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Jan. 31, 2018

DACA negotiations at forefront in nation's capital

The fate of DACA will send ripple effects across the nation and in all areas of employment and legal matters.

0202 rr leung

By Jared Leung
Twenty-eighteen has begun with both promise and alarm concerning immigration reform. As expected this past September when the Trump administration announced its cancellation of the Deferred Action for Childhood Arrivals Program, DACA is at the forefront.

DACA Injunction

On January 9, Judge William Alsup, a U.S. District Court Judge for the Northern District of California, issued a nationwide injunction against the "Sept. 5, 2017," rescission of DACA by the White House. The injunction prevented the termination of the DACA program scheduled to take place on March and instructed the Department of Homeland Security (DHS) to resume accepting renewal applications.

On January 13, the United States Citizenship and Immigration Services (USCIS) cited the Court's decision and resumed accepting DACA application under the same terms in place before the "September 5 rescission with two major exceptions:

  • USCIS does not accept applications from individuals who have never had DACA. It only accepts renewal applications. Individuals who failed to renew because of the rescission announcement may now submit their renewal applications.

  • USCIS does not accept initial or renewal applications for the "advance parole" travel document, which allows DACA recipients to travel outside of and return to the U.S. in case of an emergency.

USCIS' announcement can be viewed at https://goo.gl/E5bVxD.

Government Shutdown

The fight over DACA subsequently played a part in the shutdown of the federal government, which began on January 20. There were many reasons for the shutdown, such as funding for defense, the border wall, CHIP (Children's Health Insurance Program), etc., but inability of Senate Republicans and Democrats to find common ground on DACA was a major barrier to reaching an agreement that would have avoided the shutdown.

Just three days later, the shutdown ended for the immediate future through an agreement to fund the government through February 8. The agreement was based on a pledge by Senate Majority Leader Mitch McConnell to allow an immigration vote before February 8 to decide the fate of DACA.

White House Immigration Framework

Just four days later, on January 24 the White House announced the "Framework on Immigration Reform and Border Security," which proposed the following:

  • Border Security -- Including funding for President Trump's border wall, hiring more border personnel, halting catch-and-release policy, and increasing efficiency of removal systems.

  • DACA legalization -- 10 to 12-year path to citizenship with requirements for work, education and clean criminal backgrounds for 1.8 million individuals. This will include eligible individuals who have not applied for DACA because there are approximately only 750,000 current DACA recipients.

  • Protect the Nuclear Family -- Allow U.S. citizens and permanent residents to sponsor only spouses and children under 21 years old. The current system allows permanent residents to petition for their adult and single children over 21 years old, and U.S. citizens to petition for adult and married children over 21 years old, and siblings. The White House believes that this will stop what they call "chain migration."

  • Eliminate Lottery and Repurpose Visas -- Terminate the green card lottery program and use the numbers to alleviate family and skilled workers backlog.

See: https://goo.gl/QMCXWF.

Not surprisingly, leaders from the Democratic Party and immigrant advocacy groups strongly criticized the framework. House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer accused the White House of using DACA as a bargaining chip to enact "a hateful agenda" of immigration and bolster the Administration's effort to "make America white again". See https://goo.gl/2Bg3pE.

Planning Ahead

How should we prepare for this?

First, anything can happen. Expect the unexpected. If we can do something based on a court decision or temporary policy shift, we should act on it quickly, because we do not know how long that window of opportunity will be opened.

Second, DACA recipients and their employers should act ASAP. The Justice Department is seeking SCOTUS' review of the District Court decision on DACA, so we know that the Administration wants to cancel DACA in its current form by overturning the injunction issued by Judge Alsup.

We do not know how long the DACA legal injunction will last. For those who are eligible for DACA but have never applied, they are unfortunately out of luck. But for everyone else, they should immediately apply to renew DACA benefits if eligible. At the very least, they can extend their employment work authorization for two more years.

Employers with DACA employees will feel the most repercussions if DACA completely disappears. They will collectively lose 750,000 workers who are reliable and eager. As such, we recommend that employers identify their DACA employees and encourage them to apply for renewal of their status and work permit if applicable.

Also, if you are an employer and value the work currently done by a DACA employee, you should contact Congress and let them know how you feel.

Third, U.S. citizens and permanent residents should consider submitting petitions for their eligible sons, daughters, and siblings under the current system. It is clear that the long-standing principle of family unity in U.S. immigration is under attack.

"Chain migration" is such a derogatory and misleading term with respect to our current immigration system. It completely disregards the quota allocations already in place to ensure proper administration of the number of immigrants permitted each year based on family petitions.

Nonetheless, because "anything can happen", we suggest filing a family petition if needed to safeguard the options for any affected individual.

Fourth, more than ever, visitors and immigrants must clearly stay on the right side of the law. This seems obvious. However, in my law practice, I have seen people who make mistakes and wrong choices regardless of their immigration status. (Don't we all?). Visitors and intending immigrants who make simple mistakes may find themselves becoming deportable or removable from the U.S.

More will unfold in the next two weeks. The fate of DACA will send ripple effects across the nation and in all areas of employment and legal matters. It is my sincere hope that our leaders can cast aside political differences and work together to ensure a resolution that encompasses both justice and compassion.

Jared Leung is a partner at Davis Miles McGuire Gardner, PLCC. He manages the firm's immigration practice group.

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