DACA is a policy created by the Obama Administration in 2012 to protect certain undocumented individuals from deportation, and who came to the U.S. as children. In addition to protection from deportation, DACA recipients are eligible for work authorization, a social security number, and a state-issued identification or driver’s licenses. DACA does not grant lawful status such as a visa or permanent residence, nor does it offer a pathway to U.S. citizenship.
The Requirements For DACA
-You were under 31 years old as of June 15, 2012;
-You first came to the United States before your 16th birthday;
-You have lived continuously in the United States from June 15, 2007 until the present;
-You were physically present in the United States on June 15, 2012 and at the time you apply;
-You came to the United States without documents before June 15, 2012, or your lawful status expired as of June 15, 2012;
-You are currently studying, or you graduated from high school or earned a certificate of completion of high school or GED, or have been honorably discharged from the Coast Guard or military; and
-You have NOT been convicted of a felony, certain significant misdemeanors (including a single DUI), or three or more misdemeanors of any kind.
The Socioeconomic Impact of DACA
DACA has enabled roughly 825,000 eligible young adults to work lawfully, attend school, and plan their lives without the constant threat of deportation—usually to an unfamiliar country. With work authorization and the imminent threat of deportation removed, DACA recipients have experienced pronounced upward mobility in their socioeconomic status. A national survey of DACA recipients conducted in August and September 2019 found that 58 percent of respondents moved on to a job with better pay, while 48 percent moved to a job with better working conditions and 53 percent moved to a job with health insurance or other benefits. Among those recipients in School, they said that DACA enabled them access to educational opportunities that they could not have otherwise pursued.
The Center for American Progress estimated in 2020 that roughly 202,500 DACA recipients are what DHS terms “essential critical infrastructure workers” who work in healthcare, education, and food-related industries. More precisely, “an estimated 29,000 health care workers are DACA recipients,” including nursing, psychiatric, and home health aides; personal care aides; registered nurses; medical assistants; and dental assistants. Another 14,900 DACA recipients are teachers. And 142,100 DACA recipients work in food production and distribution, ranging from agriculture and food processing to food warehousing and grocery store operations.
Timeline of Recent DACA-Related Developments
On September 5, 2017, then-Acting Secretary of Homeland Security Elaine Duke announced an end to the filing of new applications for DACA. DACA beneficiaries whose status was due to expire before March 5, 2018, were permitted to renew their status for an additional two years if they applied by October 5, 2017. Any person for whom DACA would have expired as of March 6, 2018, would no longer have deferred action or employment authorization. The attempted rescission was challenged by U.S. district courts in California, New York, Maryland, and the District of Columbia.
The U.S. Supreme Court agreed to review the legal challenges of the lower courts during its 2019-2020 term. On June 18, 2020, the Court ultimately ruled in a 5-4 decision that the Trump administration’s attempt to terminate the program was unlawful, reasoning that the administration failed to properly explain its decision or consider alternatives to a full rescission of the initiative in violation of the Administrative Procedure Act (APA). However, the Court also recognized that the federal government ultimately retains the authority to end the DACA initiative if it were to do so legally. Significantly, the Court found that the Trump administration failed to consider how DACA recipients had come to rely on the initiative for things such as education, employment, and establishing families in the United States.
Following the Supreme Court's decision, as well as a federal court order issued on July 17, 2020, the DACA program was technically restored to its state prior to the September 2017 rescission. This brought hope to the many people who aged into the initiative—particularly those who reached the minimum age requirement of 15 in the past couple of years while the litigation was ongoing. U.S. Citizenship and Immigration Services (USCIS) subsequently began accepting some initial DACA requests and applications for advance parole but failed to approve or adjudicate any of these forms. Approximately six weeks after the Supreme Court’s decision, then Acting Secretary of Homeland Security Chad Wolf issued a memorandum making major changes to the DACA initiative.
