EB-5 and Trump 2.0

As President-elect Trump takes office again on January 20, 2025 all immigration is up in the air. The EB-5 Immigrant Investor Program is no exception. Immigration is one of Trump’s top priorities so EB-5 investors should be prepared for changes and take advantage of the program.

Some see opportunities for growth and stability, others see challenges and slowdowns, but potential reforms could attract investors eager for a favorable environment and a more efficient application process.

EB-5 Under Trump?

Trump’s second term will be a mixed bag for EB-5:

Opportunities:

  • Business friendly policies, tax cuts and deregulation will create an investment immigration friendly environment.
  • A merit based system will streamline the process and attract high net worth investors.
  • Global alliances and support for emerging markets like cryptocurrency will create more investment opportunities.

Challenges:

  • Previous delays and strict adjudication policies still a problem for EB-5.
  • Travel bans and increased scrutiny during Trump’s first term showed us we need clear and consistent policies that prioritize economic growth, which has created uncertainty for foreign investors contemplating opportunities in the U.S.

For EB-5 investors, Trump 2.0 may mean a focus on economic contributions and business growth. By fixing inefficiencies and innovation the administration can make the US the go to destination for investment immigration.

This guide looks at the history, what to expect under Trump 2.0 and strategic advice for investors.

EB-5 Immigrant Investor Program

The EB-5 program was created in 1990 to stimulate economic growth in the US through foreign investment and in return provide permanent residency (green cards) to the investors, their spouses and minor children.

Here’s a summary:

Key Requirements

Investment Amount:

  • $800,000 for Targeted Employment Areas (TEAs) which are rural or high unemployment areas.
  • $1,050,000 for non-TEA areas.

Job Creation:

  • The investment must create at least 10 full time jobs for US workers.

Proof of Funds:

  • Investors must provide documentation to prove the lawful source of their funds.

With its dual focus on economic growth and job creation, the EB-5 program is most relevant during economic recovery or political shifts. Regulatory policies and market developments have a significant impact on foreign investors interested in the EB-5 program, particularly those looking to diversify their portfolios within the U.S. market.

How It Works

  1. Initial Application (I-526 or I-526E):
    • Investors submit their petition to prove they meet EB-5 requirements.
  2. Conditional Green Card:
    • Upon approval investors and their families get a 2 year conditional green card and can live and work in the US.
  3. Removal of Conditions (I-829):
    • After 2 years investors file to remove conditions and prove their investment met the program’s requirements including job creation.

How have previous Administrations managed the EB-5 program?

Trump Administration (2017-2021)

  • Minimal Direct Changes: Trump’s overall immigration policies were restrictive but EB-5 was left alone.
  • Processing Delays: Big backlogs in I-526 and I-829 processing during Trump’s first term. Investors were frustrated and the program slowed down.
  • Support for Real Estate: Trump’s background in real estate aligned with the program’s focus on development projects so there’s potential for EB-5 growth.
  • Economic Growth: Trump recognized the importance of investment immigration and excluded EB-5 from the broader immigration bans during his first term.
  • Focus on Illegal Immigration: Trump’s administration’s focus on illegal immigration could lead to significant changes in the immigration landscape, particularly affecting investor visas and the EB-5 program.

Some policies created bottlenecks but his administration laid the groundwork for a business friendly approach.

Biden-Harris Administration (2021-2024)

  • Reform and Integrity Act (RIA) of 2022: The Biden administration passed the RIA to fix the program, reduce fraud and introduce visa set-asides for rural and high unemployment areas.
  • Backlog Reduction: Efforts to speed up processing times included premium processing and online filing.
  • Engagement: Secretary of Homeland Security Alejandro Mayorkas has been meeting with EB-5 leaders so the administration is supportive of the program.

Trump’s First Term: Mixed Impact on EB-5

EB-5 was largely left alone during Trump’s first term but investors still faced challenges especially with processing times and additional requirements for green card issuance.

Key Events During Trump’s First Term

Minimal Policy Changes for EB-5:

  • Unlike H-1B or family based immigration the EB-5 program was not restricted or rolled back.

