Visa Lawyer Blog

Articles Posted in Deferred Action and DREAM Act Students

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Flickr: mollyktadams

House Democrats are making a move to help Dreamers achieve permanent residence. A new bill dubbed HR 6, the Dream and Promise Act, seeks to provide undocumented immigrants who came to the United States as children, the opportunity to obtain permanent residence. In addition, the bill includes a proposal that would allow certain types of immigrants fleeing war or natural disasters the opportunity to apply for permanent residence.

The Dream and Promise Act would cancel the removal (also known as “deportation”) of and grant conditional permanent resident (CPR) status to a person who is inadmissible or deportable from the U.S. if the person:

  • has been continuously physically present in the U.S. for at least four years before the date of the bill’s enactment;
  • entered the U.S. before turning 18;
  • (a) has been admitted to a college, university or other higher educational institution; or (b) has earned a high school diploma, GED, or equivalent post-secondary education credential; or (c) is enrolled in a secondary school or education program that assists students in obtaining a high school diploma, GED or similar state-authorized exam, certificate or credential from a career or technical school providing education at the secondary level,or in obtaining a recognized post-secondary credential;
  • provides biometric and biographic data, with alternative procedures available for those with physical impairments;
  • passes a background check;
  • registered for military selective service if required to;
  • pays a fee no greater than $495, though fee exemptions may apply;

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Facing mounting pressure from the American public, the President delivered his last-ditch effort offering what he termed a “compromise” to gain support for his controversial wall and put an end to what has been a long-drawn-out government shutdown.

In Saturday’s White House address, President Trump announced a plan that would extend the temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients also for a three-year period.

In exchange, the President is asking Congress to grant him $800 million dollars in aid for humanitarian purposes, $800 million dollars to invest in drug detection technology to enhance border security, and $5.7 billion dollars for strategic deployment of physical steel barriers along the U.S./Mexico border.

Additionally, the President will use some of this money to hire 2,750 border agents and law enforcement professionals, 75 new immigration judges to reduce backlogs, and to implement a program that will protect migrant children from exploitation and abuse.

House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer rejected the President’s proposal almost immediately.

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This evening the President of the United States delivered his first primetime address from the Oval Office to gain support from the American people to build a border wall along the U.S./Mexico border.

The President’s speech comes 17 days into a partial government shutdown that has left thousands of federal government employees without a paycheck.

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The House Proposes to Extend the E-3 Program to Irish Nationals

On November 20, 2018, the House of Representatives introduced H.R. 7164, a bill proposing to add Ireland to the E-3 nonimmigrant visa program. Currently, the E-3 visa program is available to American employers seeking to hire Australian nationals to perform services in a specialty occupation for a temporary period of time.

The E-3 visa program functions much like the H-1B program. The program is governed by the same labor certification standards that apply to the H-1B visa program, and much of the same evidence is required. The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually for Australian nationals.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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We would like to remind our readers that beginning September 11, 2018, USCIS immigration officers will have the discretion to issue denials without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOIDs).

The new policy was announced in a policy memorandum released during the month of July.

On September 6, 2018, the CIS Ombudsman’s Office provided further details on the new policy:

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Photo by Molly Adams

On Friday August 31, 2018, Texas District Judge Andrew Hanen declined to issue a preliminary injunction that would have put a stop to the DACA program immediately. As we previously reported, the fate of the DACA program now rests in Judge Hanen’s hands, who is currently presiding over a lawsuit filed by the State of Texas along with seven other states (State of Texas, et al., v. the United States of America, et al.). At issue in that case is (1) whether the creation of DACA violated the Constitution (2) whether the DACA program violates the substantive and procedural requirements of the Administrative Procedure Act.

Texas, along with other states, are collectively asking the Court to provide declaratory and injunctive relief temporarily halting the DACA program, as well as a court ruling finding the DACA program unconstitutional. According to Texas, the DACA program is illegal because its creation violated the procedural and substantive aspects of the Administrative Procedure Act. In addition, Texas argues that the program violates the Take Care Clause of the U.S. Constitution.

