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

What the Demise of DACA Means for Employers

Absent congressional action, the Trump administration’s decision to wind down the DACA program will end the work authorization of DACA beneficiaries.

In a decision announced earlier today by Attorney General Jeff Sessions, the Trump administration rescinded the memorandum that created the Deferred Action for Childhood Arrivals (DACA) program. Concurrently, the Department of Homeland Security (DHS) announced that US Citizenship and Immigration Services (USCIS) will begin a six-month winding-down of the DACA program, which was created in 2012 and through which approximately 800,000 beneficiaries have qualified for employment authorization in the United States.

According to today’s announcements, effective immediately USCIS will no longer accept new or initial applications for DACA benefits, which includes renewable two-year work permits. Applications already received and awaiting adjudication will be reviewed on a case-by-case basis. Individuals who have work permits that will expire prior to March 5, 2018 may file for a two-year extension of their current work authorizations, provided that they do so by October 5, 2017. Individuals with work permits set to expire after March 5, 2018 will not be permitted to extend their employment authorizations and will lose employment eligibility when their current permits expire. Accordingly, all DACA beneficiaries will be without employment authorization by March 5, 2020.

Background

Former US President Barack Obama announced the creation of DACA in June 2012 to remove the threat of deportation for and to provide temporary employment authorization to individuals who were brought to the United States as children and who either entered unlawfully or overstayed their periods of admission. Eligibility for DACA benefits was available to any individual who at the time could show that he or she

  • was under the age of 31 as of June 15, 2012;

  • came to the United States before reaching his/her 16th birthday;

  • had continuously resided in the United States from June 15, 2007 through the present time;

  • was physically present in the United States on June 15, 2012 and at the time of making his/her request for consideration of deferred action with USCIS;

  • had no lawful status on June 15, 2012;

  • was currently in school, had graduated, or had obtained a certificate of completion from high school, had obtained a General Educational Development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

  • had not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.

At the time, the Obama administration described the implementation of DACA as a response to congressional failure to pass the Dream Act, which would have provided a path to residency and citizenship for eligible individuals. Proponents of the DACA policy described it as a legitimate exercise of executive branch prosecutorial discretion. Critics described DACA as an unconstitutional overreach of executive authority. The decision by the Trump administration to rescind and wind down DACA now shifts attention back to Congress, where debate concerning so-called “Dreamers” is already part of a larger discussion involving overall immigration limits, the border wall, E-Verify, and other immigration-related issues. Whether Congress will create and pass legislation that provides for continued employment eligibility for DACA beneficiaries is uncertain, as is the question of whether President Donald Trump would sign any such legislation.

What Employers Need to Know

Individuals who have employment authorization based on DACA benefits remain employment authorized until the expiration of their employment authorization documents (EAD). Employers who properly completed Form I-9, Employment Eligibility Verification, at the time of hire will have on file for any DACA beneficiaries the Form I-9 wherein Section 1 indicates that the employee has temporary employment eligibility that expires on the indicated date. As with any other employee who indicates that s/he is a foreign national with temporary employment eligibility, the employer is under an obligation to reverify that individual’s employment authorization by completing Section 3 of Form I-9 in accordance with the guidance in the USCIS Handbook for Employers M-274. Individuals who are unable to provide evidence of their continued employment eligibility may no longer be employed.

Employers are not required to take any other preemptive action with respect to employees who are DACA beneficiaries as their employment authorization continues through the validity date of their EADs. However, for purposes of planning and contingencies, employers may wish to determine who among their workforce is currently employed pursuant to DACA benefits by reviewing Forms I-9 already on file and photocopies already on file of any EAD that was presented and photocopied at the time of Form I-9 completion. An individual whose work authorization is based on DACA benefits will have an EAD that reflects employment eligibility based on Category C33. As a general rule, employers should not take additional measures to affirmatively identify DACA beneficiaries in their workforce, and should consult employment or immigration counsel to address any questions or concerns in this regard.

In addition, DACA beneficiaries who previously received Advance Parole documents that permitted international travel should consult with counsel prior to using a facially valid Advance Parole document for travel. US Customs and Border Protection (CBP) retains the authority to determine the admissibility of any person presenting at the border. Further, USCIS may terminate or revoke Advance Parole at any time.

This post was written by Eric S. Bord of Morgan, Lewis & Bockius LLP. All Rights Reserved  Copyright © 2017

DACA Program to Be Phased Out

Today, the Trump Administration announced rescission of the Obama Administration’s 2012 Executive Order which created the Deferred Action for Childhood Arrivals (DACA) program. As of March 5, 2018, DACA will fully end with many questions yet to be answered.