This July Memo made several significant changes to the operation of DACA. As of June 28, 2020, current and prior DACA recipients were allowed to continue to apply to renew their protections with USCIS. The validity period for those protections was reduced to one year, however, and DACA recipients were required to apply to renew their protections annually, rather than every two years. USCIS indicated plans to reject all pending and future initial DACA requests from people who are eligible for DACA but had not previously participated in the initiative.
A November 2020 ruling by a federal judge in New York set aside limitations placed on the program by Acting Secretary Wolf’s July memorandum. on the basis that Wolf was improperly appointed to his position. On December 4, the same judge ordered that limitations placed on DACA by the July 28 memorandum must be set aside and that the administration should fully reinstate DACA protections. The agency began accepting new DACA applications on December 7.
On December 22, 2020, in a separate lawsuit in the Southern District of Texas, U.S. District Judge Andrew Hanen heard arguments on cross motions for summary judgment in a case where the State of Texas (joined by several additional states) sought complete termination of the DACA program. Judge Hanen’s decision remains pending.
On January 20, 2021, President Biden issued a memorandum reaffirming the federal government’s commitment to DACA. The memorandum states that “the Secretary of Homeland Security, in consultation with the Attorney General, shall take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” As of now, the DACA initiative continues to operate as initially implemented in August 2012.
International Travel for DACA Applicants
DACA recipients can apply for advance parole, which is permission for the DACA recipient to travel outside the U.S and return lawfully. USCIS will only approve advance parole for DACA recipients who demonstrate that their need for travel is for “humanitarian, education, or employment” purposes.
DACA is a temporary fix to the quandary confronting hundreds of thousands of young undocumented immigrants. Without DACA, these young people cannot work legally in the United States and face the possibility of deportation to countries where they haven’t lived since they were very young. With DACA, they can finally get jobs legally, move up the socioeconomic ladder, and experience enough stability in their lives to pursue their education further and plan for the future.
DATE: February 5, 2021
USCIS today announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9, 2021 and run through noon Eastern on March 25, 2021. During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations.
Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary.
If USCS receives enough registrations by March 25, USCIS will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. USCIS intends to notify account holders by March 31. An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.
H-1B Selection Process Rule Effective Date Delay
USCIS has also announced that DHS is delaying the effective date of the H-1B Wage-Based Selection Process Final Rule until Dec. 31, 2021. USCIS will apply the regulations currently in place (random selection) to the initial registration period, and, any subsequent registration period for the FY 2022 registration process that takes place before Dec. 31, 2021.
DATE: January 28, 2021
President Biden has sent an immigration bill to Congress that Senator Menendez (D-NJ) and Congresswoman Sánchez (D-CA) will sponsor. Here are key provisions of the bill:
DATE: January 26, 2021
On January 20, 2021, President Biden issued a Presidential Memorandum entitled, "Preserving and Fortifying Deferred Action for Childhood Arrivals". The memo directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate consistent with applicable law, to preserve and fortify DACA.”
DATE: January 21, 2021
President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System. To read the official summary of the bill, " U.S. Citizenship Act of 2021", please go to: White House Press Release.
DATE: December 23, 2020
On December 7, DHS and USCIS updated their websites to comply with a federal court’s order.
The notices state that, effective December 7, 2020, USCIS is:
The notices also state that USCIS will “take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”
DATE: December 9, 2020
There are two central ways that a foreign national can obtain lawful permanent resident (LPR), commonly known as a "green card." Lawful permanent residents are foreign nationals who are permitted to work and live lawfully and permanently in the United States. Obtaining LPR status typically requires sponsorship, either via a qualifying relative or employer.
The family-based immigration category allows U.S. citizens and LPRs to bring certain qualifying family members to the United States. Family-based immigrants are admitted either as "immediate relatives" of U.S. citizens or through the family preference system.
In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States or adjustment to LPR status within the United States. The individual relative also must meet certain eligibility requirements that include demonstrating that they will not become primarily dependent on the government for subsistence.
The United States provides various ways for immigrants with valuable skills to come to the country on a permanent basis. Employment-based immigrants are divided into five preference categories.
