Visa Lawyer Blog

Articles Posted in Deferred Action and DREAM Act Students

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Good news for DACA recipients. The Biden administration recently announced a plan to expand health care coverage to Dreamers through the Affordable Care Act health insurance marketplace.

President Biden has directed the Department of Health and Human Services to propose a rule in the Federal Register that would amend the definition of “lawful presence” to include DACA recipients, so that they may be considered lawfully present to be eligible to enroll in a health care plan through the Affordable Care Act or Medicaid.  The proposed rule is expected to be published as soon as end of the month.

If finalized, the rule would make DACA recipients eligible for Medicaid and the Affordable Care act for the first time ever.

The proposal will allow DACA recipients to apply for coverage through the Health Insurance Marketplace, where they may qualify for financial assistance based on income, and through their state Medicaid agency.  Like all other enrollees, eligibility information will be verified electronically when individuals apply for coverage.

In a video released on the President’s twitter page he stated, “We need to give Dreamers the opportunities and support they deserve. Today, my administration is announcing our plan to expand health coverage for DACA recipients by allowing them to enroll in a plan through the Affordable Care Act or through Medicaid.”

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DACA recipients can now breathe a sigh of relief. We are happy to report that the Department of Homeland Security recently published a final rule in the Federal Register, taking a major step to safeguard the Deferred Action for Childhood Arrivals (DACA) program, while the fight to uphold DACA is in litigation.

What does this mean?

The final rule officially took effect on October 31, 2022, to codify existing policy, preserve, and fortify DACA.

This means that effective October 31, 2022, pursuant to the final rule, the U.S. Citizenship, and Immigration Services (USCIS) will accept and process renewal DACA requests and accompanying requests for employment authorization (EAD), consistent with court orders and an ongoing partial stay. Currently, valid grants of DACA, related employment authorization, and advance parole will continue to be recognized as valid under the final rule. Those with pending DACA renewal applications, do not need to reapply.

USCIS will also continue to accept and process applications for advance parole for current DACA recipients and will continue to accept but will not process initial (new) DACA requests.

Pursuant to an injunction and partial stay, handed down by the U.S. District Court for the Southern District of Texas, DHS is prohibited from granting initial (new) DACA requests and related employment authorization under the final rule.

While this is a temporary measure to protect existing DACA benefits, Secretary of Homeland Security, Alejandro Mayorkas stated, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

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In the latest legal saga concerning the Deferred Action for Childhood Arrivals (DACA) program, a federal appeals court has declared the DACA program illegal, causing uncertainty for the future of the program.

Yesterday, the three-judge panel for the 5th Circuit Court of Appeals handed down a ruling in which it found that the Obama administration did not have the legal authority to create the DACA program in 2012. The Circuit Court ruling affirms a previous ruling handed down by U.S. District Court Judge Andrew Hanen of the Southern District of Texas which halted the Biden administration’s plans to revive the program last year.

While the panel declared the DACA program illegal, it stopped short of ordering the Biden administration to completely invalidate the program for those with existing DACA benefits, or those seeking to renew those benefits. For the time being, DACA policy remains intact for current beneficiaries, allowing U.S. Citizenship and Immigration Services (USCIS) to continue to accept and adjudicate renewal requests. However, USCIS is prohibited from approving initial applications for DACA, and accompanying requests for employment authorization.

What happens next?

The appeals court has sent the lawsuit back to U.S. District Judge Andrew Hanen, the same judge that previously ordered a nationwide injunction preventing the approval of new DACA applications. Judge Hanen will review the legality of the program under the Biden administration’s policy memorandum which includes revisions to the program.

Sadly, it is unlikely that Judge Hanen will rule in favor of the Biden administration which will likely result in a formal appeal sent to the United States Supreme Court, where chances of its survival hinge on a conservative leaning court. Judge Hanen previously found the program illegal because the government failed to follow the notice and comment periods required by the federal Administrative Procedures Act. In 2016, the Supreme Court deadlocked in a 4-4 decision over expanding DACA to parents of DACA recipients, keeping in place a lower court decision preventing its expansion.

The appellate court’s decision will have long-lasting repercussions, as it forces members of Congress to safeguard the future of the program by passing legislation to settle the matter once and for all. While the topic has been argued for the past decade on Capitol Hill, no meaningful steps have been taken to preserve the program and create a path to residency for Dreamers.

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DACA Renewal E-Filing is here!

Exciting news is on the horizon for those filing a renewal of their deferred action under the Deferred Action for Childhood Arrivals (DACA)!

This week, the United States Citizenship, and Immigration Services (USCIS) announced that applicants will now be able to file their applications online on Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Additionally, renewal applicants may also file applications to renew their Employment Authorization Document (EAD) online by filing Form I-765 Application for Employment Authorization and the Form I-765 Worksheet.

