Based on federal lawsuits challenging President Trump’s ending of DACA, the DACA program is currently back in place. This means that current DACA recipients can apply to extend their DACA status.

Normally, USCIS has always advised DACA recipients to renew their applications between 150-120 days prior to expiration; HOWEVER, USCIS has stated that they will accept renewal applications submitted even earlier than 150 days from expiration.

For example, an person who holds DACA status until March of 2019 could still apply for renewal now; however they will receive a two year extension from the date USCIS extends their status. If USCIS extends their status in June of 2018, they would extend it until June of 2020. So, by applying early, a person may receive less than a full two years beyond their current expiration date.

Why Renew Now? 

Simple, this window to renew DACA may close in the near future. The fight between lower federal courts and the Trump administration about whether DACA will continue is currently pending before the U.S. Supreme Court, which will have the final word in the dispute. It is hard to predict when the Supreme Court will decide the case. It could happen tomorrow or in months. If the Supreme Court agrees with the Trump administration that ending all parts of the program is legal, then this window to renew applications will be gone.

If I file to renew my DACA and then the Supreme Court “re-ends” the DACA program, will my renewal be decided and approved?

We presume that any applications for extension that are filed before any negative decision by the Supreme Court will be honored (meaning decided and approved if the person continues to meet the DACA requirements). This was the procedure when DACA was first ended by Trump. To subsequently reject DACA extensions filed within this window would create a number of additional legal problems for the Trump administration, so we do not anticipate this happening.

If I have never applied for DACA, but I qualify, can I apply now?

No, unfortunately, the lower federal courts’ decisions did not reopen DACA for new applicants. It only re-opened DACA for current DACA status holders who are applying for extensions.

If I have more questions about DACA, or immigration in general?

Give us a call or email us from our contact form. You will be able to speak to an attorney about your questions. (303) 872-6985.

For the full USCIS “Response to January 2018 Preliminary Injunction” click here.

Photo by Claire Anderson on Unsplash

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Last week Trump sent his “term sheet” to congressional republicans containing what he wants in exchange for a “DREAM Act” that would provide an eventual path to citizenship for Dreamers. In contrast to his earlier statements (“I will sign any Dream Act legislation that is put on my desk”), Trump is now attempting to extract an enormously steep price for a path to citizenship for Dreamers. The price is so steep that many Dreamers themselves have already come out against his proposed framework. Rather than being satisfied with an enormous amount of money for his wall, Trump is now demanding massive changes to our entire immigration system. The most striking changes are:

The elimination of all family preference immigration categories AND the right of U.S. citizens to petition for their parents

Currently, the family immigration system is broken into two categories for family members:

(1) The first category is immediate relatives (“IRs”) consisting of spouses, minor children (under 21) and parents of U.S. citizens. There are neither quotas nor wait lists for IR’s (except for the time required to process the applications) since these relationships are so close.

(2) The second category is broadly titled the “preference categories” consisting of adult children and siblings of U.S. citizens, and spouses, minor children and unmarried adult children of lawful permanent residents (LPR’s or green card holders). For preference categories, there are usually very long waiting periods to immigrate to the U.S. (as long as 20 years) because the U.S. only lets in a fixed number of immigrants in these categories each year.

The White House plan proposes to eliminate the immediate relative sub-category of parents of U.S. citizens and eliminate all preference categories. This is a monumental change to our existing immigration system. Ironically, the White House titles this section “Protect the Nuclear Family”, yet the proposal drastically reduces the family members that can immigrate to the U.S., only preserving spouses and minor children of citizens. The elimination of parents is particularly bizarre and heartless. Is the U.S. ready to step this afar away from a valued practical and cultural norm of taking care of your parents as they age? The elimination of the preference categories would also be extremely detrimental and very short-sighted, particularly because it is moving forward without any real discussion or research conducted by the White House or Congress into the issues.

The elimination of the diversity lottery program:

The diversity lottery allows 50,000 new immigrants into the country each year from traditionally underrepresented parts of the world. Applicants must meet minimum education or work experience requirements to qualify for the lottery. The lottery is based on the principle that diversity is a source of strength, an idea which use to be a widely shared and valued principle in this country.

The use of “expedited removals” to deport visa overstays:

With this change, any person who overstays their visa would become subject to deportation without the due process right of first seeing an immigration judge. Such a measure would be particularly harsh and have a huge adverse effect on many U.S. citizens since many of these individuals only overstay their visas because they are in a relationship or marry a U.S. citizen. Many others also have an understandable reason for overstaying their visa such as a legitimate claim to asylum or eligibility for a U visa based on being the victim of a serious crime. If these individuals are deported, they will be subject to the deportation bar and face substantial hurdles to returning to this country, despite the fact that they may have a lawful path to obtain their green card. Quite simply, this punishment would severely outweigh the crime in most cases and adversely affect the rights of many U.S. citizen and resident family members.