Processing Delays:

  • I-526 Petitions: Processing times for initial petitions increased by several years so investors were uncertain.
  • I-829 Petitions: Removal of conditions also had big backlogs so permanent green card approvals were delayed.
  • These delays were part of broader USCIS inefficiencies during Trump’s term.

Green Card Issues:

  • Public Charge Rule: Adjustment of status applicants had to provide extensive proof of financial self sufficiency under the revised public charge rule.
  • Consular Delays: Overseas applicants experienced inconsistent and slow processing through U.S. embassies with many cases lacking transparency.

Requests for Evidence (RFEs):

  • USCIS was more stringent in reviewing petitions and asking for more documentation to support eligibility.

Hong Kong’s Reclassification (July 2020):

  • Trump stopped recognizing Hong Kong as an autonomous region so Hong Kong investors were pushed into Mainland China’s longer EB-5 visa lines.
  • EB-5 applications from Hong Kong dropped significantly as Hong Kong was a major source of EB-5 applications.

More Scrutiny and Delays:

  • Removal of deference in adjudications means more scrutiny on petitions and longer processing times.
  • Travel bans targeting Muslim countries created uncertainty for potential investors and sent a bad message to foreign nationals.

EB-5 Processing During Trump’s First Term

The first Trump administration saw an initial increase in productivity of the Immigrant Investor Program Office (IPO) in processing EB-5 cases but it couldn’t keep up with demand.

IPO Productivity

  • 2017:
    • IPO was facing growing demand with backlog increasing from 12,453 to 24,992 cases.
    • IPO hired more officers including former Adjudicator Greg Sheehan who saw a big increase in productivity.
  • 2018:
    • IPO processed over 15,000 I-526s and reduced backlog to under 15,000 cases.
    • China demand decreased so IPO slowed down production due to lower volume.

Unsustainable Processing Pace

While the Trump administration improved backlog management the rapid pace of processing was not sustainable in the long term. But the infrastructure and resources built during this period will be the foundation for future progress.

Is IPO Ready for Today’s Demand?

Current IPO Capacity

FOIA request revealed that as of May 29, 2024:

  • IPO has 300 staff including:
    • 73 adjudicators
    • 23 economists
  • Compared to 2018, IPO has slightly fewer staff but more efficient since the backlog is manageable and post pandemic improvements.

Post-RIA Shift

The EB-5 Reform and Integrity Act of 2022 (RIA) has changed how IPO processes cases:

  • FY 2024 Data:
    • 815 I-526E petitions processed.
    • 5,293 I-526E petitions pending.
  • According to Sheehan, IPO is ready to transition smoothly from pre-RIA to post-RIA demand and focus on I-829 petition processing efficiency.

What to Expect Under Trump 2.0?

A second Trump administration could bring more challenges to EB-5 investors and build on what we saw during his first term. Here’s what we think:

Higher Costs

  • Filing fees across all immigration categories will increase and add more financial burden to investors.
  • Additional costs could be fees for expedite or RFE response.

Tougher Scrutiny

  • USCIS will ask for more RFEs and denials and require investors to provide more documentation to prove:
    • Lawful source of funds.
    • Job creation through their investment.
    • Compliance with other EB-5 requirements.
  • Consular interviews and application reviews will be more intense especially for applicants from countries considered national security risks.

Processing Delays

  • Backlogs will get worse due to limited USCIS resources and stricter review process.
  • Investors should expect longer wait times for initial petition and green card approval.
  • USCIS and DOS delays will discourage potential investors.

Increased Security Measures

  • Applicants from certain countries will be subject to additional security screening. This will disproportionately affect investors from countries flagged as national security risks.

Travel Bans

  • If new travel bans are implemented investors from certain countries will have trouble entering or exiting the US and managing their investments or meet residency requirements.

Legal and Regulatory Changes

  • Trump’s administration will bring a new SEC with different priorities.
    • For example, changes to the definition of “accredited investors” will impact EB-5 eligibility and access.
    • A less aggressive SEC will also change oversight of large real estate deals involving EB-5 funding.
  • There’s also a chance to reverse some of the USCIS operational changes made during the Biden administration.

Political Climate and Xenophobia

  • Some think anti-immigration rhetoric will impact EB-5 policies especially CFIUS oversight of foreign funded real estate projects.

