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Nearly six months after the U.S. Supreme Court ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program was unlawful, the government refused to comply with the ruling, sending Dreamers back to court to enforce it.
On Dec. 4, a federal court in New York ordered the government to fully reinstate DACA to its Obama-era terms. Three days later, the Department of Homeland Security announced it would comply with the order and begin to accept first-time DACA requests and restore other terms of the program it had taken away, such as “advance parole,” which allows Dreamers to travel abroad and return to the U.S., thereby opening a narrow pathway for permanent residence for a small class of Dreamers. Meanwhile, President-elect Joe Biden has promised to reinstate DACA on his first day in office, to work toward a permanent legislative fix and provide a pathway to citizenship for undocumented immigrants.
Despite these indisputable victories, here’s why it’s too early to celebrate. An existential threat to DACA looms in the form of a pending lawsuit in Texas federal court that directly grapples with whether the original DACA program is lawful in the first place—a question no court has addressed (although three dissenting Supreme Court Justices characterized DACA as “unlawful from its inception”).
The Texas court’s history with DACA-related litigation does not bode well for Dreamers: In 2015, Judge Andrew S. Hanen blocked the Obama administration from introducing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, an expansion of DACA that shielded undocumented parents of U.S. citizens and green card holders from deportation. The decision only narrowly survived appeal, when the Fifth Circuit Court of Appeals agreed and an eight-member Supreme Court (following the death of Antonin Scalia) split evenly, leaving in place the injunction on DAPA. The expanded program never took effect.
After President Trump took office, his Acting Secretary of Homeland Security issued a September 2017 memorandum rescinding the DACA program. But the rescission was immediately challenged and a judge in California ordered the administration to maintain the program. Additional injunctions followed, requiring the government to continue to accept renewal applications. In response, Texas and other conservative states filed a new complaint in the Texas court, this time seeking to dismantle DACA as “unlawful.” In August 2018, Judge Hanen ruled that DACA “violates the substantive provisions of the Administrative Procedure Act,” but somewhat surprisingly left DACA in place.
Questioning why the states did not challenge DACA itself in their original 2014 suit against DAPA, he noted the potential for significant hardship to the estimated 800,000 Dreamers, and concluded that a temporary injunction would not repair an “egg [that] has [already] been scrambled.” Importantly, however, Judge Hanen also said that “DACA and DAPA are basically identical, and there is no legal ground for striking DAPA that wouldn’t apply to DACA.” The states are now asking the court to declare that DACA is unlawful and order its termination. A hearing took place Tuesday, Dec. 22.
The stakes could not be higher for Dreamers. Judge Hanen has already signaled that DACA is likely to suffer the same fate as DAPA and could ultimately strike down the program. But after astute advocacy by Dreamers’ attorneys at today’s hearing—in particular focusing on nuanced conceptions about prosecutorial discretion, employment authorization, and potential legal remedies flowing from his decision—Judge Hanen’s task just got more complicated. Moreover, Texas and the other plaintiff states are requesting that the judge stay his decision for a two-year period, during which no additional applications or renewals would be entertained. If the case winds up in the Supreme Court, it will be a different and more hostile forum with the addition of Justice Amy Coney Barrett, who, as a judge on the Seventh Circuit Court of Appeals, authored a 40-page dissent siding with the Trump administration on the controversial pubic charge rule.
Of course, the battle will continue—and with renewed vigor under a new administration that has promised to “reinstate” DACA and protect Dreamers. All sides agree that only Congress can provide a permanent solution for Dreamers, and it remains to be seen whether legislative relief will be possible in the current hyper-partisan environment.” Meanwhile, despite overwhelming public support for DACA and repeated public advocacy by U.S. businesses urging the government to keep the program in place, Dreamers continue to live a nightmare of uncertainty.
This article was originally published in the California Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The denial rate for new H-1B petitions dipped to 7% in the third quarter of fiscal year 2020, though overall H-1B denial rates remain high, according to an analysis of U.S. Citizenship and Immigration Services (USCIS) data by the National Foundation for American Policy.
Key Points:
Source: USCIS
Source: NFAP
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The Department of Homeland Security is expected to extend the ban on nonessential land travel with Canada and Mexico. Prepublication versions of the notices were posted today.
Additional Information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.
A federal court in California has put a temporary hold on President Trump’s immigrant visa ban, but only for the 181 families who brought the lawsuit.
Background: Under an April 22 presidential proclamation, the U.S. suspended the entry of immigrant visa (green card) applicants on the basis that they are a threat to U.S. workers during the COVID-19 economic recovery. The ban is set to expire Dec. 31 but may be extended into 2021. A group of U.S. citizens and permanent residents sued the government arguing that the ban exceeds presidential authority and violates the Administrative Procedure Act. In issuing the temporary injunction, the court ruled that the 181 families, who have approved petitions but are unable to obtain visas, suffer hardships in being separated from each other and, for the families whose children will turn 21 during the ban, in losing eligibility for green cards.
