DACA Reinstated, For Now, But Dreamers Still Left Hanging

Immigration LawOn January 13, 2018, the federal government, under a federal court order, reinstated the Obama-era Deferred Action for Childhood Arrivals (DACA) for certain individuals who currently hold or previously held DACA. DACA provides temporary protection from deportation and work authorization for qualifying individuals and was rescinded by the Trump administration on September 5, 2017. Now, however, the DACA policy that reigns is the one that was in effect prior to rescission, which is a breath of fresh air for many DACA-mented individuals who were left with no status or whose status expiration loomed in the future. This is also a breath of fresh air for employers employing individuals with DACA.

The Trump administration is appealing the federal court order that reinstated DACA. It is very important that those who now qualify to renew DACA apply as soon as possible. Below are the guidelines in effect:

  • Individuals whose DACA status expired on or after September 5, 2017, may now file a renewal request with United States Citizenship and Immigration Services (USCIS).
  • Individuals whose DACA expired before September 5, 2017, or whose DACA was previously terminated, may request DACA. However, the request must be filed as an initial request with all of the supporting evidence showing the person meets the DACA eligibility requirements as initially laid out by the Obama administration in the June 2012 memo.
  • Individuals who never received DACA may not submit a renewal or an initial request.

The bipartisan Dream Act was first introduced in 2001. Congress still has not acted to protect this group of young people even though the majority of constituents and members of Congress support measures to protect Dreamers. Many individuals held hope that the latest government shut down would fuel Congress to finally act, but the latest deal did not address the Dream Act and instead moved it to the Senate’s February agenda. Not only are Dreamers standing by for Congress to act, but they also hold hope that when Congress does act, it will be by passing a “clean” Dream Act. So, what options are on the table? Below is a list of proposed legislation affecting Dreamers.

The 2017 Dream Act has the most bipartisan support. It provides a pathway, albeit a long pathway, to citizenship for Dreamers who came to the country before the age of eighteen, have been physically present in the United States for at least four years, meet certain educational requirements, have not been convicted of certain enumerated crimes, and who are not subject to certain grounds of “inadmissibility” listed in the Immigration and Nationality Act (INA). Such qualifying individuals may apply to become Conditional Permanent Residents (CPR). Then, after complying with another list of conditions, including meeting a developmental milestone, such as obtaining a college degree, two years of service in the military, or three years of employment, the CPR may apply for the coveted “green card” or Lawful Permanent Resident (LPR) status. Once the individual has been an LPR for five years, he or she becomes eligible to naturalize to become a U.S. citizen.

The BRIDGE Act does not provide a pathway to citizenship for DACA recipients, but allows individuals who came to the United States before 16 years of age and who were born on or after June 15, 1981, to apply provisional protected presence (PPP). The individual must also comply with certain educational, physical presence, and security requirements. PPP is valid for three years after the date of enactment of the BRIDGE Act.

The American Hope Act of 2017 provides a pathway to citizenship by allowing those who entered the country before the age of 18, have not been convicted of a crime which makes him or her inadmissible, and who have continuous physical presence in the United States since December 31, 2016, to apply for CPR status. After three years in CPR status, the applicant may then apply for LPR status. Once the applicant has obtained five years in status (CPR or LPR) he or she may then apply to naturalize to become a U.S. citizen. There is no education or employment requirement in the Hope Act.

The Recognizing America’s Children Act provides a pathway to citizenship by allowing those who entered the U.S. prior to the age of 16, received a high school diploma or went to college, have employment authorization, and who have not been convicted of certain crimes to apply for CPR status. After five years in CPR status, individuals may apply to extend such status if they meet certain requirements including graduating from an institution of higher education, working for 48 months, or being on active duty for at least three years. Once CPR status is renewed, the CPR may then apply for LPR status. After five years in LPR status, the individual may then apply for naturalization to become a U.S. citizen.

The SUCCEED Act provides a pathway to citizenship by allowing individuals who entered the country before the age of 16, were born after June 15, 1981, and have been physically present in the United States since 2012 to apply for CPR status. CPR status will be granted for five years. To qualify for naturalization, the CPR must be in CPR status for 10 years, then apply for LPR status, then be in LPR status for another five years. While the individual is in LPR status, he or she may not petition for family members, which is a benefit all other LPRs enjoy. An additional downfall is that if the individual accepts CPR status and subsequently violates such status and is placed in removal (deportation) proceedings, he or she must agree to waive most forms of relief from removal.
For now, though, Dreamers wait and hope for favorable legislation.