Posts Tagged ‘DACA’

DACA Continues For Some, As Litigation Proceeds

Wednesday, November 14th, 2018 by W. Scott Railton

“What is the status of DACA?,” I am asked. Here it is:

In brief, the Trump Administration took steps to cancel the program on September 5th, 2017, of its own volition and ostensibly due to pressure from certain states litigating the program’s legality. Several lawsuits immediately sought to enjoin (halt) the Administration, and have been successful to date.  The program continues during the litigation, under restricted terms. New applications are not accepted, but extensions and reinstatments may be filed. Full details farther below, from USCIS.

As to the on-going litigation:

The Ninth Circuit case–which is the jurisdiction of the West Coast–is called Regents of the University of California v. Department of Homeland Security.  On November 8th, 2018, the Ninth Circuit upheld the preliminary injunction of the Administration’s order to cancel the program, finding that the Plaintiffs are likely to prevail on the claim that the cancellation of the program is arbitrary and capricious. Similar cases are pending in the Second Circuit (Battala Vidal v. Nielsen) and the D.C. Circuit (NAACP v. Trump).

On November 6th, 2018, the U.S. Department of Justice made a formal request to the U.S. Supreme Court that it take all these cases on certiorari, and resolve the issues surrounding DACA.  Typically, the Supreme Court will take a case where there is a disagreement between the Circuits, but so far, the cases are still pending in the Circuits, albeit with the temporary injunction upheld. It is unusual for the DOJ to request an earlier hearing, and it would be unusual for the Supreme Court to do so, but the rules do allow it do so in exceptional circumstances.  The Supreme Court can be a bit mysterious in the way it decides as an institution to hear or case or not. However, it is likely they will consider the matter of hearing the cases early when the justice meet in the new year, and if they decide to do so, we will likely hear on January 7th, 2018.  If I had to guess, I think the Supreme Court will let the Circuits handle the matter in typical fashion.

In the meantime, persons who have been granted DACA may apply for extensions. This is not a guarantee that the extension will be granted, as each case is decided on its merits. Additionally, persons who have previously had DACA but have had it lapse may apply again. More information on applying is available at , and I’ve pasted USCIS’s advisory below. Various clinics are also available to assist with the applications, through organizations such as Northwest Rights Immigrant Project. Additional sources of information include the NWIRP, the National Immigration Law Center, and the Immigrant Legal Resource Center.

Below is USCIS’s statement regarding DACA, based on current litigation:

Feb. 14, 2018, Update:  USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. The scope of the Feb. 13 preliminary injunction issued in the Eastern District of New York is the same as the Jan. 9 preliminary injunction issued in the Northern District of California. Unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017, until further notice.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your most recent DACA grant was previously terminated, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but you may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF)



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A DREAM Deferred: DACA Canceled, Time for Congress to Act

Tuesday, September 5th, 2017 by W. Scott Railton

Today the Trump Administration announced the cancellation of the Deferred Action for Childhood Arrivals (DACA) program, via Attorney General Jeff Sessions, a noted opponent of the program. Make no mistake—this was not the Administration’s only option. The Administration could’ve worked with Congress to get a law passed, without adding so much fear into the lives of immigrant families.

The AG issued a memorandum which describes the litigation history related to the program, and which concludes that the DACA program “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.”

The threat of legal challenge by 10 states spurred action by the Administration, and highlights once again the divide among the States that confronts the U.S. on this and other issues.

The ACLU and many other immigrant rights groups have unsurprisingly come out in opposition to this action. The ACLU has said the Administration has turned the Dreamers into pawns in the immigration reform debate. Former President Obama even came out publicly against the measure, describing it as “cruel” and “self-defeating.”

While the program was never meant to be permanent, now the pressure is placed squarely on Congress to “get the job done.” This is worrisome, as the debate has already begun to shift from focusing on the Dreamers as persons, to cutting deals concerning other issues, such as border wall financing. I can remember visiting my Representative’s office in 2001–yes, over 16 years ago, advocating for Congress to pass a bill for the DREAMers.

These politics miss so much—the innocence of persons brought here by their parents, the investment America has made in these young people, the potential harm to employers and families, the trust of a community already in fear. I have great faith in the advocacy of the DREAMers–rarely have I seen such an effective interest group. Hopefully Congress will act. Hopefully…

Here’s how the Administration has said it will handle applications going forward:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
  • Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.


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Trump’s Immigration Reforms, Speculatively

Friday, November 11th, 2016 by W. Scott Railton

President-Elect Trump says, “We’re going to look very strongly at immigration.” Immigration and border security were cornerstone issues of his campaign. The Republicans have majorities in the Senate and the House, and he has the ability to appoint at least one Supreme Court judge immediately. The path seems pretty clear for major immigration reforms.

We’ve been receiving client queries, understandably concerned. I think we have to anticipate some pretty big changes, most of which will restrict immigration. Some of these changes may come very early in the administration, while others will take some time.

