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.

 

United States Immigration Series Post No. 5 Fiancé / Fiancée & Marriage Visas to the United States

Francisco A. Laguna & Annapurna Nandyal

For the next two weeks, we continue our series on immigration and visas for the United States. Today, we will discuss fiancé / fiancée and marriage visas.

Foreign nationals living abroad who intend to marry a United States citizen and migrate to the US have two visa options available to them. Option one allows the foreign national to enter United States on a K-1 visa – a fiancé visa – and later, while in the US, marry and apply for legal permanent residency. The second option allows foreign nationals to marry US citizens abroad and apply for an immigrant or nonimmigrant visa after marriage.

US Embassy in Kuala Lampur, Malaysia
Photo Credit: Gryffindor via Wikimedia Commons

The different types of K-visas are:

• K-1: Fiancés or fiancées of US citizens coming to the US for purpose of getting married
• K-2: Minor, unmarried children of K-1 visa holders
• K-3: Visa for foreign spouse of a US citizen
• K-4: Unmarried children of K-3 visa holders

K-1 Fiancé / Fiancée Visa:

The K-1, or fiancé / fiancée, visa is a temporary (nonimmigrant) visa issued to the fiancé of a US citizen that allows a person to enter the US to get married. A K-1 visa requires a foreigner to marry his / her US citizen petitioner within 90 days of entry. In case the marriage does not take place, the foreign national must depart the United States within 30 days of the expiration of the 90-day period to wed.

The requirements to file for a K-1 visa are as follows:

The petitioner must be a US citizen; non-citizens, including green card holders, cannot apply for a K-1 visa.

US Embassy in New Delhi, India
Phoyo Credit: Soumya S Das via Wikimedia Commons

• The petitioner and K-1 visa holder must be legally eligible to marry under the laws of the fiancé/ fiancée’s country as well as the laws of the US.
• The petitioner must have met the fiancé/fiancée within the last 2 years before filing for the visa (this requirement can be waived under special circumstances).
• The petitioner must be able to financially support the beneficiary.
• The beneficiary must be living outside US to qualify for a K-1 visa.
• The visa holder’s main intention for entering the US must be to marry the US citizen / petitioner.
• The beneficiary may not have a record of past violations of US immigration law.

The advantages of a K-1 visa are that it allows the foreign national to enter the U.S. before the marriage and remain here during the time required to adjust status to legal permanent resident. Technically speaking, the K-1 visa is a nonimmigrant visa, but it actually serves as an immigrant visa. Once in US, the beneficiary can file for work permit to seek legal employment. Though the K-1 visa process is faster than most of the immigrant visas, it can take 90 days, or more, to obtain a work permit.

K-3 Marriage Visa:

US Embassy in Paris, France
Photo Credit: Krokodyl via Wikimedia Commons

US citizens who marry foreign nationals abroad and wish to bring their spouses to the United States can apply for a K-3 visa, which is far more preferable than applying for immigrant / green card status from abroad. K-3 visas are for spouses of US citizens who are eligible to immigrate but whose immigrant visa petitions have yet been approved. Same sex spouses are now eligible for K-3 visas. K-3 visas allow entry to the US for two years, pending approval of the spouse’s adjustment of status to legal permanent resident / green card holder. If the petition is not approved in the first two years after the K-3 visa holder’s admission, the visa may be extended by two-year increments until residency is issued.

To prevent fraudulent marriages, the US Citizenship & Immigration Services enforces strict requirements to prove a valid marriage. Requirements for K-3 visa are:

• The spouse is a legally wedded husband or wife.
• The marriage entered must be based on love and not for citizenship.
• The couple must demonstrate joint property ownership, joint bank accounts, joint financial management, etc.
• The petitioner must have filed certain documents for adjustment of status for his / her spouse with the USCIS before K-3 visa can be granted.

K-1 visa and K-3 visa documentation can be complicated, and the process is document sensitive. TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.