Is it worth it?

It is truly sad and amoral to use the lives of the Dreamers in an attempt to change our immigration system in such a profound and negative way. These are young people who did not understand that they were were not Americans until they were teenagers. Many were brought here in the arms of their parents. Now Trump dangles their lives in front of the Democrats mercilessly to see how much he can extract for their protection. This starting point is certainly not a positive sign in these negotiations, but perhaps some rational members of his own party can convince Trump to back off from these demands, and merely take the King’s ransom that he is requesting for his wall in exchange for protecting the Dreamers.

Photo by Feifei Peng on Unsplash

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What is Necessary for the DREAM Act to Pass?

While the first proposed deadline has passed to bring the DREAM Act to a vote in 2017, we are still cautiously optimistic that we could see a DREAM Act in 2018. Our primary reason for optimism is that the majority of both houses of Congress, as well as Trump (at times), have voiced their support for the DREAM Act legislation. To get to 51% in the House of Representatives, only 17 Republicans must vote in favor of a DREAM Act. Since the House is currently comprised of 234 Republicans and 201 Democrats (17 Republican votes results in a majority vote of 218-217 assuming all Democrats will vote in favor of a DREAM Act, which is a pretty safe assumption). On December 5^th, 34 House Republicans signed a letter to the Republican party asking to enact a permanent solution for Dreamers (or DACA recipients). Therefore, we actually have twice as many GOP votes as are needed in the House.

In the Senate, we need far less Republican support since currently there are (or will be shortly once Doug Jones is sworn in to replace Jeff Sessions in Alabama) 51 Republicans, 47 Democrats and 2 Independents. It is safe to assume that between the two independents and the Republicans, well more than the necessary 4 additional Senators will vote in favor of a DREAM Act.

So, if we have the votes, what is the holdup?

Well first, there is this Trump character. Unfortunately, 51% of both houses only passes new legislation if the President is on board. If he vetoes the bill, then the legislation could only pass with 2/3’s of both houses, a much taller order. Further, Trump appears unwilling to stick to his word on this issue, now choosing to use the DREAM Act as political leverage to extract other legislation that is very unpopular with Democrats.

Additionally, there are many rules that complicate bringing a new bill to vote. First, because both the House and the Senate are Republican controlled, they appoint the leader of both legislative bodies. These leaders are Mitch McConnell for the Senate and Paul Ryan for the House. These majority leaders control the procedure for bringing a new bill to a vote. Because they have the power to schedule when a new bill comes to a final vote, they can greatly stall the process for legislation that their party does not support. Senators also have the ability to “filibuster” any new legislation they oppose, which effectively allows them to run out the clock on passing new legislation in a given senate session. The rule derives from the principle that there should be no limit on how long a Senator can debate a piece of legislation. The bizarre consequence is that we have seen senators read from the dictionary as they filibuster a bill they oppose so that the bill never proceeds to a vote. Generally, 60 votes are required to bring a filibuster to an end, which would be challenging if a Republican senator chooses to filibuster the DREAM Act legislation.

Given the impediments that President Trump and the GOP majority held houses still pose, a simple majority will likely be insufficient to pass the DREAM Act. CNN did recently report that Mitch McConnell pledged to bring the Dream Act to a vote in January . . . if the parties reach agreement on border security, interior enforcement and other parts of the immigration system. But such a broad, conditional statement gives us little assurance that a vote will happen this month.

How much support above a simple majority will be needed to get the Republican leaders and President Trump on board is a question we hope is answered by actually passing the DREAM Act in 2018.

 Photo by:Baim Hanif

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Before I comment on the ridiculous statements of Attorney General Jeff Sessions (“the compassionate thing is to end the lawlessness [of DACA]??]) and the cowardice of ending such a benign program that extends relatively little rights to a group of young people who deserve so much more, I want to get the facts out regarding what Trump and Sessions have done. Here they are: 

• All new (first time) DACA applications that have been received by USCIS by 9/5/17 will be decided and granted if the applicant meets the eligibility requirements. 
• Any new (first time) DACA application received AFTER 9/5/17 will be rejected.  
• All applications for extension of DACA status that have already been accepted will be granted a final extension presuming continuing eligibility. 
• Any DACA applicant whose grant expires between September 5, 2017 and March 5, 2018 can file a final extension request and it will be adjudicated as long as it is filed before October 5, 2017.  
• Any DACA extension request filed after October 5, 2017 will be rejected. 
• All current DACA grants remain in effect and status is valid until the listed expiration dates. 
• Travel Permission applications (form I-131 advance parole) for individuals with DACA will no longer be accepted. 
• If you have already been granted travel permission (advance parole), the validity period to use the advance parole document will generally remain in effect (but please do not travel even with advance parole without discussing risks with your attorney!).  
• All pending travel permission applications (form I-131 advance parole) will be closed and the application fee will be refunded to applicants.  