(1) Priority Workers (Extraordinary ability, outstanding professor or researcher, or multinational executive/manager) (EB-1)
(2) Professionals with Advanced Degrees and Exceptional Ability (EB-2)
(3) Professional, Skilled and Other Workers (EB-3)
(4) Special Immigrants (EB-4)
(5) Investors and Employment Creation (EB-5)
Public Charge Defined:
“Public charge” is a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied a green card, visa, or admission into the United States. In deciding whether to grant some applicants a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future, which would make them a “public charge.”
Affidavit of Support:
The Rule requires almost all family-based visa applicants as well as some employment-based applicants to submit Form I-864, Affidavit of Support form, as a condition for satisfying public charge ground of inadmissibility. Affected employment-based applicants are limited to those whose relative is the petitioning sponsoring employer or applicants with a significant (at least five percent) ownership interest in the business entity filing the petition.
The Affidavit of Support is a legally enforceable contract which obligates the sponsor to provide adequate support to the immigrant if need be. Under US immigration law, the sponsor bears the financial responsibility for the immigrant and could potentially be sued by the government and/or the immigrant for support.
After signing an Affidavit of Support, the sponsor’s responsibility is to financially support the immigrant until the he/she:
· Becomes a US citizen
· Earns 40 work quarters credited toward Social Security
· Permanently leaves the US
In order to be eligible to sponsor an immigrant for a green card, a person must be able to satisfy the required income levels. The sponsor must show that they have enough income and/or assets to maintain the intending immigrant and the rest of their household at 125% of the current Federal Poverty Guidelines.
New Support Requirements:
As of Feb. 24, 2020, a new public charge rule became effective. The new rule implemented a "totality of the circumstances" test, where the Affidavit is Support is now only ONE factor in the determination. The USCIS Adjudicator will consider whether the applicant is more likely than not to receive public benefits. Since the public charge determination is prospective in nature, the question is whether the applicant for adjustment of status or immigrant visa is "likely at any time to become a public charge." A public charge finding will result in the applicant being inadmissible to the U.S.
USCIS adjudicators will apply a complex totality of circumstances test taking into account a broad range of positive and negative factors. The central factors examined are: Age; Health; Family status; Education and skills; and Financial status (assets, liabilities, and resources.) For each factor, the rule identifies a “standard,” which articulates how that factor is to be considered, and the evidence that will be considered in connection with the “standard.”
One of heavily weighted negative factor would be if, for example, the intending immigrant has received public benefits as defined below. Due to the totality test, even if an applicant has not received such benefits, he/she may still be inadmissible on public charge grounds.
Which Public Benefits Are Problems for Public Charge?
1. Any Federal, State, local or tribal cash assistance for income maintenance
2. Supplemental Security Income (SSI)
3. Temporary Assistance for Needy Families (TANF)
4. State General Assistance Programs (GA) (Federal, state, or local cash benefit programs)
5. Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”)
6. Section 8 Housing Assistance under the Housing Choice Voucher Program
7. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
8. Public Housing under the Housing Act of 1937
9. Federally Funded Medicaid (Non-emergency)
DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another, including household members of the applicant. That is, the applicant’s children may receive public benefits.
Current state of new legislation:
On 12/02/2020, the U.S. Court of Appeals for the Ninth Circuit upheld preliminary injunctions (issued by Northern District of California and the Eastern District of Washington) blocking implementation of the "public charge" rule.
In its order, however, the panel majority vacated the Eastern District of Washington’s entry of a nationwide injunction. At this time, it remains unclear whether the Eastern District of Washington will need to revisit its order to address the scope of relief or whether the preliminary injunction will simply apply to the plaintiff states, which include CA, DC, ME, OR, PA, WA, CO, DE, IL, MD, MA, MN, NV, NJ, NM, RI, HI.
CAVEAT: The information provided herein is current as of (date of posting) and is subject to change, based on ongoing litigation.
NOTE: Consulates are not currently requiring the public charge form for immigrant visa processing.