This is a follow up to a prior blog post from April. In that case, a federal judge ruled that DACA had to be restored but also stayed that decision 90 days to allow the government to respond. The government did respond, but the arguments were rejected by the judge who has now ruled that the full DACA program must be restored. However, the implementation of that ruling is delayed until August 23, 2018 to allow the government to appeal. Stayed tuned! By the end of this month, it is possible that the full DACA program may be restored. If so, if you need assistance in the preparation and filing of your DACA applications, do not hesitate to contact our office.
A Federal judge has ruled that the U.S. government may have to accept new DACA applications. The ruling essentially states that the decision to end DACA in the first place was arbitrary. However, the Judge gave the Government 90 days to file a response. Stayed tuned.
USCIS has implemented a new policy relating to Advance Parole. The new policy relates to only two situations:
1. Persons holding H, L or K visas are not affected by the new policy in that they are not required to obtain Advance Parole before leaving the U.S., if they have an adjustment of status application pending. However, these visa holders have the option of obtaining advance parole. The new policy will therefore affect these new applicants if they do apply for Advance Parole but leave the U.S. while the advance parole application is pending. The advance parole application will be considered abandoned and will be denied. In that situation, these applicants will have to enter on their valid H, L or K visas.
2. Persons that have valid advance parole, pursuant to a pending adjustment application can travel with that valid advance parole. However, if they have also filed to renew their advance parole, traveling outside the U.S. will be considered an abandonment of the pending advance parole.
The rationale for the policy change is not clear; however, clients and applicants for advance parole should be aware of the changes.
It is great news to hear that the Trump administration will allow the DACA program to continue. The DACA program allows “Dreamers” who were brought in as children to apply for a “deferred action” of their immigration status and apply for a work permit. If you have any questions about applying for this program, don’t hesitate to contact me. I know there is a lot of misinformation out there, and the only way to know whether you can apply for DACA and receive a work permit is to ask. Many people also don’t realize that there are benefits to having DACA status, especially if they entered the country illegally. An individual with DACA can, under the right circumstances, apply for advance parole, which allows them to leave the country temporarily for business, school, or humanitarian reasons. Upon returning, the individual is “admitted” into the country, which is of great benefit if the applicant later can adjust status (i.e., apply for a “green card”).
I have been receiving many calls and emails from concerned clients regarding the effect that the new president-elect will have or might have on their immigration cases. I can only speculate on what might happen, but I will share my opinion. I believe that Mr. Trump stumbled into his candidacy. What I mean by this is that when he started saying the outrageous things he said on the campaign trail, a certain segment of the American public responded favorably. Mr. Trump noticed this and proceeded to double-down on this type of rhetoric. It got him the nomination and it got him the presidency. But will he now proceed to do what he said he’d do? Well, for most of the things he said he’d do, he can’t do it alone– he needs congress. But my concern is possibly the withdrawal of the policy guidelines that resulted in DACA. He can certainly do that on his own. But will he? It would be a very divisive thing to do so; and it would seem counter to his statements that he intends to deport aliens “with criminal records.” The vast majority of DACA recipients do not have a criminal records (having one would render them ineligible for DACA) and they are a group of individuals who, it can be said, are most blameless for being in this country illegally since many of them were brought to the United States as children by their parents: they had no choice in the matter. If Mr. Trump is true to his words about coming together and not being divisive, then he will not revoke DACA. I don’t believe he will do so, but we have to wait and see.
To all of you who are thinking of filing for any applications with USCIS, such as adjustment of status or naturalization, please be aware that USCIS fees are increasing effective December 23, 2016. If you want to avoid having to pay the higher fees, please come into the office to get started as soon as possible!
The Department of Homeland Security (“DHS”) just announced a new regulation that will go into effect on August 29, 2016 that expands the rules for Provisional Waivers. Before 2013, when someone had accumulated unlawful presence in the United States for over 6 months or a year, they needed to file a waiver after they had their interview at the consulate outside the United States. This often meant that the applicant had to wait outside the United States and away from their family for extended periods of time. Moreover, it was incredibly stressful going to an interview knowing that it was possible their waiver might be denied. For this reason, many people chose to not bother with legalizing their status because they were afraid they would end up only separating themselves from their loved ones for potentially ten years.
In 2013, DHS began allowing immediate relatives (spouse, parent, child) of U.S. citizens to be able to apply for the waiver while still in the United States. This was done in many ways to address the fears that many people had in going forward with a consulate interview. However, the provisional waiver was limited in that legal residents could not use the provisional waivers. However, with the new rule, spouses of legal residents will be able to use the provisional waiver as well showing hardship to parents. This essentially means the provisional waiver is the same as the “normal” waiver that used to be filed after the consulate interview. Stayed tuned as new information is released.
Effective October 1, 2015, an executive order from the President will allow thousands of immigrants and their spouses and children with backlogged priority dates in either employment or family based categories to apply for adjustment of status. The best thing about this rule is that the immigrants will be allowed to file for adjustment of status even though their priority dates are not yet current. Obviously, this may help immigrants in back-logged categories. Stay tuned for further details once the actual new rule is published.
The 5th Circuit Court of Appeal refused to lift a temporary injunction that a district judge in Texas had imposed on the expanded DACA and DAPA. The Government had asked the court to temporarily block the injunction but the 5th Circuit Court refused. This denial was not unexpected though it is, of course, disappointing. However, it is likely that eventually, the provisions of DAPA will go through as there is little doubt that the President has the authority to implement DAPA through executive order.
Even though the federal judge in Brownsville rejected President Obama’s request that the Stay be lifted regarding implementation of the expanded DACA and new DAPA programs, it is of little consequence. The Federal District Court (different judge) is set to hear arguments next week on the DAPA implementation. Hopefully, the Federal Court will lift the stay and DAPA can be implemented in the following weeks. Stayed tuned for updates.