DACA has benefitted approximately 800,000 recipients, who came to the U.S. before the age of sixteen and hold no valid immigration status, by granting them temporary work authorization and relief from deportation.  Through the program, beneficiaries have gone on to become productive members of communities, contributing to the economy by attending college, buying houses and cars, and obtaining better paying jobs.

What We Know:

  • The U.S. Citizenship & Immigration Services (USCIS) will immediately halt acceptance of new DACA applications while “orderly winding down” the program for existing DACA recipients.

  • Current DACA recipients with permits that expire before March 5, 2018 may apply for a renewal by October 5, 2017.

  • Some DACA recipients could lose work authorization as early as March 6, 2018, while others may continue to use the program over the next two years.

  • No specific guidance will be issued to DHS agents to shield young undocumented immigrants from deportation.

What Is Unclear:

  • Whether and how quickly Immigration & Customs Enforcement will take enforcement action to remove DACA recipients who have disclosed personal information in order to obtain a DACA benefit.

  • Whether Congress will be able to pass a legislative solution within the next six months.  Much will depend on DACA proponents’ ability to mobilize and advocate some form of relief.

  • Whether those granted Advance Parole pursuant to DACA will be permitted to return to the U.S. once DACA ends.  Having Advance Parole does not guarantee admission to the U.S., and the U.S. Department of Homeland Security may revoke or terminate it at any time.

Other Possible Forms of Relief:

In lieu of federal legislation, other forms of relief may be available.  Current DACA recipients and undocumented immigrants may want to explore eligibility for:

  • Asylum;

  • A temporary visa as a victim of a specific crime;

  • Proof of existing U.S. citizenship or noncitizen nationality; and

  • Lawful permanent residence.  Potential applicants include:

    • Individuals whose last entry to the US was after inspection and admission or parole by U.S. Customs & Border Protection (CBP) and who have an immigrant visa immediately available;

    • Certain individuals who are beneficiaries of visa petitions filed by family members or employers on or before April 30, 2001 and who have an immigrant visa immediately available;

    • Certain spouses, children and parents of U.S. citizens or green card holders who have been subject to battery or extreme cruelty by a U.S. citizen or green card holder family member, even if the individual entered without being inspected and admitted by CBP; and

    • Certain unmarried individuals under 21 where a juvenile court has found that the child’s reunification with his or her parent(s) is not viable due to abuse, neglect, abandonment or a similar basis under state law, even if the individual entered without being inspected and admitted by CBP.

Additional guidance is expected in the coming days and weeks. Stay tuned for further updates.

This post was written by Jennifer Cory of Womble Carlyle Sandridge & Rice, PLLC. Copyright © 2017 All Rights Reserved.

For more Immigration legal news, go to The National Law Review

Trump to End DACA Program?

Indications are that President Donald Trump likely will end the DACA (Deferred Action for Childhood Arrivals) program while signaling the Administration’s willingness to work with Congress on an alternative program. Vice President Mike Pence, speaking in Texas, noted, “President Trump has said all along that he’s giving very careful consideration to that issue and that when he makes it he’ll make it with, as he likes to say, ‘big heart’.”

Since 2012, close to 800,000 people brought to U.S. illegally as children have been allowed to remain in this country with work authorization – their deportations having been “deferred.” Eliminating DACA was a staple of Trump’s campaign, but, once he became President, he indicated that it would be a hard decision to make and even noted that the “dreamers” “should ‘rest easy’ about his immigration policies.” The Administration’s decision on whether to discontinue DACA has been made more urgent by a number of Republican attorneys general and the Texas Governor’s announcement that they will ask a federal judge to rule on the legality of DACA by September 5 if the President does not announce he is ending the program.

President Barack Obama put DACA into place by way of an executive order as a temporary measure when Congress failed to enact immigration reform that would protect these individuals because, he believed, “It [was]. . . the right thing to do.”  Ending DACA likely will mean that new applications for status and work authorization will not be accepted and existing authorizations will not be renewed once they expire.

Hundreds of tech and business leaders sent a letter to the President and Congressional leaders expressing their support for DACA. It said, in part:

All DACA recipients grew up in America, registered with our government, submitted to extensive background checks, and are diligently giving back to our communities and paying income taxes. More than 97 percent are in school or in the workforce, 5 percent started their own business, 65 percent have purchased a vehicle, and 16 percent have purchased their first home. At least 72 percent of the top 25 Fortune 500 companies count DACA recipients among their employees.