On Friday, the judge issued a ruling on the States’ collective request for a preliminary injunction to temporarily stop the government from issuing or renewing DACA permits. In response to the States’ request for a preliminary injunction, Judge Hanen wrote a lengthy 117-page opinion drawing on the need to exercise judicial restraint with regard to DACA, “the failure of Congress to act [with regard to DACA] does not bestow legislative authority on either the Executive or Judicial branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States….”

Hanen sealed his opinion with a forceful statement regarding his sentiments toward DACA, “Unfortunately the Judiciary is not the branch of government designed to salvage a program that should have emanated from Congress, or at the very least complied with the APA…This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”

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A federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. The new ruling gives the Trump administration a 20-day deadline to implement the complete restoration of the program or file an appeal. The District Court judge behind the order stated in his ruling that the Trump administration failed to justify its decision to end the DACA program, which protected approximately 800,000 young adults from deportation.

The Trump administration plans to appeal the ruling using the 20-day delay granted by the judge in the ruling. Today the attorney general, Jeff Sessions, issued a statement following the court decision stating that the Trump administration strongly disagrees with the decision adding that, “The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.”

The attorney general claimed that the Obama administration “violated its duty to enforce our immigration laws” by allowing the establishment of the DACA program and the catch and release policy,” that the current administration not only had the authority to withdraw from the DACA program but had a duty to do so. The Trump administration has interpreted recent court decisions contradicting the termination of the DACA program as an improper use of judicial power.

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Federal Judge John Bates of the Federal District Court for the District of Columbia has spoken to protect Dreamers from deportation, where Congress has remained silent. In a Tuesday ruling, Judge Bates called the Department of Homeland Security’s decision to rescind the DACA program “arbitrary and capricious,” and with no sufficient basis to justify rescission of the program, ordered DHS to accept and process new as well as renewal DACA applications.

As part of his opinion Judge Bates vacated the Trump administration’s decision to rescind DACA, for a period of 90 days, giving the Department of Homeland Security an opportunity to explain its decision to rescind the DACA program. If the government fails to adequately explain the grounds for finding the DACA program to be unlawful, DHS must accept and process new and renewal DACA applications. DHS has responded to the ruling in a statement where it vowed to “continue to vigorously defend” its decision to rescind the DACA program and looks “forward to vindicating its position in further litigation.”

This ruling is the third in recent months against the Trump administration’s decision to rescind the DACA program.  Earlier this year, Federal Judges in Brooklyn and San Francisco issued similar rulings to keep the DACA program in place, however the Bates ruling is the first ordering the government to accept new DACA applications.

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President Donald Trump is digging his heels in on DACA, although he is perhaps much more interested in securing $25 billion in funding, to build his long-promised wall between the United States and Mexico. On Friday, Congress voted to pass a $1.3 trillion spending bill, designed to fund the government through the end of fiscal year 2018.

Early on Friday, the President delivered a threatening message to Congress via Twitter, intimating that he would veto the spending bill, because it did not provide any relief to DACA recipients such as a path to citizenship. The President however failed to mention that also absent from the bill, was a promise from Congress to fully fund the President’s border wall.

Hours later, the President spoke to reporters and said that he had decided to sign the spending bill, despite the absence of a bipartisan compromise for Dreamers, because the bill ultimately provided much-needed funding for the military. The President told reporters, “My highest duty is to keep America safe. We need to take care of our military. I say to Congress, I will never sign another bill like this again.”

The President blamed the Democrats for failing to reach a deal with Republicans that would put Dreamers on a path to citizenship tweeting this morning, “DACA was abandoned by the Democrats. Very unfair to them! Would have been tied to desperately needed wall.” The President has vehemently insisted that any legislative action providing relief to Dreamers, must also concede $25 million in funding to his administration to build the border wall.

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