https://obamawhitehouse.archives.gov/blog/2010/12/01/get-facts-dream-actSee also The Dreamers Are a Good Part of America’s Future, The Wall Street Journal (July 25, 2017), https://www.wsj.com/articles/the-dreamers-are-a-good-part-of-americas-future-1501002274Power to the Doers and Dreamers, Unleashing the Best and Brightest, Int’l Business Times (Aug. 16, 2010), https://www.ibtimes.com/power-doers-dreamers-unleashing-best-brightest-193274; Gabrielle Levy, Obama: Trump’s DACA Decision ‘Cast a Shadow’ of Deportation Over ‘Best and Brightest’ U.S. News (Sep. 5, 2017), https://www.usnews.com/news/politics/articles/2017-09-05/obama-trumps-daca-decision-cast-a-shadow-of-deportation-over-best-and-brightest.

[13] U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

[14] Id.

[15] See Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. L. J. 243, 246 (2010)

[16] Id.

[17]Employment Authorization Document, U.S. Citizenship and Immigration Services, https://www.uscis.gov/greencard/employment-authorization-document (Last updated Apr. 5, 2018).

[18] Id.

[19] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999); See also Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/.

[20] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999)

[21] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Julio Capo, The White House Used This Moment as Proof the U.S. Should Cut Immigration, It’s Real History is More Complicated, Time (Aug. 4, 2017), https://time.com/4888381/immigration-act-mariel-boatlift-history/.

[22] Immigration Rules Are Eased for Nicaraguan Exiles in the U.S., New York Times (July 9, 1987), https://www.nytimes.com/1987/07/09/world/immigration-rules-are-eased-for-nicaraguan-exiles-in-us.html.

[23] Am. Immigration Council, Reagan-Bush Family Fairness (Dec. 2014), https://www.americanimmigrationcouncil.org/sites/default/files/research/reagan_bush_family_fairness_final_0.pdf.

[24] Id.

[25] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Nicaraguan Adjustment and Central American Relief Act, 8 C.F.R. § 240.60 (2014).

[26] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency); See also Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population and Dev. Review 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x.; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011)

[27] Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 3 (2011).

[28] Id.

[29] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history

[30] See Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population & Dev. Rev. 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011).

[31] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history.

[32] Michael Shear & Julie Davis, Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sep. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[33] See DACA Litigation Timeline, Nat’l Immigrant Justice Cent., https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last Updated Sep. 28, 2019); See also Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[34] Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[35] Id.

[36] American Dream and Promise Act of 2019, 116th Congress, H.R.6 https://www.congress.gov/bill/116th-congress/house-bill/6.

[37] See Alan Gomez and Ledyard King, House Passes Bill to Protect ‘Dreamers’, but Faces Long Odds in Republican-led Senate, U.S.A. Today (Jun. 4, 2019), https://www.usatoday.com/story/news/politics/2019/06/04/house-passes-bill-dreamers-tps-but-senate-unlikely/1337753001/; Natalie Andrews & Andrew Duehren, House Passes Bill Aimed at Protecting Immigrants Brought Illegally to the U.S. as Children, Wall Street Journal (Jun. 4, 2019), https://www.wsj.com/articles/house-passes-bill-aimed-at-protecting-immigrants-brought-illegally-to-u-s-as-children-11559689659.

[38] See 8. U.S.C. § 1151 (2018).

[39] See 8. U.S.C. § 1151(b)(2)(A)(i) (2018).

[40] See 8. U.S.C. § 1151 (2018).

[41] See 8 C.F.R. §245.1(b)(6) (2018).

[42] Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications, U.S. Citizenship and Immigration Services (July 14, 2008), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdf.

[43] See 8 C.F.R. §245.1(b)(6) (2018).

[44] See 8 C.F.R. §245.1(b)(3) (2018).

[45] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[46] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[47] See 8 U.S.C. § 1101(a)(15) (2018).

