DACA

Deferred Action for Childhood Arrivals 2017 Announcement

On Sept. 5, 2017, the Department of Homeland Security (DHS) initiated the orderly phase out of the program known as Deferred Action for Childhood Arrivals (DACA). DHS will provide a limited, six-month window during which it will consider certain requests for DACA and applications for work authorization, under specific parameters. Read the memorandum from Acting DHS Secretary Elaine Duke for details. 

Next Steps for Phasing Out DACA

All DACA benefits are provided on a two-year basis, so individuals who currently have DACA will be allowed to retain both DACA and their work authorizations (EADs) until they expire.

USCIS will adjudicate, on an individual, case by case basis:

  • Properly filed pending DACA initial requests and associated applications for employment authorization documents (EADs) that have been accepted as of Sept. 5, 2017.
  • Properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of the date of this memorandum, and from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018 that have been accepted as of Oct. 5, 2017.

Individuals who have not submitted an application by Sept. 5, for an initial request under DACA may no longer apply. USCIS will reject all applications for initial requests received after Sept. 5.

Resources

For more information, please read the:

SOURCE: www.uscis.gov/daca2017

IMPORTANT SUMMARY:

  1. If your current DACA status expires on or before March 5, 2018, you MUST file your renewal BEFORE October 5, 2017. Please contact an attorney immediately to begin processing your application.

  2. If you have a pending application for Advance Parole (AP) based on your DACA status, your AP application will be closed and your filing fees should be refunded. If you have an approved AP document, be sure to talk to an attorney BEFORE leaving the country to discuss the benefits and risks of doing so.

Please also see our previous blog post: What do I need to know if the DACA Program Ends? 

WHAT DO I NEED TO KNOW IF THE DACA PROGRAM ENDS?

There are some reports that President Trump may end the Deferred Action for Childhood Arrivals (DACA) program soon. At this time, we do not know when or if the DACA program will be terminated or what the end of the program may look like. For example, will those with DACA continue to be protected from deportation and able to use their work permits until they expire? Or will DACA approvals and work permits be revoked? While the DACA program remains in effect at this time, see the following links for some things to keep in mind should the program end. ENGLISH / SPANISH

Source: www.ilrc.org

Will DACA be ended by the courts?

Readers may remember that Texas and 25 other states sued the federal government in 2015 to stop its implementation of DAPA and expanded DACA, programs announced by President Obama in 2014. The federal judge in Texas, where the case began, issued a nationwide injunction preventing the federal government from moving forward. The injunction was appealed all the way to the U.S. Supreme Court, which deadlocked 4-4 – allowing the injunction to remain in place.

Because the 2015 lawsuit only challenged the 2014 expansion of DACA, it did not affect the original 2012 DACA, and many have been able to obtain DACA or renew previous DACA grants under that program even while that lawsuit was going forward.

Unfortunately, leaders in some of those states want the original 2012 DACA ended as well, and believed President Trump would end the program when he took office. Since he has (so far) refused to do so, the Texas State Attorney General (AG) and nine other Republican State Attorney Generals are now threatening to add the original 2012 DACA program to the 2015 lawsuit if President Trump does not end the program by September 5, 2017.  President Trump has chosen to continue DACA up to this point, but it is impossible to say what he will do in the future. If he does not at least indicate by September 5th that he will end the DACA program, it is likely that the above-listed states will follow through on their threat soon thereafter.

If the AGs follow through on their threat, the fate of DACA may be sealed and it will likely eventually be ended by the courts.  That is because every court where the suit would proceed (US District Court in Texas, US Fifth Circuit Court of Appeals, and U.S Supreme Court), is dominated by conservatives who would likely rule against the program the same way they ruled against the 2014 expansion.  Even pro-immigration legal scholars concur in this analysis.

This strategy was successful for the AGs when they fought against the DAPA and DACA expansion programs in 2015, and the courts that allowed the injunction to stand in that case are the same courts that would now hear the arguments against the original 2012 DACA.

When could DACA end?

That is hard to predict exactly. It is possible, even likely, that DACA filings could end soon after the suit is filed.  That is because it would be filed with the same US District Court judge who issued the first injunction, and it is highly likely that he would issue one for the original 2012 DACA program as well. That would prohibit the federal government from processing DACA applications while the case proceeds through the courts – a process likely to take at least several years.  However, if the judge does not issue a new injunction, the program could continue for many months, or a year or more, before the US Supreme Court finally decides against continuing DACA.

