Visa Lawyer Blog

Articles Posted in Deferred Action and DREAM Act Students

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Much to our dismay, Congress was unable to pass the DREAM Act, or any comparable legislation to protect Dreamers from deportation, before going into recess for the holidays. During the last few weeks, members of Congress in the House and the Senate have been scrambling to pass a temporary spending bill to avoid a government shutdown. We hoped that during this time Democrats and Republicans would put their differences aside to lay the groundwork for an immigration deal that would solve the DACA problem once and for all. Instead, Republicans in Congress focused on passing a sweeping tax bill that is likely to be signed into law by the President as early as Friday. As a result, discussions about DACA were cast to the wayside, leaving these issues to be dealt with in 2018.

Unfortunately, Congress has now gone into recess and will not reconvene until January 3, 2018. This means that Republicans will have a very busy month in January. As you may recall, the President has given Congress until March 5, 2018 to pass legislation shielding Dreamers from deportation, because that is when DACA enrollment will begin to expire in large numbers. Congress must now work within a very tight deadline to begin DACA negotiations swiftly if they expect to meet the early March deadline. When Congress reconvenes after the holidays, the President will meet with Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan to discuss their legislative priorities for 2018. A DACA solution will undoubtedly be high on their list. Republicans have legislatively been more united than ever, so it is in the GOP’s best interest to resolve the issue by the deadline, instead of prolonging an issue that has been ignored for far too long already.

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As Congress races to avert a government shutdown before December 22, 2017, the momentum is building for members of Congress to include the DREAM Act on one of the government’s spending bills which must be passed before Congress goes into recess for the holidays.

The House and the Senate voted last week to grant the government a two-week extension so that Republicans and Democrats would have enough time to pass a short-term measure that would keep the government funded until January. That two-week extension however expires on December 22nd. This means that members of Congress must quickly negotiate pieces of legislation that must be passed along with a temporary spending bill, before Congress goes into recess for the holidays on December 22, 2017. This scenario has opened a unique window of opportunity for the DREAM Act to be included among pieces of legislation that must be passed before the government goes into recess. Republicans are currently under extreme pressure to keep the government open, and as such must concede and negotiate important issues before December 22nd. While Republicans are focused on passing their tax bill before the recess, the momentum is building for the DREAM Act to be negotiated during this narrow window of time.

As it stands, nearly every Democrat in Congress has thrown their support behind the DREAM Act, while many more Republicans are putting pressure on their party to deal with the issue immediately. Twenty-Four Republicans have already fired off a letter to the speaker of the House, Paul Ryan, asking for the DREAM Act to be passed before the end of the year. Lawmakers, political organizations, and tech leaders are also helping to increase the momentum to get the Act passed once and for all.

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At the end of September, recipients of DACA were in a frenzy to file for a final 2-year renewal of their DACA status. The deadline to file for the final 2-year renewal was October 5th, 2017. Only individuals currently receiving DACA, whose status was to expire before March 5th, were eligible to apply for a final renewal of their status, provided their application was properly filed and received by the United States Citizenship and Immigration Services (USCIS) by October 5, 2017.

Following the October 5, 2017 deadline, USCIS rejected nearly 100 renewal applications, even though the cause for their delay was the fault of the United States Postal Service (USPS). At least 74 of the applications received after the deadline were mailed from the New York area and Chicago. USPS has taken responsibility for these delays, stating that the packages containing the DACA renewal requests were rejected as a result of mail problems in Chicago. Last week, USCIS flatly denied any responsibility for these late petitions, and said that nothing could be done, and that the decision to reject petitions received after the deadline was final.

However, USCIS recently had a change of heart. Yesterday, November 16, 2017, USCIS released a statement notifying affected individuals that USCIS will accept DACA renewal requests from individuals who re-submit their DACA renewal requests, and provide individualized proof that their DACA renewal request was originally mailed to USCIS in a timely manner, and that the cause of the petition’s receipt after the October 5th deadline was the result of USPS mail service error.  

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As of today, lawmakers in Congress have 115 days to pass legislation allowing more than 800,000 undocumented immigrants, known as Dreamers, who were brought to the United States as children, the opportunity to remain in the United States lawfully.

If Congress does not act by the March 5th deadline terminating the DACA program, it is likely that the President will give Congress more time to pass such legislation. The President has reiterated that he wants the solution to come from Congress, and will not act unilaterally to shield Dreamers from deportation.