[48] See Humanitarian, U.S. Citizenship and Immigration Services https://www.uscis.gov/humanitarian (Last visited Nov. 1, 2019). For additional resources, see Humanitarian Protection, Am. Immigration Council https://www.americanimmigrationcouncil.org/topics/humanitarian-protection (Last visited Nov. 1, 2019).


©1994-2019 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Lauren Watford & the Immigration Practice at Mintz Levin.
For more on DACA/Dreamers, see the National Law Review Immigration law page.

HUD Says “No” to DACA Recipients

For some time the mortgage industry, without success, has asked the US Department of Housing and Urban Development to provide a clear answer to the question of whether Deferred Action for Childhood Arrival (DACA) recipients are eligible for FHA loans.  HUD finally provided a clear answer in responding to an inquiry from Representative Pete Aguilar (D-CA): “DACA recipients remain ineligible for FHA loans.”

HUD policy, currently reflected in HUD Handbook 4000.1, provides that “[n]on-U.S. citizens without lawful residency in the U.S. are not eligible for FHA-insured Mortgages.”  In its letter to Representative Aguilar, HUD addresses the legal status of DACA recipients by referencing statements made by the Department of Homeland Security Secretary when DACA was established:

“In establishing DACA on June 15, 2012, Janet Napolitano, then the Secretary of Homeland Security, made clear that DACA is merely an exercise of ‘prosecutorial discretion’ and ‘confers no substantive right, immigration status or pathway to citizenship.’ Secretary Napolitano further stated that ‘[o]nly Congress, acting through its legislative authority, can confer these rights.’”

We will have to see if HUD’s reliance on the status of DACA recipients to advise that they are not eligible to receive FHA loans prompts Congress to address their immigration status.

 

Copyright © by Ballard Spahr LLP
Learn more about DACA issues on the National Law Review Immigration page.

DACA Program Continues as U.S. Supreme Court Declines to Expedite Consideration of Cases

The “Dreamers” have received another reprieve from the U.S. Supreme Court.

DACA litigation has been in the news since September 2017, when then-Attorney General Jeff Sessions announced the DACA program would be terminated. In response to that announcement, multiple lawsuits were filed in federal courts in California, New York, Maryland, Texas, and the District of Columbia, resulting in multiple nationwide injunctions blocking the termination of the program. Indeed, the injunctions have forced USCIS to continue granting DACA renewals.

According to Vice President Mike Pence, the Trump Administration is looking for a way to prevent U.S. District Courts from imposing nationwide injunctions. In a speech in May, he said these injunctions are “judicial obstruction.” Absent relief from these injunctions, the Administration is attempting to expedite review of pending cases that are blocking its policies.

For instance, the Administration attempted to force the Supreme Court’s early consideration of the DACA cases in early-2018, which the Court rejected. At the end of May 2019, the government again sought to expedite the case by filing a brief urging the Court to decide whether to grant review by the end of this term, i.e., by June 24, 2019. The Administration argued, “The very existence of this pending litigation (and lingering uncertainty) continues to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.” But that argument did not prevail. On June 3, 2019, the Court rejected the Administration’s request.

The Court probably will not even consider reviewing the DACA cases until the fall and, if it grants review, a decision might not come down until sometime in 2020.

For now, the “Dreamers” can continue to renew their status, but they also will have to continue to live with the uncertainty. There is always the possibility that Congress will pass legislation that might provide a permanent solution for the “Dreamers,” but the legislative route has been bumpy. While numerous deals have been proposed regarding a DACA solution, stumbling blocks continue to appear in the form of unacceptable “quid pro quos.” Indeed, DACA was even a pawn in the most recent government shutdown.

Jackson Lewis P.C. © 2019

This post was written by Forrest G. Read IV of Jackson Lewis P.C.

Get updates on Immigration and the Dreamers on our Immigration type of law page.

Recent Developments In Case Law And Policy Applicable To Immigrants And Their Employees

In these turbulent times for immigrants, we would like to signal a few recent developments in case law and policy that apply to immigrants and/or their employers.

