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What is Deferred Action for Childhood Arrivals (DACA)?
DACA is a program implemented by President Obama on June 12, 2014 to help foreign nationals without lawful US immigration status come out of the shadows. Many persons who are eligible for Deferred Action for Childhood Arrivals first arrived in the United States with a lawful immigration status – some were lawful children of visitors, diplomats, foreign workers and foreign students. Many of them came at such a young age that they know no other home but the United States and are quintessentially American but for lack of immigration status. For many of these childhood arrivals, due to no fault of their own, they lack a lawful immigration status in the United States.
Contrary to what many believe, deferred action is not a new practice by the US Government. For decades the government has exercised discretion to prioritize the allocation of limited resources for deportation of undocumented immigrants. Immigration and Customs Enforcement (“ICE”), the agency charged with apprehension and removal of illegal aliens, focuses their efforts on finding and deporting criminals, not families.
Original DACA Program
President Obama’s DACA program identified specific individuals – childhood arrivals – for deferred action. The eligibility criteria included the following:
DACA Application Process
In order to apply for DACA, persons must submit USCIS Forms I-821D, I-765, I-765W, filing fees and supporting documentation to prove eligibility. For many, proof of residency can be the hardest part because a lack of a social security number makes it difficult to create the kind of paper trail the government wants to see, such as W2s, bank statements and utility bills.
If approved, a DACA recipient receives a work permit that allows them to obtain a social security number and in most states, a Driver’s License. DACA provides deferred action for a period of 2 years, and approximately 5 months before the expiration date.
Individuals need to apply for deferred action renewal, otherwise, they will accrue unlawful presence in the United States upon the expiration.
Expanded DACA Program
On November 20, 2014, President Obama announced several immigration reform program, one of which included an expansion of the DACA program. The expanded DACA program included the following basic criteria:
Another major change to the program was that the approval period is extended to 3 years instead of 2. DACA renewal requests would also need to be submitted every 3 years.
The Expanded DACA program was meant to begin on February 17, 2015, but a few days before the program started, pursuant to a lawsuit filed by 26 states in a U.S. District Court in Texas, Judge Andrew Hanen issued an injunction against the implementation of expanded DACA. Though many did not believe the judge had the power to issue a country-wide injunction, the Obama administration honored the decision andaggressively appealed the decision to the Fifth Circuit Court of Appeals. On April 17, 2015, oral arguments were heard by a panel of the Fifth Circuit and a decision has not yet been given. For now, the expanded DACA program is on hold.
For persons eligible for DACA, USCIS is still accepting applications for the original DACA program while many childhood arrivals are currently filing for DACA renewals. According to Pew Research, approximately 611,000 DACA applications have been granted out of 702,000 applications. The program has generated tax revenues while allowing many childhood arrivals to come out of the shadows.
Who are undocumented, or illegal, immigrants? Politicians, news media, and others seem opinionated, but often ill-informed about who these people are, where they came from, and how they fit into American society. Recent changes to the U.S. immigration policy have been proposed, and in some cases passed into law, by the Obama administration.
Who are undocumented immigrants?
An undocumented immigrant and an illegal alien both refer to foreign nationals who do not currently possess a lawful immigration status in the United States. The term “illegal alien” or “illegal immigrant” is a bit disparaging; it sounds like a UFO landed and dumped out foreign creatures that are less than human. These are people; many of them are hard-working people with strong family values simply seeking a better life. The term “undocumented immigrant” though not entirely accurate, is at least not derogatory. Some people come to the United States pursuant to a lawful non-immigrant status such as visitor, student or temporary worker, but stay longer than they are authorized. These people do have immigration documents, therefore, they aren’t exactly “undocumented,” their documents are just expired. These foreign nationals are often referred to as “overstays.”
Many of these people came to the USA with a lawful non-immigrant status such as visitor, temporary worker, student, diplomat or spouse/child of a lawful non-immigrant, but remained in the United States after the expiration of their period of authorized stay.
Penalties For Unlawful Immigration
The Immigration and Nationality Act (“INA”), the federal statute which governs immigration throughout the United States, provides harsh penalties for foreign nationals who sneak across the United States border as opposed to those who are lawfully admitted to the United States after inspection from a US immigration officer.
The biggest penalty is that, generally, persons who sneak over the US border are not eligible to later adjust their status to a lawful permanent resident (green card holder) whereas, in some circumstances, people who are admitted and inspected but overstay their non-immigrant status can. This becomes particularly important for people who have accrued more than 6 months or 1 year of unlawful presence in the United States because once such persons depart, they are banned from re-entry for periods of 3 years and 10 years, respectively.
Amnesty Programs
Since 1986, there have been several “amnesty” programs for persons without a lawful immigration status residing in the USA. Amnesty is a broad term used to refer to laws that allow otherwise ineligible foreign nationals to regularize their status in the United States. The most recent bill to be passed through Congress was pursuant to the LIFE Act, passed in December 2000, which allowed foreign nationals who were present in the United States as of December 21, 2000 and who had an immigrant visa petition filed on their behalf to obtain lawful permanent resident status (green cards) if they paid a penalty of $1000.00. This is codified in Section 245(i) of the INA.
In 2013, another attempt was made to offer amnesty to additional people with a long physical presence in the United States who passed background checks and paid a $1000 fine. The bill passed the Senate, but not the House of Representatives. In response to Congress’ inability to pass a bill, President Obama issued executive ordersto defer action for childhood arrivals and parents of US citizen children who passed background checks. Some of the Presidents’ measures, including the Expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) have been stopped by a federal court judge in Texas, though the case is on appeal in the Fifth Circuit Court of Appeals.
