Tag Archives: executive action

No DACA / DAPA Appeal

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No Appeal for Now

Earlier this week, we covered the United States Court of Appeals for the Fifth Circuit decision on the expanded DACA and DAPA programs. The court denied the Department of Justice’s request for a stay on the expanded DACA and DAPA programs, which it requested following a federal court’s decision to issue a preliminary injunction. That means that the programs remain unavailable.

The Fifth Circuit will hear arguments on the merits of the actual preliminary injunction in July. The court’s decision this week could be an augur of the decision on the merits. The decision was 2-1 against the executive action programs. The Department of Justice will not appeal that decision to the Supreme Court. Instead, it will wait for the hearing in July to make its case against the preliminary injunction and make the programs available to millions of individuals who are designated as low priorities for removal.

Expanded DACA was set to go into effect in February and it would have provided temporary relief to millions of undocumented migrants. DAPA was planned for May, and it has not been in effect. The original DACA program from 2012 remains in effect, but the class of individuals that qualifies is limited in comparison to the new executive programs.

Expanded DACA and DAPA are not pathways to citizenship. They do not grant permanent residency. They do not even confer real status. They are supposed to serve as temporary measures so that millions of individuals can obtain work authorization. The benefits that DACA recipients and undocumented migrants are eligible for are contested. The DACA and DAPA programs are supposed to provide relief temporarily while Congress passes comprehensive immigration reform. This has been a legislative priority at points over the past ten years, but it has not come to fruition.

Fifth Circuit – DAPA, DACA

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Fifth Circuit Blocks Request to Stay DAPA and Expanded DACA

 

This was expected, but that does not mean it does not hurt for millions of hopeful immigrants.

The Fifth Circuit for the US Court of Appeals issued a decision yesterday, blocking the emergency request for a stay that the Department of Justice requested. The Department of Justice requested that the court allow the DAPA and expanded DACA programs to go into effect. A federal judge in Texas blocked from going into effect. These were heavily publicized executive action orders from November that had years of anticipation. After Congress did not pass comprehensive immigration reform, President Obama took it within his executive authority to pass limited relief for certain individuals without status. The court’s decision was 2-1, with the one dissenting judge finding this case to be outside the judicial purview. The Fifth Circuit heard oral arguments on April 17 and this decision was expected.

This was only the decision on whether the stay of the federal judge’s preliminary injunction should be granted. This means that the programs will continue to be unavailable. The Fifth Circuit will hear the appeal of the preliminary injunction in July.

Expanded DACA is intended to be an improvement of the existing DACA program, which is still in effect. DAPA is supposed to provide protections to parents of US citizens and permanent residents, much in line with the US’s underlining goal of immigration policy – family togetherness. Somewhere between 4 -5 million individuals would benefit from these programs, which would allow for work authorization and authorized stay. The eligible individuals need to be low removal priorities, meaning they have a clean criminal record or close to clean record. These people continue to wait in limbo, as we wait for oral arguments in July and a subsequent decision.

H-4 Work Authorization

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USCIS announced a new rule today, February 24, 2015, allowing H-4 visa holders in certain situations to obtain work authorization. Work authorization would not change their H-4 dependent status on an H-1B principal. Successful applicants can apply for an employment authorization card on May 26, 2015. Please note that employment authorization applications can often take three months.

 

Work authorization is permitted for H-4 visa holders who have an H-1B principal with a pending I-140 (employment-based application) or with an approved I-140 under AC21. AC21 104(c) and 106(a) allow for H-1B visa holders to extend their status with a pending or approved I-140 application for permanent residence. Individuals from countries such as India, China, and the Philippines have excruciatingly long waits for their priority date, even when they are approved for their Green Cards through EB-2 or EB-3 categories. During those waits, H-4 visa holders will be able to work.

 

This will bring much relief to H-4 visa holders and should help local economies benefit from talented individuals who can now contribute. This proposal was announced with the series of Executive Actions from November 20, 2015 that primarily focused on deferred action for parents of Americans and expanded DACA. However, there are also executive orders that have more support, such as allowing certain H-4 visa holders to obtain work authorization and employment.

 

November 2014 was not the first mention of permitting H-4 work authorization. Over the summer of 2014, a Notice and Comment period generated enormous support for the proposal, with H-4 and H-1B visa holders voicing their espousal of such a rule. Opposition was minor and consisted of fear that H-4 visa holders would be discriminated against and forced into menial labor positions.

 

The Law Offices of Andrew Wood applauds USCIS for announcing this rule and looks forward to assisting H-4 visa holders obtain employment authorization. If you would like to learn more about how we can assist you, please drop us a line.

Emergency Stay Filed by DOJ

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The Department of Justice filed an emergency stay today in the Obama administration’s quest to restart the DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals) programs that were enjoined last week. Judge Harlam of a federal court in Texas issued an injunction last week, shutting down the two programs before they could accept applications. Guidelines were issued for both DAPA and DACA. DACA was set to begin on February 18 and DAPA was tentatively scheduled for May.

 

Deferred action is a type of prosecutorial discretion that the executive branch exercises to allow migrants who lack immigrant or non-immigrant status to remain in the United States. Neither of the deferred actions would grant actual status. They would allow qualifying applicants to acquire an employment authorization card, so that they could work legally, along with a three-year grant to stay in the United States without the threat of removal or deportation. The criteria for the programs can be found here and here.

 

The overriding policy of US immigration law is family reunification and the programs were designed with that mind. Immigration action has come in the form of executive action, a result of congressional inaction on passing immigration reform or the DREAM Act. The programs are supposed to be temporary measures while meaningful reform can occur through the legislative process.

 

26 states, led by Texas, petitioned to shut down the expanded DACA and DAPA programs, citing economic harm and executive overreach. The Department of Justice has announced its intention to appeal the federal decision.

 

Other aspects of the executive actions from November are unaffected. In addition, DACA as originally implemented on June 15, 2012 remains in effect for recipients and future applicants.

Judge Stops DAPA and New DACA

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A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

 

The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

 

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.