Visa Lawyer Blog

Articles Posted in Deferred Action and DREAM Act Students

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Jose Antonio Vargas has quickly become the face that has humanized the struggle for immigration reform. Unlike other immigrants, Jose is a Pulitzer Prize winning journalist, Washington Post reporter, activist, and the founder of an immigration awareness campaign called ‘Define American’. Back in June of 2011, Vargas courageously revealed to the world that he was undocumented in a column he wrote for New York Times magazine. In it he describes what his move to the United States was like, the lengths he went to as a child to fit in to the American lifestyle, and what it has been like residing in the United States unlawfully. Jose’s journey to the United States began much like that of any other immigrant. He was smuggled into the United States from the Philippines when he was only 12 years old by an individual he believed to be his relative. Once in the United States, Vargas was raised by his hardworking grandparents who afforded him a better future. From the outset, his upbringing in the bay area of San Francisco appeared to be much like that of any other American child.

It was not until he made a visit to the DMV to obtain his driver’s permit that he realized the green card he was given by his grandfather was in fact fake when he was told by the woman at the DMV window not to come back there again. For years, Jose Antonio Vargas has dedicated his life to standing in solidarity with the thousands of undocumented immigrants residing in the United States illegally. He has done this by serving as the voice of the undocumented, attending hundreds of conferences and speaking engagements, in addition to writing as a distinguished columnist.

Up until July 15th Vargas was able to advocate for the plight of undocumented immigrants without being apprehended despite constantly being in the public eye. A few days prior to July 15th Vargas appeared at a shelter housing Central American children and refugees and attended a vigil to honor them near the Rio Grande Valley. His presence in the region was meant to call attention to the humanitarian nature of the subject. In order to attend the event, Vargas crossed the McAllen, Texas TSA checkpoint, an area known to be highly secured and militarized. Vargas had not given much thought to the possible risk of being detained once he would return to the United States through the same checkpoint. According to the Department of Homeland Security Vargas was detained once he told TSA officials that he was residing in the country illegally. He was then taken to the McAllen Border Patrol Station and was given a Notice to Appear before an immigration judge. He was released within the same day after speaking with Immigration and Customs Enforcement officials. Unfortunately for Vargas, until comprehensive immigration reform is passed, he will continue to be forced to live under the radar. Vargas was not able to qualify for the Dream Act or for DACA, because his age did not meet the cutoff age as required by law. Shortly after being released Vargas issued a statement saying that the undocumented are constantly having to live in fear as a result of the failure of Congress and President Obama to act and bring about a viable solution to the problem. Jose Antonio Vargas challenges Congress to act by asking them the question: how do we define American?

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Secretary of the Department of Homeland Security Jeh Johnson

On June 05, 2014 the Secretary of the Department of Homeland Security, Jeh Johnson, announced the renewal process for enrollment in the program, Deferred Action for Childhood Arrivals (DACA). Effective immediately, USCIS will begin to accept renewal requests, as well as initial requests from DACA applicants who have not yet benefitted from the program. The first DACA applications that were approved by USCIS will expire in September 2014. USCIS recommends that initial DACA approved applicants file their renewal requests approximately 4 months before their current DACA expires. Following the renewal process, these applicants will be able to remain lawfully present in the United States and apply for an employment authorization valid for up to 2 years. According to USCIS, more than 560,000 applicants have already been approved under DACA since April of this year. The Secretary of the Department of Homeland Security, Jeh Johnson, added that children who crossed the border illegally with their parent(s) in search of a better life, should not be punished as adult offenders and should thus receive different treatment, given that they did not have a choice in the matter.

NOTE: Individuals who have not resided continuously within the United States since June 15, 2007 are not eligible to apply for DACA.

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Last Monday, April 28, Congresswoman Zoe Lofgren, U.S. Representative of California’s 19th district, introduced what is known as a Private Relief Bill to Congress in an effort to reunite fellow DREAMer and San Jose State University college student, David Gonzalez, with his mother Antonia Aguilar. The Private Relief Bill, which is introduced once or twice during each congressional session, is intended to bring congressional awareness to the plight of a specific person, whose situation demonstrates a ‘compelling humanitarian reason’ which would allow them to remain in the country legally.