Attorney General Jeff Sessions has signaled to Congress that the future of DACA remains in their hands, recognizing that they have an “opportunity to do something historic.” Republican politicians have thus far shown their willingness to work with Democrats to pass legislation that would grant Dreamers not only protection from deportation and the ability to reside in the United States lawfully, but an opportunity to obtain citizenship. Notoriously conservative Republican Senator, Roy Blunt, along with others has said that he would be willing to support legislation granting Dreamers a path to citizenship, and said as early as Tuesday that deporting Dreamers to a country they did not grow up in would be “totally unreasonable.”

President Trump of course has said that he does not support legislation that would give Dreamers a path to citizenship, however a majority of Congress could override a Presidential veto should such a piece of legislation come to pass. Legislation to protect Dreamers from deportation would however come with certain conditions. The President, as well as Republicans, are pushing for provisions that would secure funding for the wall to be constructed along the U.S./Mexico border and enhance border security. Republican Congressman Dan Newhouse has said that the consensus among Congress is that “it is the responsibility of Congress, and not the administration to make immigration law.”

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As the March 5th deadline approaches for Congress to pass legislation protecting Dreamers from deportation, new information has emerged providing insights into the President’s plans to shield Dreamers from deportation, should Congress fail to act by the March 5th deadline.

Republican Senator James Lankford recently told the press that if Congress does not act by the March 5th deadline, the President is willing to give lawmakers more time to pass legislation that would create a more permanent solution for DACA recipients to remain lawfully present in the United States.

Although the President has generally been sympathetic to the plight of undocumented immigrants who came to the United States as children, the President has made clear that any legislation that would protect Dreamers from deportation, would not include a path to permanent residency. In addition, the President recently issued a list of demands that must appear on any such legislation in order to receive his support. Some of these demands include Congress’ support for the construction of a border wall along the Southern border, cracking down on illegal immigrants, withdrawing federal funding from sanctuary cities, and cutting back on legal immigration by restricting the family based immigration system. Without these concessions, the President has stated that he will not throw his support behind the bill. It is still unclear how flexible the President’s list of demands will be. Of course, even if the President were to veto a bill that would not meet his demands, Congress can override a presidential veto by a two-thirds vote in the House and Senate.

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Supreme Court Dismisses One of Two Travel Ban Cases

On October 10, 2017, in a one-page order, the U.S. Supreme Court dismissed the Maryland case, Trump, President of U.S., Et Al. v. Int’l Refugee Assistance, Et Al.,  which sought to block a key provision of Executive Order No. 13,780 temporarily suspending the entry of aliens outlined under Section 2(c). The Supreme Court has dismissed the case because the provision at issue expired on September 24, 2017 and no longer presents a “live case or controversy” for the court to resolve. Accordingly, the Supreme Court vacated the judgment and sent the case back to the lower courts to dismiss the case as moot.

However, the Supreme Court did not act to remove the case, Trump, President of U.S., Et Al. v. Hawaii, Et Al., from its docket, in which the state of Hawaii joined by other states, called on the court to issue an injunction, stopping the federal government from enforcing a travel ban on individuals from six Muslim majority countries as well as refugees. The travel ban at issue, in that case, began on June 29, 2017 and expired on September 27, 2017. The refugee provision of the act however will not expire until October 24, 2017. Given the Supreme Court’s dismissal of the Maryland case, it is likely that the Court will also dismiss the Hawaii case once the refugee provision has expired.

On September 24, 2017, the President revised Executive Order No. 13,780 for a third time adding Chad, North Korea, and Venezuela to its travel ban, and removing Sudan. The third revision of the travel ban will go into effect on October 18, 2017. The Supreme Court did not address the administration’s newly revised travel ban in its order.

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President Trump and Democratic leaders met on Thursday in an unexpected meeting to negotiate the future of the now defunct Deferred Action for Childhood Arrivals (DACA) program, a program that allowed undocumented immigrants, who came to the United States as children, the opportunity to apply for employment authorization and obtain “deferred status” to shield them from deportation. During the meeting, the President made clear that any legislation that would protect Dreamers from deportation would need to make important concessions that would fall in line with the President’s hard line stance on immigration, such as enhancing border security along the Southwestern border, and funding the construction of a wall between U.S. and Mexico.

A day after the meeting, the President denied reports that the he had struck a deal with Democratic leaders, Nancy Pelosi and Chuck Schumer, that would exclude the construction of a border wall between the United States and Mexico, after the duo released the following statement implying that such a deal had been made, “We had a very productive meeting at the White House with the President. The discussion focused on DACA. We agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides.”

