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Executive Action on Immigration – DACA and DAPA Updates

**01/19/2016 U​PDATE:** On January 19, 2016, the U.S. Supreme Court agreed to review the lower courts’ decisions to block the President’s November 2014 executive orders on immigration. Oral argument will take place in the Spring, and a decision from the Supreme Court is expected by the end of June 2016.

The November 2014 executive order was proposing to expand the existing Deferred Action for Childhood Arrivals (DACA) program, which benefits certain undocumented youth who came to the U.S. before the age of 16, to provide them with temporary work authorization. The executive order also proposed to introduce a similar temporary benefit to some undocumented individuals who are parents of U.S. citizens or permanent residents – Deferred Action for Parents of Americans (DAPA). The expanded DACA was set to begin in February 2015, while the newly proposed DAPA program was expected to be implemented in May 2015. However, a coalition of 26 state governors filed a lawsuit in a Texas federal district court seeking to block both programs from being implemented. In February 2015, the Texas federal court agreed with the 26-state coalition and issued an injunction, preventing DAPA and the expanded DACA from being implemented. The Obama administration appealed to the Fifth Circuit Court of Appeal, which did not disturb the district court’s decision. As a result, the Obama administration escalated the matter to the U.S. Supreme Court, which agreed to hear the case.

**05/27/2015 UPDATE:**
On May 26, 2015, the U.S. 5th Circuit Court of Appeals denied the U.S. government’s request to lift the Texas federal judge’s temporary injunction blocking the Obama administration’s November 20, 2014, executive order on immigration. The government had requested that the Texas judge’s injunction be lifted pending appeal. In light of the 5th Circuit decision, the administration is unable to implement its proposed Deferred Action for Parents of Americans (DAPA) or the extended version of the Deferred Action for Childhood Arrivals (DACA), while the underlying appeal remains pending.

**02/18/2015 UPDATE:**
On February 16, 2015, the United States District Court for the Southern District of Texas entered a preliminary injunction order which temporarily blocks USCIS from implementing its expanded DACA policy or the new DAPA policy previously announced on November 20, 2014. Following the U.S. District Court’s order, USCIS announced on February 17, 2015, that it would temporarily suspend implementation of its expanded DACA and DAPA policies until further notice. You may ready the press release issued by USCIS regarding this matter at http://www.dhs.gov/news/2015/02/17/statement-secretary-jeh-c-johnson-concerning-district-courts-ruling-concerning-dapa. Therefore, at this time, USCIS is not accepting applications under the expanded DACA program on February 18, 2015, as originally planned. USCIS is, however, still accepting applications for individuals qualifying under the original DACA policy issued on June 15, 2012.


ORIGINAL ARTICLE
On November 20, 2014, President Obama issued an executive order expanding the Deferred Action for Childhood Arrivals (DACA) that was originally instituted in 2012. Pursuant to DACA, certain individuals who are present in the U.S. without legal status may request consideration of deferred action as well as temporary employment authorization. The original DACA program that was issued in 2012 provided deferred action and employment authorization to eligible individuals for a period of two years, with the possibility of renewal.

Pursuant to President Obama’s executive order issued on November 20, 2014, the DACA program is being extended to offer deferred action and employment authorization to eligible individuals for a period of three years instead of two. The November 20, 2014, executive order also modified and expanded some of the eligibility requirements for DACA, but stated that USCIS was not yet accepting any applications under the expanded program.

On January 29, 2015, USCIS announced that it will begin accepting applications for the expanded DACA program on February 18, 20151. The basic eligibility requirements under the expanded DACA are:


  1. You came to the United States before your turned 16 years old;

  2. You have continuously resided in the United States since January 1, 2010;

  3. You were physically present in the United States on June 15, 2012 and at the time of filing the request for DACA;

  4. You had no lawful status as of June 15, 2012;

  5. You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

  6. You have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Applications for deferred action and employment authorization under DACA will be decided by USCIS on a case-by-case basis. Therefore, it is very important that individuals consult with an experienced immigration attorney before submitting any documents to USCIS.

President Obama’s November 20, 2014, executive order also modified the U.S. Government’s enforcement priorities related to the type of individuals who should be removed or deported from the U.S. Therefore, before filing any applications with USCIS, it is vital that individuals consult with an experienced immigration lawyer to make sure they do not fall within the new enforcement priorities. For additional information regarding the expanded DACA program,or to find out if you are eligible to apply, contact Attorney Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.

1 USCIS has not yet announced a starting date for applications under Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was also part of President Obama’s November 20, 2014, executive action plan. The February 18, 2015, start date for receiving applications is only for the expanded Deferred Action for Childhood Arrivals (DACA) program.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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