Should someone file a new DACA application, file to renew DACA, or file an application to travel abroad (an application for Advance Parole)?

 In each case the person should contact an experienced immigration attorney to advise on the pros and cons of filing each application based on the facts of their individual case and the status and progress of the court suit. 

In the case of filing an application for Advance Parole, the future benefit of traveling and reentering on Advance Parole is very significant, but only if the person originally entered the United States illegally.  That is because the person would now have a legal entry into the U.S. 

Why is this important? It is important because having entered the U.S. legally gives a person more options if that person later has a way to obtain permanent resident status. For example, if at some time in the future a person were to marry a U.S citizen, the legal reentry on Advance Parole could allow the person to apply for permanent resident status inside the U.S. instead of having to travel abroad to apply for an immigrant visa (also permanent resident status), which would very likely also require the person to ask for a waiver of inadmissibility. Applying for permanent residency without leaving the U.S. means the person would likely not need the waiver, which makes the process faster, less expensive, and less risky.  

Again, you should NOT move forward with filing any of the above applications until AFTER consulting with an experienced immigration attorney.

 

Important Issue for DACA grantees: International Travel on Advance Parole

If you have been granted DACA, you may have thought about traveling outside the US to visit a sick relative or to study abroad.  To leave the US and return, you must be approved for Advance Parole, which is permission to return to the US. 

There is a very significant benefit to traveling abroad and reentering the US on Advance Parole.  Once a person enters on Advance Parole, creating a lawful entry, the person could apply for permanent residency in the U.S. The applicant MUST also have an Immediate Relative (US citizen spouse, parent, or child over 21) to file a petition.  Having a lawful entry into the U.S. would eliminate the need to travel home and obtain an immigrant visa. 

However, you must carefully consider whether the Advance Parole document would be impacted by any decision taken by President Trump to end the DACA program.   

Before travelling on Advance Parole, it is very important to discuss the matter with an immigration attorney.

Oral Arguments on DAPA/Extended DACA Case

On July 10, 2015, the Fifth Circuit Court of Appeals held oral arguments so that attorneys from both sides of the lawsuit could address certain issues (such as whether the states have standing to bring the lawsuit) in person. Oral arguments give the appellate judges the opportunity to ask the lawyers questions that were not answered in the written pleadings, challenge the logic of some of the attorneys’ arguments, and dig further into issues the judges feel were not sufficiently addressed in writing. Oral arguments give the attorneys for each side the opportunity to further explain their positions and to clarify any misunderstandings.

 

Audio of the arguments can be heard here.

 

 

DACA: Three-year work authorization

If you, or someone you know, obtained DACA and Employment Authorization Documents (EADs, “work permits”) valid for three years, this post is for you! 

Due to the injunction issued by Judge Hanen (see previous post dated February 18, 2015), USCIS is recalling certain three-year EADs issued to DACA grantees.  The procedure being followed by USCIS regarding this recall is as follows:

  1. USCIS will send the DACA grantee a notice stating there was an error in the authorized period and instructions as to what will need to be done (see items 2 and 3 below);
  2. USCIS will then send a replacement two-year EAD to DACA grantee;
  3. Once the replacement EAD is received, the DACA grantee MUST send the three-year EAD, along with any three-year approval notices and a copy of the notice (item 1) to USCIS at the following address:

USCIS
ATTN: ACD DACA
P.O. Box 87730
Lincoln, NE 68501-7730

Item 1 on the list above is especially important because it means that the database that records your eligibility for a driver’s license will also be updated. Therefore, even if you have already received a driver’s license for three years, your license will NOT be valid for three years. It will only be valid until the expiration date listed on your two-year EAD. 

Please note that not everyone who obtained a three-year EAD will need to return it. You DO NOT need to return your EAD if it was issued before February 16, 2015, even if it was issued for three years.

You must return your EAD if all of the following are true:

•    You obtained a three-year EAD after the injunction issued on February 16, 2015;
•    You have received a letter from USCIS instructing you to return your three-year EAD; and
•    You have obtained a replacement two-year EAD from USCIS.

 

If all of the above are true in your case, you MUST return your three-year EAD.

Please DO NOT return your three-year EAD unless you have already received a replacement two-year EAD. 

USICS has issued a fact sheet with detailed information. Read it here

More information can be found here:
CLINIC LEGAL - FAQs
Immigration Advocates Clear Questions 

The American Immigration Lawyers Association has also issued a statement explaining these instructions (AILA Doc No. 15070802).

ATTENTION DACA GRANTEES!