Ms. Aguilar found herself in the position of being deported from the United States after returning from a trip to Mexico to see her dying father for the last time. David Gonzalez is only one of three of her children, and like thousands of other young men and women across the United States, has had to take on the parental role of raising his younger siblings while tending to his scholarly obligations.

After meeting with the young man and hearing his story, Congresswoman Lofgren echoed the same sentiments that millions across the country have expressed saying, “Sadly, this story is not unique. Our dysfunctional immigration system continues to rip families apart, separating husbands from wives and children from their parents. When our immigration system fails families I step in to do as much as I can….. Even extraordinary efforts on behalf of individuals are often not enough because our immigration system is fundamentally broken and will continue to be broken until we reform our immigration laws.”

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Beginning September of 2012, USCIS began granting what is known as deferred action to children who arrived to the United States before reaching the age of 16, having met other various requirements. Eligible deferred action applicants received an employment authorization good for a period of up to two years from USCIS. Applicants who applied for deferred action early on are now facing the expiration of their initial two year employment authorization granted to them by USCIS. Due to this, a DACA renewal process is currently underway, giving qualified applicants the opportunity to request and extend their deferred action, in order to avoid unlawful presence in the United States and be able to continue their employment. Details regarding the renewal process will be released in late May 2014, at which time USCIS anticipates that Form I-821D will be used for the dual purpose of initiating DACA petitions and renewal requests. All DACA applicants who wish to file a renewal request must wait until USCIS releases the new form designated for that purpose. Applicants that wish to file an initial deferred action request and not a renewal, can continue to file using the form currently available.

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House Republicans took aim at President Barack Obama’s immigration policy’s that allows young undocumented immigrants to stay in the United States.

The ENFORCE Act, which passed 233 to 181, is not about immigration exclusively. The bill goes after Obama for alleged overreach on a variety of issues, including the Affordable Healthcare Act, education and drug laws. The bill would allow Congress to sue the executive branch for allegedly failing to enforce the law, which could lead to key policies protecting some undocumented immigrants to being dismantled.

This move stands in stark contrast to the immigration principles put forward by House Republican leadership in January and moves further away from the Democrat-controlled Senate actions to try to pass immigration reform. While those guidelines called for young undocumented immigrants who came to the United States as children — often referred to as Dreamers — to receive eventual citizenship, this bill could end the Deferred Action for Childhood Arrivals policy that keeps the same people from being deported.

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More than 500 leaders for the networks of young immigrants, frustrated with House Republicans’ failure to move on immigration this year so far, have decided to turn their protests on President Obama in an effort to pressure him to act unilaterally to stop deportations.

Months of lobbying, rallies and sit-in demonstrations have not brought any movement in the House on a pathway to citizenship for immigrants here illegally. The youths who gathered in Phoenix last week for an annual congress of the network, United We Dream, have voiced severe disappointment by Republicans and Democrats who seem to not be moving over political reasons more than a true desire to reform immigration. Pointing to Mr. Obama’s promise earlier this year to use his own powers when Congress would not move on this agenda, they now demand that he take executive action to increase protections for immigrants without papers.

“The community we work with is telling us that these deportations are ripping our families apart; this has to stop,” said Cristina Jiménez, the managing director of the network, the largest organization of immigrants who grew up in this country without legal status after coming as children and who call themselves Dreamers. “And we know the president has the power to do it.”

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Recently, USCIS posted on its website that those who were given DACA in August are coming up on the expiration of their deferred action.  The recent post notifies individuals that If you wish to renew your deferred action for another two year period, Form I-821D must be submitted to USCIS again.  This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization (along with the accompanying filing fees for that form, totaling $465), and Form I-765WS.

USCIS also warns that if your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action.  It is for these reasons that USCIS encourages submission for renewal 120 days before the current period of deferred action under DACA expires.

Also as a reminder, USCIS has issued further guidance on renewing DACA by stating “An individual whose case was initially deferred under DACA by ICE may be considered for Renewal of DACA from USCIS if he or she:

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On August 28, 2013, an application advisory on Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients was published by American Immigration Council Legal Action Center.

Based on the advisory, this article summarizes advance parole eligibility, application procedures and documentation requirements for DACA recipients.