According to the Trump administration, the President stated during the meeting that he would only support legislation to protect Dreamers from deportation, if that legislation included “massive” border security enhancements.” After the meeting, the President tweeted, “No deal was made last night on DACA. Massive border security would have to be agreed to in exchange for consent. Would be subject to vote.”

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In early August of this year, reports began to emerge indicating that Immigration and Customs Enforcement (ICE) was planning a large-scale nationwide immigration operation, to crack down on undocumented criminals and gang members. The coordinated effort which purported to detain criminals and gang members, known within the agency as “Operation Maga,” was set to begin on September 17th and was expected to continue over a five-day period.

Thanks to an internal memo circulated within the agency, details quickly came to light of the operation. According to an internal memo, ICE had been planning to conduct the nationwide immigration raids since at least mid-August of this year. In addition, law enforcement officials reported that the immigration raids were expected to target 8,400 undocumented immigrations, which according to the internal memo would make Operation Maga, “the largest operation of its kind in the history of ICE.” Officials familiar with the operation reported that while the agency instructed officials to target only persons of interest, including gang members or perpetrators of serious crimes, DACA recipients not suspected of crimes, could inevitably have been detained in the frenzy.

When news outlets began to question ICE regarding the rumored raids, the agency had reported that it was “not able to speculate about potential future targeted enforcement actions.”

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Given the recent termination of the Deferred Action for Childhood Arrivals (DACA) program and the controversy surrounding the immigration system as of late, in this post we address the numerous myths surrounding the DACA program and of immigration law in general. Although there are numerous studies and empirical research debunking the common myths attributed to the immigration system, as well as detailed economic reports published by governmental agencies corroborating the positive effects of immigration, Americans continue to hold a negative perception of immigrants and are increasingly skeptical of the immigration process. In truth, much of these perceptions are perpetuated by the unwillingness of Americans to obtain readily available information on the internet, to discover that the immigration process for individuals who entered the United States illegally is riddled with obstacles. More and more we are seeing Americans rely on news stations to accurately deliver the news and do the work for them. Unfortunately, the best way to understand the immigration process itself is to go straight to the source, and not rely on such sources for information.

The public needs to know the facts to better understand that the average immigrant actually has very few immigration options available to them under the current immigration system.

MYTH #1 It is easy to get a green card under current immigration laws

Most Americans believe that it is relatively easy to get a green card. This cannot be further from the truth. Immigration laws are highly complex and are designed to make it more difficult for extended family members, low-skilled workers, and undocumented immigrants to immigrate to the United States. Under current immigration laws, there are generally only two ways to immigrate to the United States and obtain permanent residency, outside of special immigrant categories specifically reserved for special categories of individuals including: asylees, refugees, certain witnesses of crimes, victims of abuse, and individuals who may qualify for withholding of removal. It is extremely difficult for individuals to qualify for permanent residency under one of these special categories.

Outside of these special categories, foreign nationals may immigrate to the United States and obtain permanent residency, only if they have a qualifying family member (such as a US Citizen or LPR spouse, child, etc.) who may petition for them or if the beneficiary works for a U.S. employer on a valid visa who is willing to sponsor the foreign national by petitioning for their permanent residency.

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This morning, Attorney General Jeff Sessions announced that the Trump administration is ending DACA, a program that began under former President Barack Obama, which allowed undocumented immigrants who came to the United States as children, the opportunity to obtain employment authorization and be shielded from deportation. This decision comes on the heels of swirling rumors regarding the President’s intent to terminate the program. Despite the President’s seemingly sympathetic attitude toward the plight of “Dreamers,” today’s announcement means that the DACA program will be phased out.

Effective immediately, USCIS will not accept new initial requests for DACA, but will allow current DACA recipients with permits expiring between now and March 5, 2018 to apply for a final 2-year renewal of their status and obtain employment authorization.

A conflicted President Donald Trump issued a statement following the announcement in which he defended his decision stating, “in the best interests of our country, and in keeping with the obligations of my office, the Department of Homeland Security will begin an orderly transition and wind-down of DACA, one that provides minimum disruption. While new applications for work permits will not be accepted, all existing work permits will be honored until their date of expiration up to two full years from today. Furthermore, applications already in the pipeline will be processed, as will renewal applications for those facing near-term expiration. This is a gradual process, not a sudden phase out. Permits will not begin to expire for another six months, and will remain active for up to 24 months. Thus, in effect, I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

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