1. Deportation and Removal

In the case of Pereira v. Sessions decided on June 21, 2018, the U.S. Supreme Court ruled that individuals with prior deportation orders may now apply to reconsider/ reopen their cases if they were served with a written notice to appear in removal proceedings that did not specify the “time and place at which the removal proceedings will be held”. It is worth noting that most notices to appear served before June 2018 DID NOT SPECIFY the required time and place for the removal proceedings, hence many individuals would be eligible to reopen their removal orders under the Pereira case. The Pereira case would benefit in particular those who have been continuously present in the U.S. for 10 years or longer and have a spouse, child(ren) or parent(s) who are U.S. citizens or permanent residents. To take advantage of the path to legalization that this case offers, it is imperative that you contact our office no later than September 21, 2018, which is the deadline for filing motions to reconsider/ reopen under the Pereira case.

2. Employment-Based Immigration

USCIS announced that it is extending the temporary suspension of premium processing for April 2018 cap-based H-1B petitions and, beginning September 11, 2018, will be expanding this suspension to include ALL H-1B petitions filed at Vermont and California Service Centers (and CT falls under the jurisdiction of the Vermont Service Center) except H-1B petitions for extension of status to continue on with the same employer and certain cap-exempt filings. The suspension is expected to last until February 19, 2019. The practical effects on employers will be felt in the areas of April 2018 cap-subject petitions and H-1B transfers which will now take several months to adjudicate. H-1B employees may be impacted in their ability to travel abroad while the H-1B is still pending and we highly recommend consulting us before any international travel. We advise employers looking to petition for H-1B transfers to use premium processing, if desired, no later than September 10, 2018.

In other employment-based immigration categories we are seeing increased processing times for work permits (EADs) from 3 to 6 months, a much higher incidence of Requests for Evidence (RFEs) on most work visa and green card categories, a higher incidence of fraud investigations on a wide range of cases, and as a consequence a spike in the need for highly skilled immigration counsel to ensure strict compliance with applicable laws and policies.

3. Family-Based and Naturalization

Processing times have increased – in some cases dramatically – for most family-based categories and naturalization cases. For example, in CT the I-751 removal of the condition application now takes 18 months instead of 11-13 months and naturalization cases are currently projected at 8.5 to 19 months instead of the 4-6 months previously.

4. DACA Applications and Advance Parole

Ongoing federal litigation in DACA continues to create confusion with regards to DACA applications, and pending litigation means there will likely be changes to the process in upcoming months. At present, USCIS is not considering first-time filings based on DACA, or requests for Advance Parole based on an approved DACA application. It is, however, processing renewals for those who currently have DACA status, as well as accepting initial DACA applications for those who had DACA status in the past. DACA renewal applications should be filed six months before the expiration of current DACA status so as to minimize the likelihood of having a gap in employment authorization.

In conclusion, we invite you to contact us to discuss and carefully plan the impact that these ever-changing immigration policies may have on your status, international travel, or your ability to hire and retain foreign labor. Please note the above-mentioned deadlines by which to act on your applications/petitions.

© Copyright 2018 Murtha Cullina
This post was written by Dana R. Bucin of Murtha Cullina.

The Four Pillars: Trump’s Immigration Plan

In his first State of the Union address, President Trump described four “pillars” to his immigration plan, with mixed reception. The pillars reinforce his campaign slogan to “Buy American, Hire American” and track with the immigration policy priorities he has previously outlined. These priorities include border security, interior enforcement and a merit-based immigration system.

The first two pillars address building a wall along the Southern border as well as a pathway to citizenship for certain undocumented foreign nationals presently in the United States, including about 800,000 young people (Dreamers) who were granted temporary status through the Deferred Action for Childhood Arrivals (DACA) program, now rescinded by President Trump.