I. Advance Parole Eligibility
Prior to applying for advance parole, an individual must apply for and receive a DACA approval. An individual is disqualified from DACA if he or she departs the United States at any time after August 15, 2012 unless he or she is first granted both DACA and advance parole. In order to receive advance parole, a DACA recipient generally must show that he or she is traveling abroad for humanitarian, employment, or educational purposes.

Humanitarian purposes relate to “travel for emergent, compelling, or sympathetic circumstances.” This category includes obtaining medical assistance, attending a funeral service for a family member, visiting a sick relative, or other urgent family-related purposes. Educational purposes include study abroad programs and academic research. Employment purposes include overseas assignments or client meetings, interviews, conferences, trainings in other countries, and travel needed to pursue a job with a foreign employer in the United States. USCIS construes the humanitarian, educational, and employment categories broadly. However, traveling abroad for vacation is not a valid purpose for advance parole.

II. Applying for Advance Parole
To apply for advance parole, a DACA recipient must submit Form I-131 to USCIS. The advance parole applicant must submit proof of DACA status – either a copy of the USCIS Notice of Action (Form I-797) showing a DACA approval or a copy of an approval order, notice or letter from U.S. Immigration and Customs Enforcement (ICE).

The filing fee is $360. In Part 4 of Form I-131, the DACA recipient must explain the purpose of the trip and the countries the applicant plans to visit. In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s).

DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad.

For a trip involving a humanitarian purpose, proper evidence includes but is not limited to the following:
• A letter from a medical professional explaining the reason for the need to travel abroad to obtain medical treatment;
• A letter from a hospital or treating medical professional explaining the relative’s ill condition; and/or
• A death certificate for a deceased relative.

For a trip involving an educational purpose, evidence includes but is not limited to the following:
• A letter from an educational institution explaining the purpose of travel abroad; or
• A document showing enrollment in a program or class and documents showing the applicant is required to travel for a program or class or will benefit from such travel.

For a trip involving an employment purpose, appropriate evidence includes but is not limited to the following:
• A letter from an employer explaining the need to travel abroad; and/or
• A document showing an employment need, such as a conference or training program, and showing the applicant’s participation.

A single Form I-131 may be used to request that the DACA recipient be allowed to leave and re-enter the United States multiple times. However, the recipient must show that each trip is intended to serve a humanitarian, employment, or educational purpose and explain why the
DACA recipient needs to travel multiple times.

Generally, USCIS does not grant expedited requests for advance parole for DACA recipients. However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

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In the Republican-led House, the question is which of the nation’s 11 million undocumented immigrants can eventually qualify for U.S. citizenship.

Last month, the Senate voted 68-32 to allow most of the nation’s undocumented immigrants to eventually apply for U.S. citizenship. But as the House continues to slowly consider small pieces of immigration, one bill at a time, Republican leaders proposed allowing only undocumented immigrants brought to the country as children to become citizens.

As Rep. Bob Goodlatte, R-Va. reasoned in his statements, the children known as DREAMers after a failed bill in Congress designed to help them, had no say in the decision to immigrate to the U.S. and know no other home than the United States. He then qualified his position by saying it was irresponsible to provide an avenue to citizenship for their parents.

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With the focus now shifted to the House to work on the immigration bill the Senate recently passed, it would seem like common sense that the situation for DREAMers would see some improvement since Obama instituted his own Dream Act. A recent look at the laws of some states clearly suggest otherwise.

One question came up once this policy was instituted was whether or not Dreamers should be able to apply for a driver’s license. Nearly every state has since reached the right conclusion, that Dreamers who now live here legally should be able to drive legally, too, as a straightforward matter of public safety and common sense. Some states have gone further to grant licenses to all qualified applicants regardless of immigration status. New Mexico and Washington already had such laws and were joined this year by Illinois, Oregon, Maryland, Vermont, Connecticut, Nevada and Colorado. California is considering doing the same. Utah issues a certificate to the undocumented that is valid for driving but not for identification. At least based on the actions of these states it appears that more states want to ensure that there are licensed drivers on the road that can be held accountable for anything that happens.

Arizona and Nebraska are two states that persist in keeping immigrants out of the driver’s seat, singling out Dreamers as ineligible for driver’s licenses. In Arizona, made infamous for its anti-immigrant laws, such action is all-but-official state policy. In Nebraska, Gov. Dave Heineman, said in a news release in August: “The State of Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”

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