 

Tax Information

  • You MUST file taxes.
  • You should use your Social Security Number to file taxes (NOT your ITIN).
  • If you previously filed with an ITIN, consult with a tax professional about the following:
    • Amending up to three prior years of taxes, if you qualify for the Earned Income Tax Credit; and
    • Notifying the IRS that you will no longer use your ITIN. 

Affordable Care Act ("Obamacare")

  • You are NOT eligible for subsidies under Obamacare and CANNOT apply for health insurance through a healthcare exchange website (such as healthcare.gov or kynect.ky.gov). However, you CAN apply for health insurance through your employer or directly from an insurance company.
  • Please consult with a healthcare exchange representative to help you apply for family members in your household that may be eligible for subsidies under Obamacare (if they have legal status). 
  • You are NOT required to have health insurance.
  • If you did not have health insurance in 2014, you do NOT need to pay the penalty. 
  • To avoid the penalty, you must submit IRS Form 8965 (exemption code C).
  • If you have already paid the penalty, please consult a tax professional, as you will probably have to file an amended return to claim your exemption. 

Additional information may be found at United We Dream

UPDATE: New Developments on President Obama’s Executive Action

On February 16, 2015, Judge Andrew S. Hanen of the Federal District Court for the Southern District of Texas issued an injunction, temporarily stopping, President Obama’s executive action announced on November 20, 2014.

In situations like this, it is common to have many questions. Please consider the following:

  • This decision is NOT permanent;

  • The Federal Government has announced that it will appeal the order;

  • At this time, the only applications that are immediately affected are those requesting expanded DACA under the new guidelines. Those who qualify for DACA based on the guidelines announced on June 15, 2012 are NOT affected;

  • DACA applications under the new guidelines will not be accepted by USCIS until such time as Judge’s Hanen’s order is lifted;

  • Numerous immigration attorneys, organizations and even the federal government are confident that DAPA and expanded DACA (under new guidelines) will proceed (see White House statement here);

  • If you have already signed a contract with us for these applications, we will continue working on your cases so as to be prepared to file as soon as that is possible;

  • Our office will continue to meet and work with prospective DACA and DAPA clients – do not hesitate to call and make an appointment!

See news reports:

New York Times Article -- Dealt Setback, Obama Puts off Immigrant Plan

Think Progess Article -- Federal Judge Blocks Obama's Immigration Action at the 11th Hour. Here's Why It Probably Won't Work

United We Dream Article -- A Judge Just Ruled to Halt Immigration Executive Action. Here are 5 Things You Should Know

You can see Judge Hanen's Decision here

 

 

 

President Obama's Announcement (November 20, 2014)

DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA)

On November 20, 2014, President Obama addressed the nation to announce his plans for a new immigration program available to parents of U.S. citizen (USC) or Legal Permanent Resident (LPR) children. President Obama announced a program called Deferred Action for Parental Accountability (DAPA),which will allow millions of undocumented immigrants to obtain work authorizations and to live without fear of deportations. Parents of USC or LPR children, who have been present in the U.S. since January 1, 2010 and who clear a criminal background check will be able to apply for this program. It is unclear at this moment if those who meet all the criteria but have previously been deported qualify. We will update this blog once this question is answered by the authorities. Applications for this program can be submitted approximately 180 days after President Obama's announcement (i.e., on May 19, 2015). We expect much more clarification between now and then as to who is eligible to apply.

CHANGES TO DEFERRED ACTION FOR CHILDHOOLD ARRIVALS (DACA)

As part of President Obama's executive action, the eligibility criteria for Deferred Action for Childhood Arrivals (DACA) has been changed. As a quick review, the eligibility criteria for DACA, as announced on June 15, 2012 was as follows:

The applicant:

  1. Must have been 30 years old or younger as of June 15, 2012;
  2. Must have entered the U.S. before the age of 16;
  3. Must have been continuously present in the U.S. since June 15, 2007;
  4. Must have been present in the U.S. on June 15, 2012;
  5. Must have completed high school or a GED program OR be enrolled in high school or a GED program;
  6. Must not have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors.

President Obama announced that two eligibility criteria will change: first, there will be no age cap for DACA applicants; and second, each applicant must have been continuously present in the U.S. since January 1, 2010. These changes mean that many more undocumented immigrants who entered the U.S. as children will now be able to apply for DACA.

President Obama's address to the nation can be seen here:

http://www.whitehouse.gov/blog/2014/11/20/we-were-strangers-once-too-president-announces-new-steps-immigratio