Lacking Lawful Immigration Status
Many immigrants who lack current status – especially children – lack status through no fault of their own. Many childhood arrivals do not learn until they become teenagers and attempt to apply for driver’s licenses, apply to college or seek employment, that they do not have a lawful status. Many of them know no other home besides the United States and speak no other language besides English.
Though rare, a small number of adults are living in the United States without a lawful immigration status and they may not even know it. This comes up in the case of children of diplomats who are born in the United States. Most diplomats are not subject to the jurisdiction of the United States, therefore, under the 14th Amendment of the US Constitution, they are not U.S. citizens at birth because they too are not subject to the jurisdiction of the United States. Unfortunately, these families do not know this and in the case of children who break residence in the United States and later return thinking they are US citizens, in fact, they are not.
Cost of Deportation
Recent studies on illegal immigration statistics estimate approximately 11 million immigrants lack documentation. Why doesn’t the US government simply deport them? The most practical reason is that it is too expensive. Illegal immigration statistics show that it costs approximately $18,000 to apprehend a person, and $3,300 to detain a person for 30 days. Some estimate that it would cost over $200 billion to deport every undocumented immigrant, and the entire requested agency budget for the Department of Homeland Security (“DHS”) for fiscal year 2016 is $41.2 billion.
To put that number in perspective, DHS includes many sub-agencies: the immigration and citizenship agency (USCIS), Customs and Border Patrol (CBP), airport security (TSA), the Secret Service, Immigration and Customs Enforcement (ICE), emergency response (FEMA) and the US. Coast Guard. Funding DHS even for this amount proved challenging this year as political debates over immigration nearly resulted in Congressional failure to fund the agency.
Well aware of its limited resources, DHS focuses it efforts of deportation of criminal aliens and persons apprehended at the border. As of January 1, 2015, DHS has clear directives to first deport convicted felons and terrorists, then those convicted of three significant misdemeanors, then those who are apprehended at the border or have a final order of deportation after Jan. 1, 2014. DHS is also directed to disregard or “defer action” of deportation for those who have US citizen children, or may qualify for an immigration benefit and have no criminal infractions.
Immigration law is always changing, as is the social and cultural response to immigration. Undocumented immigrants are afforded certain rights in America, and deportation or going to jail is not typical for non-criminals. Proposed changes to immigration law may allow people to more easily immigrate to America, but the topic remains complex and politically charged.
Are you an international athlete or coach who needs U.S. immigration status to work, train or reside in the United States?
Check out an article by Hykel Law client and international athlete, David Ziegler, featuring a contribution by Renee Hykel Cuddy, Esq. David Ziegler is a Canadian Equestrian Athlete who was recently granted P-1 (international athlete) status in the United States with our assistance. The article addresses several US immigration options for athletes and coaches, including B1/B2 visitors, H-3 trainees, P-1 athletes, coaches, and support personnel, O-1 extraordinary ability athletes and coaches, and green cards. Renee Hykel Cuddy, Esq. is very well-suited to prepare immigration applications for athletes and coaches because she was an Olympic Athlete for the US Rowing team for 6 years before entering the legal profession.
To have Renee personally evaluate your case, call 215-246-9400 or email: info@hykellaw.com
Article Link: http://eventingnation.com/home/visas-and-immigration-for-canadian-riders/
Earlier this month, a federal court judge in Texas issued a preliminary injunction which has delayed the implementation of the expanded DACA program meant to begin on February 18, 2015. The program is not cancelled; it is only temporarily delayed as confirmed by the President, who has aggressively appealed the Texas judge’s ruling. The judge’s order is likely to be overturned on appeal.
President Obama has encouraged all persons who are eligible for the expanded DACA program to continue to gather their documents and prepare to file because as soon as the legal battle is over, USICS will accept DACA applications.
The expanded DACA program opened the program to individuals who are over the age of 31 and who have been physically present in the United States since 2010. The original DACA program was only available to persons under the age of 31, who entered the country before age 16 and earned or were pursuing a high school diploma or GED.
Call Hykel Law today to find out if you qualify for the expanded DACA, DAPA or original DACA program, 215-246-9400.
In the wake of the November 2014 election, President Obama appears to be following through on his promise to millions of immigrants in the United States awaiting immigration reform. The President has stated:
“I indicated to (House) Speaker (John) Boehner several months ago that if in fact Congress failed to act I would use all the lawful authority that I possess to try and make the system work better. And that’s gonna happen, that’s gonna happen before the end of the year,” said Obama.
Though the details as to who will be eligible for benefits have not been announced, the changes are expected to provide work authorization for millions of people who may not otherwise qualify. Hykel Law will be ready to assess your case to determine if you qualify, prepare and file your case as soon possible after the formal announcement. Read about the President’s intentions here.
Are you a lawful permanent resident (green card holder) of the United States or a U.S. citizen? Are you interested in filing for your family members to live permanently in the United States? Learn about the different categories of family members for whom you can file. Once you file, for some family members there are waiting periods. Learn how to check the Department of State website monthly to track the process of your family member’s wait period. This article also addresses how to obtain temporary and permanent employment based immigration status in the United States, including several types of work visas that are available.
We look forward to helping you with your immigration case. We have the experience, knowledge and staff to handle your matter swiftly. Reach out today to discuss your needs for representation.