This move will now make it easier for applicants to obtain a renewal of their status faster and more efficiently.

While the agency hopes to expand the possibility of electronic filing to a broader pool of applicants in the future, the e-file option is currently only available for individuals who have been previously granted DACA.

The e-filing option is expected to help reduce the substantial backlogs at the USCIS level. Currently, USCIS receives nearly half a million Form I-821D DACA requests every fiscal year, and processes more than 8.8 million requests for immigration benefits. As time has gone on, the agency has allowed online filings to streamline the application process.

How can you file online?

DACA renewal applicants who wish to file Form I-821D and Form I-765 online, must first create a USCIS online account, to submit their forms, pay fees and track the status of any pending USCIS immigration request throughout the adjudication process. There is no cost to set up an account, and one of the added benefits is that applicants have the ability to communicate with USCIS through a secure inbox and respond online to Requests for Evidence received.

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Happy Valentine’s Day! Welcome back to Visalawyerblog. In this blog post, we share with you some important updates in the world of immigration. But first, we hope you are having a wonderful holiday spent with friends and loved ones.

What’s New?

USCIS Updates its Guidelines to Increase Validity Period of Employment Authorization Documents for Certain Applicants

Last week, the U.S. Citizenship and Immigration Services announced new updates to its policy changing the maximum validity period granted to certain individuals applying for Employment Authorization Documents (EADs), also known as work permits.

Effective February 7, 2021, USCIS has announced that it will generally grant new and renewed EADs valid for a 2-year validity period to applicants in the following categories:

  • Admitted as a refugee (a)(3);
  • Granted asylum (a)(5);
  • Granted withholding of deportation or removal (a)(10); and
  • VAWA self-petitioner (c)(31).

USCIS will also be granting new and renewed EADs up to the end of the parole or deferred action period to applicants in the following categories:

  • Paroled into the United States for urgent humanitarian reasons or significant public benefit (c)(11); and
  • Granted deferred action (non-DACA) (c)(14).

This benefit will apply to those in the impacted categories seeking new and renewed EADs issued on or after February 7, 2022. EADs issued on or after this period will reflect the updated 2-year validity period. EADs issued prior to February 7, 2022, will not benefit from the change.

Why the change?

USCIS has said that this validity period extension will help ease processing backlogs because these applicants will no longer need to apply to renew their EADs every year. It will also help prevent interrupts in employment authorization.

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This week brings positive immigration news indeed. We are happy to report that the United States Citizenship and Immigration Service (USCIS) has updated its policy guidelines regarding validity periods for Employment Authorization Documents (EADs) for asylees and refugees, noncitizens with withholding of deportation or removal, noncitizens with deferred action, parolees, and Violence Against Women Act (VAWA) self-petitioners.

What is the new policy all about?

In the new policy alert, USCIS points out that under current guidelines the agency has been issuing initial and renewal Employment Authorization Documents (EADs) with a 1-year validity period, to asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners.

Furthermore, in at least some cases involving deferred action or parolees, initial and renewal EADs are being issued for an even shorter duration, than that of the underlying deferred action or parole period, forcing applicants to file multiple applications for Employment Authorization to prevent employment gaps to cover their entire period of deferred action or parole.

The government is now recognizing its incredible inefficiency and is changing its policy to align with the Biden administration’s agenda. The USCIS policy manual has now been revised to state that initial and renewal EADs may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners. For deferred action and parolee applicants, USCIS will now issue EADs up to the end of the authorized deferred action or parole period for individuals seeking an EAD in these filing categories.

Please note that replacement EADs will not be affected by this policy change.  USCIS will continue to issue replacement EADs with the same validity date as the original EAD.

When is this new policy effective?

The updated policy guidance, contained in Volume 10, Part A of the USCIS Policy Manual, is effective as of today Monday, February 7, 2022.

Accordingly, USCIS will immediately apply the updated validity period guidelines to EADs issued for impacted categories on or after February 7, 2022.

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You have all heard the news. A new House bill has been introduced that if passed would provide a pathway to citizenship for millions of undocumented immigrants living in the United States without legal status. But what exactly does the bill include? In this blog post we share with you the highlights of the America’s Children Act of 2021 also known as H.R. 4331.

Bill Highlights

Among the highlights of America’s Children Act of 2021 the bill:

  • Provides a pathway to permanent residency for individuals who were brought to the United States at a young age, TPS recipients, individuals under DED status, and essential workers, who have maintained continuous physical presence in the United States since their entry, and/or have graduated from an institution of higher education;
  • Establishes protections for Diversity Visa lottery winners who could not come to the United States from 2017 to present due to COVID-19 related delays;
  • Creates special provisions to recapture unused visas and provides a waiver of numerical limitations for beneficiaries of approved immigrant visa petitions currently waiting for their priority dates to become current

Who would benefit?