U.S. Citizenship and Immigration Services on Tuesday acknowledged “significant delays” in the processing of receipt notices for recently filed applications and petitions.
BAL Analysis: The delays that USCIS reported are consistent with what BAL has experienced in recent months, especially since October, when the State Department dramatically advanced priority-date cutoffs for adjustment-of-status applications. Indeed, some adjustment-of-status applicants from October and November are still waiting on a receipt notice. USCIS’ statement indicates that applicants should not be overly concerned if they have yet to receive a receipt notice. BAL continues to follow the matter and will provide updates to clients as needed.
A federal judge in Washington, DC, has ruled that the Trump administration did not follow proper procedures when it issued a rule in October to amend wage requirements for the H-1B, H-1B1 and E-3 visa categories and for permanent labor certifications (PERM). It was the third time this month that a federal judge ruled against the administration in a case challenging the rule.
Additional Information: Judge Sullivan ordered DOL to take steps to reissue prevailing wage determinations that were issued after Oct. 8 under the interim final rule. BAL will continue to follow litigation related to the DOL rule and will provide updates as information becomes available.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Nov. 30, the department was adjudicating applications filed in June and earlier, conducting audit reviews on applications filed in January and earlier, and reviewing appeals for reconsideration filed in August and earlier.
Average PERM processing times:
PWD Processing: As of Nov. 30, the National Prevailing Wage Center was processing PWD requests filed in July and earlier for H-1B and PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in October and earlier for PERM cases. There were no redeterminations pending for H-1B cases. Center director reviews were being conducted on PERM cases filed in September and earlier. There were no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations:
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for non-audited PERM applications filed in June and earlier, and is seeing PWDs for requests filed in July and earlier for H-1B and PERM cases.
The Department of Homeland Security announced Monday that it will extend Temporary Protected Status-related documents for TPS beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan.
Background: In September, a federal appeals court overturned an injunction imposed in October 2018 that blocked the Trump administration from terminating TPS for El Salvador, Haiti, Nicaragua, and Sudan, but did not immediately end TPS, leaving the injunction in place at this time. TPS designations for Nepal and Honduras are tied to the designations of the other four countries by a court order in a separate case.
Additional Information: The agency is expected to publish an official notice in the Federal Register tomorrow. A prepublication version was posted today. For information on the status of TPS for specific countries in light of the litigation, visit USCIS’ TPS page.
U.S. Citizenship and Immigration Services announced yesterday it will begin accepting new applications for Deferred Action for Childhood Arrivals (DACA) and make other changes to restore the program to the terms in effect before the Trump administration tried to terminate it in September 2017.
Effective immediately, USCIS is taking the following steps to comply with a Dec. 4 court order by a federal judge in New York.
Background: On June 18, the U.S. Supreme Court ruled that the Trump administration’s termination of DACA was unlawful. In July, USCIS announced it would continue to accept only renewal DACA applications, not new applications, and imposed new limitations on renewals of DACA and related EADs by issuing them for one year instead of the normal two-year period, and issuing advance parole in limited circumstances only. On Dec. 4, a U.S. District Court ordered the government to reinstate the DACA policy to the terms that existed under the Obama administration. In its announcement yesterday, the agency noted that it would comply with the court order while it remains in effect, but may appeal it.
President-elect Joe Biden has announced that he will nominate Alejandro Mayorkas, a former Obama administration official, to lead the Department of Homeland Security (DHS).
Mayorkas served in the Obama administration as the director of U.S. Citizenship and Immigration Services (USCIS) from 2008 to 2013 and deputy secretary of DHS from 2013 to 2016. When he led USCIS, he developed the Deferred Action for Childhood Arrivals (DACA) program. President Trump moved to terminate DACA shortly after taking office in 2017, but the U.S. Supreme Court found the termination unlawful earlier this year. As deputy DHS secretary, Mayorkas oversaw the agency’s response to the Zika and Ebola outbreaks. He also implemented the first memorandum of understanding between the United States and Cuba.
If confirmed by the Senate, Mayorkas, 61, would be the first immigrant and first Latino to lead the agency. Born in Cuba, Mayorkas, whose mother is a Holocaust survivor, came to the U.S. in 1960 when his parents fled the Cuban Revolution. He grew up in Southern California, and he received his undergraduate degree from University of California at Berkeley and his law degree from Loyola Law School.
In addition to immigration agency experience, Mayorkas has practiced law in private practice and as a prosecutor. As an Assistant U.S. Attorney in the Clinton administration, he focused on white collar crime, including money laundering, telemarketing fraud, healthcare and insurance fraud. After serving in the Obama administration, he returned to private practice as a partner at WilmerHale in Washington, D.C. where he has practiced since 2016.