The third pillar would end the diversity visa lottery (DV lottery). This program was established by Congress in 1990 and allocates 50,000 green cards to foreign nationals of countries with historically low U.S. immigration rates. Which countries are eligible can vary from year to year based on government-collected statistics as to how many foreign nationals have immigrated from those countries through other non-DV lottery programs. For example, in FY2018, most African countries were eligible, as were most European countries, except Great Britain. Countries that were not eligible included Pakistan, the Philippines, India, Mexico, Brazil, El Salvador, and Peru. The odds of being chosen are poor. Past data reveals about 14.5 million apply annually.

A common misconception, indeed one articulated by President Trump, is that the DV lottery program “randomly hands out green cards without any regard for skill, merit, or the safety of our people”. In fact, however, DV lottery participants must demonstrate that they meet certain educational or skilled work experience requirements in addition to clearing robust government background and security checks. Those selected in the DV lottery must be screened just like any other green card applicant – including family- and employment-based green card applicants. The process is arduous and can take months to complete. Security screenings include biometrics as well as name and fingerprint checks through multiple interagency government databases to identify potential criminal, national security, terrorism, organized crime, gang and other related issues. Applicants also must attend an in-person interview where they are again screened for potential red flags affecting admissibility.

The fourth pillar addresses family-based immigration and would limit it to immediate family members which include spouses and minor children. Referring to “chain migration”, President Trump stated that “a single immigrant can bring in virtually unlimited numbers of distant relatives.” This misconstrues current immigration law. The United States already limits family-based immigration. Family-based green cards are only available to spouses, children, parents and siblings (for U.S. citizens). Grandparents, aunts, uncles, cousins and other extended family members are ineligible. The number of family-based green cards are limited by annual quotas. For example, siblings of U.S. citizens who filed family-based petitions between 1994 and 2004 are only now current. In other words, the wait is long. Furthermore, sponsors of family-based green card applicants must also demonstrate that they have the financial means to support the intended beneficiary by signing a contract with the government agreeing to reimburse for any means-tested public benefit the beneficiary should receive, until the beneficiary has worked 10 years, becomes a US. citizen, dies or leaves the United States permanently.

U.S. immigration law is complex and a challenge to understand for those who aren’t regularly walking its trenches. For those curious about the Administration’s regulatory agenda, https://resources.regulations.gov/public/custom/jsp/navigation/main.jsp is a good place to start. Those interested in learning more about U.S. immigration facts can also access the American Immigration Council’s resources available at https://americanimmigration council.org/.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson.
More on Immigration at the National Law Review Immigration Page.

Trump Administration Releases Framework for Immigration Deal

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.
Read more immigration news at the National Law Review’s Immigration page.

Trump Administration Issues “Principles” in Exchange for Relief for DACA Recipients

Deferred action for DACA recipients will start to expire in March 2018 and there is still no certainty about what will happen to them.  Amidst legal challenges to the rescission of DACA, the introduction of a number of statutory fixes, and a supposed “deal” between President Trump and Democratic leaders to protect the “Dreamers,” there is now a new twist.  The Trump Administration has announced a list of principles to include in any deal for the Dreamers.  Those principles, some of which derive from the President’s various Executive Orders, include:

  • Construction of a wall across the US southern border;
  • Improve infrastructure and security on the northern border;
  • Eliminate loopholes that make it difficult to return Unaccompanied Alien Children (primarily from Central America) and their families to their home countries;
  • Hire 10,000 immigration agents and 300 Federal prosecutors;
  • Hire 370 Immigration Judges and 1,000 ICE attorneys;
  • Increase scrutiny of asylum petitions and impose penalties for baseless or frivolous claims;
  • Terminate “catch and release” policies;
  • Expand grounds of inadmissibility and deportability;
  • Deny federal aid to sanctuary jurisdictions;
  • Discourage visa overstays by classifying overstays as misdeameanors;
  • Require use of E-Verify by all employers and increase penalties for a pattern or practice of violations;
  • Eliminate extended family “chain migration” and establish a new merit-based green card system; and
  • Eliminate the diversity lottery.

