US Immigration and New York Employment Law

Immigration News: DAPA and Expanded DACA in Limbo

On November 20, 2014 Obama announced his executive actions on immigration, which are widely considered to be an attempt to reform the US immigration system. The major points of these initiatives are as follows:

1. A new Deferred Action for Parents of US Citizens and Lawful Permanent Residents also known as Deferred Action for Parental Accountability (DAPA), which allows parents of US citizens and permanent residents to stay legally in the country and get an employment authorization for 3 years.

2. The Deferred Action for Childhood Arrivals (DACA) now includes those who arrived to US before the age of 16 and lived here since January 1, 2010.

3. Spouses, sons and daughters of permanent residents and sons and daughters of US citizens may use provisional waivers of unlawful presence.

In other words it’s mainly about expanding already existing DACA and creating a new DAPA program. The DAPA provides relief for illegal immigrants living in the USA and having children who are either a US citizen or lawful permanent resident (LPR).
In order to be eligible this category of illegal immigrants should meet the following guidelines:
(a) You have resided in the US continuously since or before January 1, 2010;
(b) On November 20, 2014 you have a son or daughter who is either a US citizen or LPR;
(c) You are physically present in the US on November 20, 2014 and at the time of making a petition for DAPA;
(d) You have no legal status in the US on November 20, 2014;
(e) Are not an enforcement priority for removal from the US under Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum (threats to national security and public safety, convicted of felony or three or more misdemeanor offenses and other immigration violations).

The DAPA is supposed to be implemented on a case-by-case basis including a thorough background check. Although it provides a temporary relief from removal from the USA, it does not provide an immigration status. The DAPA should be implemented starting from February 18, 2015. However, it did not happen, because of a federal judge’s injunction. On February 16, 2015 US District Court Judge in Texas ruled against implementation of the DAPA and expansion of the DACA programs.

As a result, now “due to a federal court order” USCIS is not accepting “requests for the expansion of DACA” from February 18, 2016 as originally planned and “has suspended implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents” – DAPA. At the same time the federal court’s injunction of February 16, 2015 does not affect the existing DACA program, and the qualified individuals may file initial requests or renewals under the DACA.

On November 9, 2015 the 5th Circuit Court of Appeals in New Orleans reaffirmed the District Court Judge’s decision. Obama administration appealed to the Supreme Court, and the court made an announcement that it would take the case – United States v. Texas. Now it’s up to the highest court of the country to decide the legitimacy of Obama’s immigration actions.

After death of Justice Scalia the Supreme Court has four liberal and four conservative justices. Technically speaking President Obama can and is supposed to nominate a new justice before his presidential term ends. On the other side, the Republican controlled Senate already made it clear that it would block any president’s nominee.

The court should rule on legality of the DAPA and other Obama’s immigration initiatives by the end of June 2016. However, if it is a tie 4-4 vote it won’t be a precedent and the issue will probably be considered once again after the ninth member of the Supreme Court is nominated by President and approved by Senate. If the Supreme Court makes a decision against Obama’s executive actions, both the DAPA and expanded DACA will be revoked. Then it will be up to Congress to enact new immigration laws to address the problem of 11 million illegal immigrants in this country.

In the meantime Obama’s immigration reform, including the DAPA and expanded DACA, is in limbo. Now everything depends on the Supreme Court’s decision and an outcome of the presidential elections.