Senator Orrin Hatch (R-Utah), who supports tougher immigration enforcement, tweeted that he has “urged the President not to rescind DACA . . . .” Speaker Paul Ryan (R-Wis.) has done the same.

Should DACA be rescinded, it would be up to Congress, working with the Administration, to agree upon legislation to provide legal status to these individuals.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more legal analysis go to The National Law Review

Federal Immigration Resources Assisting in Hurricane Response in Texas

U.S. Customs and Border Protection (CBP) is deploying staff and equipment for search and rescue efforts and to work at local, state, and federal emergency operations centers in Texas in response to Hurricane Harvey.

Hurricane Harvey hit Texas just as the state’s plan to outlaw sanctuary cities is about to go into effect.  Texas also has joined other states in threatening to sue President Donald Trump if he does not phase out DACA starting on September 5th.

Some of Houston’s more than 500,000 undocumented immigrants reportedly are afraid to seek shelter, fearing deportation.

To encourage undocumented workers in need of assistance to come into shelters, FEMA issued a statement, “Hurricane Harvey Rumor Control,” asking “all persons to follow the guidance of local officials and seek shelter regardless of their immigration status.”

ICE and CBP explained that:

It is not conducting immigration enforcement at relief sites such as shelters or food banks. In the rare instance where local law enforcement informs ICE of a serious criminal alien at a relief site that presents a public safety threat, ICE will make a determination on a case-by-case basis about the appropriate enforcement actions.

In an effort to assuage fears, the Mayor of Houston has offered to personally represent any individual facing deportation after seeking disaster relief.

In the meantime:

  • 50 CBP agents are staffing a U.S. Coast Guard Emergency Operations Center in Robstown, Texas

  • CBP is providing assistance to border patrol agents in Corpus Christi

  • CBP aircraft from Tucson are in Texas, along with 12 aircrew members, 5 support personnel and 3 agents certified in swift-water rescues

  • CBP’s Air and Marine Operations sent 4 hoist-capable Blackhawks to Houston to help with rescues

  • 50 Tucson area Special Operations Detachments agents are supporting public safety operations

Once the immediate danger subsides, workers will be needed to participate in the billion-dollar rebuilding effort. “Eduardo Canales, director of the South Texas Human Rights Center, said the state is at risk of losing much-needed low-wage workers – cleaners, cooks, carpenters and landscapers – who because of the crackdown may not stick around to help Texas communities recover from the storm.” Even before the hurricane, there was concern that undocumented workers would be leaving the state because of perceived anti-immigrant sentiment.

Beyond the emergency rescue and relief efforts, international trade and travel also has been affected and CBP is coordinating with the U.S. Coast Guard and port authorities to resume operations as soon as possible.

This post was written by Meredith K. Stewart of Jackson Lewis P.C. © 2017

For more legal analysis go to The National Law Review

Supreme Court Tie Blocks Expansion of DACA and Creation of DAPA

DACA DAPA Supreme Court ruling
Law concept for immigration reform, with a wooden court gavel and a plaque that reads immigration.

Disappointing many, the U.S. Supreme Court has tied 4-4 in a case appealing a nationwide injunction on the Obama Administration’s executive action expanding the Deferred Action for Childhood Arrivals (DACA) and creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. United States v. Texas, No. 15-674 (June 23, 2016).

The eagerly anticipated decision will have a far-reaching and adverse impact to millions of undocumented immigrants. The Supreme Court deadlock upheld the appeals court ruling and continues to block programs. The effect of the decision means that up to five million undocumented immigrants may not be allowed legal work authorization in the United States or be protected from deportation.

The Obama Administration utilized executive action to create DACA in 2012. Under DACA, certain undocumented immigrants who arrived as minors were able to defer deportation and receive employment authorization. The Administration expanded DACA and introduced DAPA in 2014 with further executive action. The DACA expansion would have increased the period of employment authorization for DACA beneficiaries to three years, instead of two. DAPA would have allowed parents of U.S. citizens or lawful permanent residents (green card holders) to apply for deferred deportation and employment authorization.

In February 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas entered a preliminary injunction, blocking the 2014 DACA expansion and DAPA creation. The U.S. Circuit Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the lower court’s injunction. The Obama Administration appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court’s decision strongly indicates that executive action on immigration on a widespread basis may be difficult in the future and any chance of immigration reform may not be possible without Congressional involvement. It also indicates that immigration will continue to be a high priority in the upcoming Presidential and Congressional elections.

Jackson Lewis P.C. © 2016