Implications of Executive Action for Family Unity and Retention of DACA Talent for Employers and Individuals

Highlights

  • On June 18, the executive branch announced one of the most significant executive actions affecting U.S. immigration since establishing the Deferred Action for Childhood Arrivals (DACA) program in 2012
  • The family unity action would allow many undocumented spouses of U.S. citizens to obtain green cards in the U.S. without needing to depart the country
  • The DACA provisions would make it easier for some DACA recipients to qualify for a work visa

On June 18, 2024, the Biden administration announced one of the most significant executive actions promoting family unity and streamlining the process for Deferred Action for Childhood Arrivals (DACA) recipients seeking to transition to work visas using existing legal authority.

Family Unity and Parole in Place for the Undocumented Spouses of U.S. Citizens

The executive actions initiate a process that will allow certain non-citizen spouses of U.S. citizens to apply for their green cards without leaving the U.S. Currently, a U.S. citizen can sponsor their non-citizen, foreign-born spouse for permanent residency by filing an I-130 immigration petition for the individual, regardless of their immigration status. Immigrant visas are available in this category without backlogs, unlike many other categories. However, undocumented spouses who didn’t enter the U.S. legally typically don’t qualify under current law to complete the permanent residency process in the U.S. In these situations, the spouse typically must depart from the U.S. to complete the process at a U.S. embassy or consulate abroad, thereby triggering a 10-year penalty to lawful readmission under immigration law unless waived due to hardship to a qualifying relative. This process is lengthy, uncertain and expensive, discouraging many of these families from pursuing these steps.

To provide relief, the Biden administration proposes to use the humanitarian parole authority of the executive branch to place qualifying individuals in a legal “parole,” which would then allow them to apply for adjustment of status. Approximately half a million spouses and stepchildren of U.S. citizens in “mixed-status” households could benefit from this change, if implemented.

The availability of this program, also known as Parole in Place, for qualifying non-citizen spouses will be formalized through a rule-making process and publication in the Federal Register. However, the subsequent announcement by the Department of Homeland Security (DHS) on June 18 included the following specifics for individuals to qualify:

  • Continuously resided in the U.S. for 10 years since June 17, 2014
  • Physically present in the U.S. on June 17, 2024
  • Legally married to a U.S. citizen as of June 17, 2024
  • Entered the U.S. without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status
  • Have not been convicted of any disqualifying criminal offense
  • Do not pose a threat to national security or public safety
  • Merits a favorable exercise of discretion

This program would also include non-citizen children of these spouses (i.e., stepchildren).

All requests will consider the applicant’s previous immigration history, criminal history, the results of background checks, national security, and public safety vetting, and any other relevant information available to or requested by the U.S. Citizenship and Immigration Services.

Employers may stand to benefit from a substantial new group of individuals who will be work authorized and whose statuses could be legalized in the U.S. if this program proceeds.

DACA Recipients and Undocumented College Students

The administration subsequently announced that it is also taking additional steps to facilitate the process for DACA recipients to obtain work visas. DACA was created in 2012 by President Barack Obama as a means for immigrant youth who met certain eligibility requirements to qualify for work authorizations and obtain “deferred action.” While DACA protection has enabled hundreds of thousands of individuals to legally work and live in the U.S., the program has faced considerable uncertainty since 2017, when the Trump administration initially sought to terminate the program but was prevented from doing so in the federal courts.

The program continues to face legal challenges, and additional litigation before the U.S. Supreme Court is very likely. Fundamentally, DACA is not a legal status – the reliance on “deferred action” simply reflects DHS’ decision not to bring immigration removal proceedings against a specific individual. While many DACA recipients and their employers have since sought to transition to a work visa or other legal status that Congress specifically established in the Immigration and Nationality Act (INA), the process for doing so is uncertain, expensive and cumbersome. Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.

Instead, they are required under immigration law to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.

In the coming weeks, the administration is expected to announce additional steps to streamline the availability of d3 waivers. The U.S. Department of State will announce changes to its process for granting such waivers to DACA recipients through updates to the Foreign Affairs Manual, and DHS has indicated that it will adopt the State Department’s policy changes. These steps, if implemented, are very good news for many employers and the DACA recipients that they employ by providing a more efficient, robust and reliable process for transitioning DACA recipients to a more stable and lawful status in the U.S.

USCIS to Accept Expanded Deferred Action for Childhood Arrivals Applications Starting February 18, 2015

Jackson Lewis P.C.

President Barack Obama’s November 20, 2014, Executive Order addressed many significant issues of immigration law and allowed more individuals to qualify under the Deferred Action for Childhood Arrivals program. Consequently, on January 29, 2015, the U.S. Citizenship and Immigration Service (USCIS) announced that it will start accepting applications for expanded DACA beginning on February 18, 2015.  To be eligible to apply for expanded DACA, an applicant must be in the U.S. without lawful status, have entered the U.S. before his 16th birthday, and meet certain other criteria.

In the spring of 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum on the new Deferred Action for Childhood Arrivals program as a measure of relief to “Dreamers” when the DREAM Act failed to pass in Congress. Since 2012, DACA has allowed thousands of young people to obtain work authorization and offered safety from deportation.

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USCIS Releases Deferred Action for Childhood Arrivals (DACA) Statistics

GT Law

USCIS has released statistics collected from August 15, 2012, to November 15, 2012, regarding cases filed under President Obama’s Deferred Action for Childhood Arrivals (DACA) initiative. According to the figures, a total of 298,834 DACA requests have been accepted for processing. Of those cases, 53,273 requests have already been approved, and 124,572 requests are currently being reviewed by U.S. Citizenship and Immigration Services (USCIS).

The top 10 countries of origin for DACA applicants are: Mexico, El Salvador, Honduras, Guatemala, Peru, South Korea, Brazil, Colombia, Ecuador and the Philippines.

The top 10 states in which DACA applicants reside are: California, Texas, New York, Florida, Illinois, North Carolina, Arizona, New Jersey, Georgia and Virginia.

The statistics also indicate that USCIS received the most filings in September and October, and that filings decreased by more than 50 percent in November.

©2012 Greenberg Traurig, LLP