DACA and DAPA Immigration Programs — Part II

United States Immigration Series

Post No. 10

Francisco A. Laguna & Annapurna Nandyal

Today’s post continues our prior discussion of the Obama Adminstration’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs.

In November 2014, as part of the Immigration Accountability Executive Action, the Obama Administration announced the expansion of the existing 2012 DACA program and introduced the DAPA program.

“Immigration Reform Leaders Arrested 5” by Arasmus Photo – Immigration Reform Leaders Arrested in Washington DCUploaded by Chzz. Licensed under CC BY 2.0 via Wikimedia Commons

DACA was expanded by removing the upper age limit which previsously excluded  persons older than 31 on the date of announcement (i.e., those born before June 15, 1981) from applying for the program.  DACA will now apply to all eligible immigrants who entered the US before the age of 16, regardless of how old they are now.  The second benefit of expanding the DACA program is increasing the term of the employment authorization to three-year increments, rather than two years. Finally, the eligibility cut-off date by which a DACA applicant must be in US was extended from June 15, 2007 to January 1, 2010.

Obama’s executive action has resulted in a multi-state lawsuit filed in a Texas federal court to block the immigration order from taking effect. The case, Texas v. United States, has 26 states challenging Obama’s immigration order by contending that the President overstepped his constitutional authority by acting unilaterally. The plaintiffs argue that the executive actions are in violation of Take Care Clause of the US Constitution and the Administrative Procedure Act (APA) as there was no formal notice-and-comment procedure. In addition, the plaintiffs claim that the stay from deportation of the undocumented immigrants who would benefit under the DACA and DAPA programs would place an undue economic and financial burden on the states. The Texas federal court ruled in favor of plaintiffs and halting implementation of DAPA and the expansion of DACA pending further judicial review.

“Oblique facade 3, US Supreme Court” by Daderot – Own work. Licensed under Public Domain via Wikimedia Commons

However, the court’s preliminary injunction does not prevent USCIS from accepting applications under the original 2012 DACA program. The federal government appealed the Texas court ruling before the Fifth Circuit in New Orleans.  Oral arguments were held July 10th 2015 is set for oral arguments. The case has the potential to land in the Supreme Court by next year.

This landmark case has divided the nation cutting across sections of the society, and the recent anti-Mexican immigrant rants from Donald Trump have deepened that division. Though half of the US states have opposed the reforms, many support the implementation of DAPA and DACA. Proponents of the case include 15 states and District of Columbia, besides many immigration rights groups, businesses and trade associations. They have filed “amicus curie” or “friend of the court” briefs touting the economic, electoral and, most importantly, family benefits these immigration reforms could bring.

Recent studies by independent agencies, like the Council of Economic Advisers, show DAPA and DACA reforms would bring substantial benefits to the states and nation, as a whole. Under these programs, certain immigrants are granted work permits which would lead to higher wages, opportunities to find jobs that match the immigrants’ abilities, greater economic productivity and greater tax revenues.  By implementing DAPA alone, there would be an increase in gross domestic product (GDP) by between $90 and $210 billion in 2024.  There would be also roughly 21,000 jobs per year created over the next 10 years, and payroll taxes would increase by $16.7 billion over next 5 years.

The Obama’s Administration’s main purpose for introducing DAPA and DACA is to provide immediate relief to families who would no longer live in fear that their loved ones could be detained or deported at any time.  It provides much needed family stability to undocumented immigrants in the US and would also allow their children, many US citizens, to grow up in the US.  Studies estimate that approximately 5 million undocumented immigrants would benefit by reuniting with their families.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Apart from the economic gains to the nation, DAPA and DACA have key electoral implications. Many who are eligible for the DAPA program are Latino and Asian immigrants who could form a significant voting block during the 2016 presidential elections. These voters could affect election results, especially in swing states.

As the debate over the pros and cons of DAPA and DACA continues, the presidential candidates for 2016 election should clearly articulate their position on these executive reforms in a meaning manner.  The current hate speech is neither helpful nor constructive:  it does nothing to find permanent solution to fix our immigration laws.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

 

H-4 Visa Holders Can Apply for Employment Authorizations (under Limited Circumstances)

United States Immigration Series

Post No. 8

Francisco A. Laguna & Chenai Rusike

On May 26, 2015, the US Court of Appeals for the 5^th Circuit in New Orleans refused to lift an injunction on President Obama’s executive action to stay the deportation of over 4 million illegal immigrants and issue such immigrants work permits. This was a key component of the President’s immigration reform proposals. The 2-1 decision by the 5^th Circuit casts doubt over the success of President Obama’s proposed immigration reform, especially as the 2016 election season approaches.

US Immigration Passport Stamp by Pmkpmk (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

May 26^th, however, also marked a positive step for immigration reform in the United States. As of May 26, 2015, H-4 dependents are now eligible to apply for an Employment Authorization Document (EAD) to work in the United States. H-4 visa holders come into the country as defendants of H-1B visa workers. To be eligible for an H-4 visa, an applicant must be the spouse or the unmarried child under the age of 21 of an H-1B visa holder.  Prior to May 26^th, an H-4 dependent could not work in the United States.  Rather, they were limited to furthering their education during their stay in the US.

H-4 dependents are oftentimes also highly skilled individuals, who, as of May 26^th, are able to participate and contribute to the American economy. Immigrants are more likely to start businesses, which shall provide new jobs for the economy. Secretary of Commerce, Penny Pritzker, as a guest blogger on the Department of Commerce website stated that “Immigrants started one of every four small businesses and high-tech startups across America, and more than 40 percent of Fortune 500.”

Many H-1B visas are issued to highly skilled STEM (Science, Technology, Engineering and Mathematics) professionals. STEM professionals tend to create jobs through their innovative work.

US Immigration Rates by Country 2001 -205 by BGManofID at English Wikipedia [Public domain], via Wikimedia Commons

Prior to May 26, 2015, many highly skilled foreign nationals were attracted by the possibility of coming to the US possibly to work for a Fortune 500 company or a top tier high-tech firm.  However, after weighing the pros and cons, many decided to choose other countries that compete with the US in their respective industries because those countries offered more attractive non-immigrant visa restrictions.  This forced US companies to increase compensation packages offered to potential H-1B candidates to make up for the salary gap resulting from their spouses’ inability to work while in this country.  By allowing the dependents of H-1B visa holders the opportunity to work in the US, US companies can now offer lower compensation packages to those visa holders.

Equally important, this new reform will likely improve the morale of the home.  For some H-4 dependents, not being able to contribute to the home has been the cause of physical and mental abuse in the home. These H-4 dependents were at the mercy of their H-1B spouses, who would threaten to divorce them or, threaten not to extend their H-4 Visa. Today, they have been given a new voice in their home.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Although this is a step in the direction of immigration reform, the ability of an H-4 visa holder to apply for an EAD is quite limited and continues to be dependent on the status and position of the H-1B worker. To be eligible, the H-1B spouse must be in the United States for over 6 years, or have filed a petition to change status to a legal permanent resident, known as an I-140 Immigrant Petition for Alien Worker.  The I-140 is filed by the H-1B worker’s US employer.  In addition, there are yearly quotas for EADs available to H-4 dependents.  For the first year of the program, the quota shall be 179,600; for subsequent years, the quota falls to 55,000.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.