The main section of the bill would provide a pathway to citizenship for people in DACA (Deferred Action for Childhood Arrivals) status and also people who may not have qualified for DACA. Individuals in Temporary Protected Status and those who received Deferred Enforced Departure would also be eligible. Qualifications differ among these groups and many more changes are expected however the key provisions have been mentioned above. To obtain permanent residence, individuals cannot be disqualified based on grounds of ineligibility and must complete “security and law enforcement background checks” and a medical examination.

Pathway to Citizenship for Dreamers

Under the committee print released by the House Judiciary Committee, certain aliens would be eligible to adjust their status to permanent residence within the United States, by paying a supplemental fee of $1,500 and passing criminal checks. To be eligible, an alien would have to show that he or she:

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The fate of nearly 8 million undocumented immigrants now rests in the hands of Senate Parliamentarian, Elizabeth MacDonough.

On Friday, September 10, 2021, Democratic Congressmen, and women, met with the Senate staffer in hopes of convincing her to allow a piece of legislation to be introduced in the Democratic party’s upcoming $3.5 trillion spending bill, which would, for the first time in decades set in motion the implementation of comprehensive immigration reform.

The spending bill includes a provision that would carve out a pathway to citizenship for “Dreamers” participating in the Deferred Action for Childhood Arrivals Program (DACA) that were brought to the United States illegally as children. The bill would also open a door for legalization to recipients of Temporary Protected Status, farmworkers, and certain undocumented workers deemed “essential.” It is estimated that nearly 8 million undocumented immigrants would qualify for permanent residence through this proposal, offering the first big victory for comprehensive immigration reform.

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Welcome back to Visalawyerblog! We are happy to bring you the latest immigration updates recently announced by the United States Citizenship and Immigration Services (USCIS).

USCIS Guidance Following DACA Permanent Injunction in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021)

USCIS has announced on its official webpage that consistent with the permanent injunction granted by the U.S. District Court for the Southern District of Texas on July 16, 2021, declaring DACA policy illegal, USCIS is prohibited from granting initial requests for first time DACA applicants, and accompanying requests for employment authorization.

However, USCIS will continue to accept both initial and renewal DACA requests but will not be able to adjudicate requests for first time DACA applicant’s pursuant to the court order.

Renewal filings for those who have received DACA benefits in the past, will continue unaffected by the court order, and USCIS will continue to adjudicate renewal requests, and accompanying renewal requests for employment authorization as before.

What’s next? The Department of Justice will be appealing the District Court’s decision and the Biden administration is urging Congress to pass the American Dream and Promise Act of 2021.

Read Biden’s Statement responding to the Court’s injunction here.

Applicants Filing Change of Status Applications to F-1 No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’

We are happy to report that USCIS recently ended the “Bridge the Gap” policy. Previously, prospective students with a current nonimmigrant status in the United States, that was set to expire more than 30 days before their F-1 program start date, were required to “Bridge the Gap,” by filing Form I-539 with USCIS to request an extension of their current status, or a change to another status ensuring that they would not have a “gap” in status.

Effective July 20, 2021, USCIS announced that individuals who have applied for a change of status to F-1 student, will no longer need to “Bridge the Gap,” while their initial F-1 change of status application is pending with USCIS.

To prevent a “gap” in status, USCIS has said that it will now grant the change of status to F-1 effective the day the applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status is approved. If USCIS approves an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time (such as engaging in unauthorized employment, more than 30 days before the program start date as listed on the Form I-20.)

These changes have been introduced to decrease current backlogs and USCIS workloads. A revision of the Form I-539 instructions will soon be published to reflect these new policy changes.

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We are saddened to report that late Friday, July 16, 2021, Federal Judge Andrew Hanen of the United States District Court for the Southern District of Texas, granted the plaintiffs in the case, State of Texas, et al., vs. United States of America, et.al, a permanent injunction, pending ongoing litigation over the legality of the Deferred Action for Childhood Arrivals (DACA) program.

As a result, new first-time applications for the DACA program will no longer be approved by the United States Citizenship and Immigration Services (USCIS) following Judge Hanen’s ruling.  Friday’s decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld, especially by the conservative leaning Supreme Court of the United States.

In his ruling, Federal Judge Hanen declared that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) with the initial creation of the Deferred Action for Childhood Arrivals (DACA) program and its continued operation. Accordingly, he has ordered that the DACA Memorandum and the subsequent creation of the DACA program be vacated and remanded to DHS for further consideration.

This action removes protections from deportation for thousands of undocumented young adults who came to the United States as children, otherwise known as Dreamers, and casts doubt on the future of the program.

Judge Hanen specifically stated that his ruling does not impact the hundreds of thousands of DACA recipients and others who have relied on the DACA program for almost a decade. This means that while new first-time applications for DACA will no longer be adjudicated by USCIS, Hanen’s ruling will not impact current DACA recipients.

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