These facts come directly from USCIS’ memorandum, released today, titled: “Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA).”   

Photo Credit: Minister Erik McGregor Flickr via Compfight cc

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Before our discussion below of recently proposed immigration bills, it is worth reviewing the process of how a bill (a proposed new law) becomes law. The fact of the matter is that, for better or for worse, our country’s founders made it very difficult to change the law (with few exceptions). Bills hit Congress all the time, but in reality only 4% of those bills become law[1] and those bills that do become law are usually substantially different from the original draft. Bills have to be introduced, sent to committees and subcommittees, debated, amended, voted on in the House of Representatives, win a majority of votes to go to Senate, repeat the whole process over again and, if approved by both houses, they must be signed into law by the president (if vetoed, 2/3 of both houses are needed to override the veto).

Since Trump took office, immigrant communities and those who have a close relationship with these communities must temper both our fear and our hope when it comes to new proposed immigration laws. In light of this reality, let’s turn to the bills gaining the most attention in the immigration debate, but let us remember that each of these bills still have a long road ahead of them to become actual law.

The Unlikely Bad News: The RAISE Act

The infamous RAISE Act (Reforming American Immigration for Strong Employment Act) would highly favor immigration for young professionals between the ages of 26-30, holding doctorates, Nobel Prizes or Olympic medals [2]. Of course, less impressive individuals could also gain entrance depending on their capacity to gain 30 points in the proposed point-based merit system based on: the possession of university degrees, fluency in English, placement in the higher income brackets, etc. Investment too, over $1.35 million, would gain favor in a visa application. Family visas apart from immediate family of US citizens, asylum and refugee visas and other categories lacking “merit” would substantially suffer. The green card lottery promoting diversity immigration would be slashed and total legal immigration would be cut by a projected 41% on the first year [3]. Though the bill has the support of President Trump, it hasn’t gained much traction in either house, nor is it in the least bit impressive in the eyes of our leading economists (or really anyone with a general understanding of economics).

The Unlikely Good News: the DREAM Act of 2017

The DREAM ACT of 2017 is a bill with bi-partisan sponsorship that would pave a path towards citizenship for those undocumented immigrants who arrived as children. It would expand the scope of the DACA criteria, making those who entered before their 18^th birthday eligible and providing a “hardship waiver” to those falling outside the general eligibility but facing extraordinary challenges. The process would still be long, requiring its beneficiaries to hold Conditional Permanency Residency Status for eight years, and then applying for Legal Permanent Residency, but it would provide a track for many who are currently unprotected [4]. Remember, DACA is simply “deferred action” in regards to potential deportation (though it does grant the ability to work, go to school and even join the military). Also remember that DACA is an executive order, and that means it can disappear if the president decides to make it disappear.

The Real Concern: DACA

This is the exception to the “laws are difficult to change” statement mentioned above because DACA was created with an executive order, which is unilateral action by our President. As such, it can also disappear with unilateral action from Trump. The possibility that nearly 800,000 young people protected under DACA could lose protection with the stroke of a pen is a real reason for concern. Though Trump initially showed a degree of sympathy for “DREAMERS”, Texas has recently threatened to file a lawsuit if the Trump administration does not phase DACA out by September 5^th[5]. In light of this, the Trump administration has not clarified whether or not DACA will continue.

Regardless of DACA’s fate, the current political climate threatening the fate of millions of immigrants has also created a force of passionate advocates who will continue to fight for the basic rights of immigrants.

[1] https://www.washingtonpost.com/news/wonk/wp/2014/01/16/almost-none-of-the-bills-introduced-into-congress-ever-becomes-a-law/?utm_term=.c8b85452a

[2] http://time.com/4885453/donald-trump-legal-immigration-bill/

[3] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[4] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[5] http://www.washingtontimes.com/news/2017/aug/14/daca-faces-challenges-trump-courts/

Photo Credit: Seven SeasEdutech Flickr via Compfight cc

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