Here are a few thoughts:

• The Deferred Action for Childhood Arrivals (DACA) program is in jeopardy. This is a program created by the Obama administration without Congressional approval. Trump has threatened to undo many executive orders, and this program will receive scrutiny. Each case has to be evaluated on its own, but non-profit organizations which we respect are advising, generally, to not file new cases for DACA benefits, not travel on advance parole, and consider renewal applications on a case-by-case basis.

• NAFTA TN categories may receive new scrutiny. Trump was very, very critical of NAFTA during his campaign. NAFTA includes provisions for the TN work authorization for certain professions. There is some discussion among experts that even if NAFTA is scrapped, a Canadian Trade Agreement would be possible. Canada has already expressed interest in re-negotiations and improving the terms of the trade deal. From my perspective, there is much room to improve upon the TN schedule of professions, but HR departments and employers would be harmed by doing away with the category. For example, lots of hospitals take advantage of the RN category.

• Expect changes to the H-1B Specialty Occupation program. Trump’s team of advisors have been critical of this program for a long time. I imagine they’ll raise filing fees and/or cut quota numbers; heighten compliance measures; and perhaps introduce a soft labor market test. It might take some time to do this, but legislation of this sort is already drafted.

• Executive Orders issued concerning immigration may be stricken on “Day 1,” according to Trump. Countervailing order may be issued in some cases.

• There will likely be proposals to revise the immigrant visa quota system, with a greater emphasis on merit and employment based immigration, as opposed to family-based immigration.

• Some sort of wall on the southern border will be proposed. A hallmark of Trump’s campaign was that he would build a wall, and Mexico would pay for it. Cost of the border security measures will be the issue, and it will likely be cash-grab for defense contractors.

• A repeal of the Affordable Care Act may impact some immigrants. Any extension of government aid to immigrants will likely be curtailed.

• Electronic work authorization verification (E.g. E-Verify) will be first encouraged, perhaps through incentives, and required after legislation passes.

• Various temporary work authorization programs may be limited or cut (e.g. Temporary Protected Status, H-4 work authorization, temporary work authorization while applications are pending). Regulations related to these programs may be changed relatively quickly via emergency processes.

• Immigration Court proceedings may be streamlined, as far as the administration can get away with, similar to how things were after 9/11.

• Many immigrant advocacy groups are publishing advisories. We like the Northwest Immigrant Rights Project and their work. The National Immigration Law Center is another good organization.

• Senator Mitch McConnell said this week that immigration discussions will be conducted behind closed doors, and then presumably pushed through Congress. The Center for Immigration Studies is a well-known think-tank in favor of reducing immigration, and has published various ideas on how to do so. They have been waiting a long time to help re-write U.S. immigration law, and this seems to be their time.

U.S. immigration is what we do. We will of course be following developments closely, periodically posting here, and writing and speaking elsewhere on the subject. Now is a time when employers really want to pay close attention to potential changes in the law, and make themselves heard when necessary. Changes will have both intended and unintended consequences, and may come fast. Now is also a time to consider whether employer compliance with immigration law is in good shape. We can help.

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Deferred Action for Childhood Arrivals Program Set to Commence

Tuesday, August 14th, 2012 by W. Scott Railton

The Department of Homeland Security will begin receiving deferred action applications for certain childhood arrivals on August 15th, presuming the forms have been approved by OMB. The program, announced on June 15th, is a programmatic exercise of prosecutorial discretion by the U.S. government for young persons who entered without status or who are now out of status.

The program will go a long way towards removing the day-to-day fear of deportation that as many as 1.7 million young people in the United States have to live with, while also offering these young persons work authorization and opportunity.

The basic requirements for eligibility are that a person:

1.) Came to the United Stat4es before reaching their 16th birthday

2.) Has continuously resided in the United States since June 15, 2007, up to present time

3.) Were under the age of 31 as of June 15, 2012

4.) Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012

5.) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained your G.E.D., or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States

6.) Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat

7.) Were present in the United Sates on June 15, 2012, and at the time of making the request for consideration of deferred action.

More details on eligibility can be found at

While the government envisions an application process that will be relatively simple for the typical petitioner, there is potential for adverse action against an applicant, particularly if there is any misrepresentation in the application or if there is a disqualifying criminal history.

Any young person considering application should review the whole of the program carefully, and seek out assistance if necessary. USCIS says there is no right of appeal to a denied application, though a denial will not prohibit the payment of a new fee and submission of a new application. Any past criminality in particular merits very close examination, prior to application.

It is possible that the implementation of the deferred action program will affect timelines for other types of applications. USCIS has significantly increased staffing in anticipation of the 1 million-plus applications that it will receive. However, historically, programs like this have created delays for other types of application adjudications. We’ll just have to wait and see. I’m sure the U.S. Government is taking steps to try to avoid this possibility.

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