It is not clear whether these principles represent a first offer in a negotiation or if these principles are non-negotiable. Some Democrats in Congress have threatened the possibility of a government shutdown in December if DACA recipients receive no relief. Senator Jeff Flake (R-Ariz.) has pieced together parts of other proposed legislation and introduced what he believes would be a compromise bill, the Border Security and Deferred Action Recipient Relief Act. This Act provides:

  • DACA recipients or other children who have been in the U.S. since 2012 can obtain Conditional Resident Status for 10 years by pursuing vocational or higher education, are gainfully employed or by enlisting in the military. Upon meeting certain conditions, after the 10 years, they will be eligible to apply for Green Cards.
  • $1.6 billion for border security measures: 74 miles of border fortifications and funding to plan for further construction.
  • Construction of border access roads to simplify CBP patrols of the border.
  • Targeting of gangs and cartels for deportations.
This post was written by Forrest G. Read IV of Jackson Lewis P.C. © 2017
For more Immigration legal analysis go to The National Law Review

Impact of the Trump Administration’s Decision to Terminate DACA

On September 5, 2017, Elaine Duke, Acting Secretary of the U.S. Department of Homeland Security (“DHS”), issued a memorandum rescinding the Deferred Action for Childhood Arrivals (“DACA”) program. The DACA program, instituted in 2012 under the Obama administration, defers deportation and provides work authorization for individuals who were brought to the United States as children and who pass criminal and national security background checks. The DACA program was designed to assist individuals who were raised in the United States but who do not possess lawful status in the United States. These individuals are often referred to as “Dreamers.”

Citing a recent 4-4 decision by the U.S. Supreme Court, which in effect allowed a lower court injunction of a program providing similar relief for undocumented parents of U.S. citizens to stand, the Trump Administration determined that the DACA program should end on March 5, 2018. Effectively, this provides Congress with six months to provide a legislative solution for the nearly 800,000 individuals impacted by the DACA program rescission.

For individuals eligible or currently enrolled in the DACA program, this will have the following impact:

  • Currently valid DACA benefits, including Employment Authorization Documents (“EAD”s) and Advance Parole documents (I-131 applications, authorizing beneficiaries of DACA to travel) will remain valid until their expiration. These documents remain subject to termination or revocation under the existing DACA program rules.
  • No new DACA applications (I-821D applications) will be accepted as of September 6, 2017.
  • Currently pending initial DACA applications and extensions will be adjudicated.
  • USCIS will not accept any new advance parole applications where the basis of that application is an approved I-821D.
  • Currently pending advance parole applications will be administratively closed, and I-131 filing fees will be refunded.
  • Individuals whose DACA benefits expire between September 5, 2017 and March 5, 2018 will be allowed to file an extension of their DACA benefits until October 5, 2017. If approved, we anticipate that extensions will be valid for two years, and not end on March 5.
  • U.S. Citizenship and Immigration Services (“USCIS”, the agency that oversees administration of the DACA program) will not affirmatively provide information regarding DACA recipients to U.S. Immigration and Customs Enforcement (“ICE”, the agency in charge of interior immigration law enforcement) or U.S. Customs and Border Protection (“CBP”, the agency in charge of border security) unless the DACA recipient meets existing deportation enforcement guidelines.

Once an individual’s DACA benefits expire, that individual will no longer have work authorization, and his or her deportation will no longer be deferred. This does not mean that individual will be automatically deported by ICE. However, it does mean that the individual will no longer be protected from deportation. In essence, without congressional action, Dreamers will once again become subject to potential removal from the United States.

A lawsuit has already been filed challenging the DACA program’s termination. It is hard to know whether the case will succeed, however. In the meantime, Dreamers plan to press Congress to pass a legislative solution before March 5.

A DHS memorandum outlining rescission of the DACA program is here. An FAQ is here.

 

This post was written by David J. Wilks of Miller Mayer LLP. All Rights Reserved. © Copyright 2013 – 2017
For more Immigration legal analysis go to The National Law Review