Why EB-5 will still have advantages

Despite all these challenges EB-5 is still a unique immigration pathway compared to other visa options.
Trump supporters argue that his presidency will be good for EB-5

Trump supporters argue that his presidency will be good for EB-5

A Stable Immigration Option

Compared to other US immigration programs EB-5 is one of the most stable:

  • Job Creation: Tangible and measurable, a core requirement of EB-5 is a bipartisan priority.
  • No Cost to Taxpayers: The program is self funded through private investment so it’s politically attractive.
  • Economic Growth: EB-5 drives development in rural and high unemployment areas.

This stability is reassuring for both entrepreneurs and investors alike, ensuring continued interest in the program.

More Oversight

Government is improving financial and informational systems to prevent fraud and compliance. This will be more visible as IPO emphasizes transparency and transaction review.

Certainty through the RIA

  • EB-5 Reform and Integrity Act (RIA) locks in the program framework until March 15, 2027 so investors can plan ahead.
  • Investors can file now knowing the minimum investment and rules are fixed.

Concurrent Filing of AOS

  • Investors filing through regional centers in TEAs can file AOS with the initial I-526E petition. Others who are filing I-526 can file the AOS if their priority date is current.
  • This gives you:
    • Work Authorization (EAD): A 5 year renewable employment permit.
    • Advance Parole: Permission to travel internationally while waiting for green card approval.

Economic Priorities align with EB-5

  • Trump’s emphasis on job creation and economic growth both align with EB-5 goals.
  • EB-5 is an economic priority for policymakers so there’s less chance of sudden and drastic changes
  • Advocates will lobby Congress to increase EB-5 visa caps and expedite processing to maximize economic benefits.

Trump’s history with Real Estate

  • Trump’s background in real estate is closely tied to EB-5 funded development projects which will thrive under an administration that supports them.
  • Lower taxes and faster approvals will make real estate an even more attractive sector for EB-5 investors
  • Tax policies for high net worth individuals (HNWIs) during his previous administration made the US an attractive destination for foreign investors.
  • Experts think this will keep interest in EB-5 going.

Neutral to Favorable Policy Environment

  • During Trump’s first term EB-5 was largely untouched by broader immigration restrictions.
  • Many expect similar treatment in Trump’s second term and focus on investor confidence.
  • Trump’s policies are expected to influence foreign investment positively, particularly in sectors like real estate and digital assets.

Opportunities from H-1B and Visa Restrictions

  • stricter H-1B visa will redirect skilled workers and entrepreneurs to EB-5 like what happened from 2017 to 2020.
  • This will grow the EB-5 applicant pool and investment in US businesses.
  • The backlogs in EB-3 and EB-2 for Indian nationals with wait times of over 10 years will push more Indian professionals in the US on H1B to pursue EB-5.

Lobbying for Program Changes

  • Raise the Visa Cap: There’s hope that the lobbying to increase the annual EB-5 visa cap will bear fruit under Trump.
  • Faster Processing: Advocates will push for USCIS to improve efficiency to make the program more attractive to foreign investors.

Pro-Business Policies & Tax Cuts for High Net Worth Individuals

Republican administrations including Trump have always supported tax cuts for high net worth individuals. This could:

  • Reduce the tax burden on EB-5 investors.
  • Make the US a more attractive destination for foreign capital.
  • Trump’s promise to lower corporate taxes and reduce regulatory burdens will encourage foreign investment.
  • His administration’s tax reforms in his first term resulted in trillions of dollars in cuts that benefited corporations and high income earners making the environment more attractive for foreign investors.
  • Significant Tax Reforms: Trump’s administration’s efforts to lower corporate taxes and deregulate the business environment resulted in substantial tax cuts, positioning the U.S. as an appealing destination for foreign investment.

Merit Based Immigration

Trump’s merit based immigration system will align well with EB-5:

Economic Contributions:

  • A points based system that prioritizes skills and investments will make the program more attractive to high net worth individuals.
  • Global trends are shifting towards skilled immigrants and investor driven policies and Trump’s reforms will make the US a leader in attracting top tier investors.
  • Promoting Legal Immigration: By focusing on legal immigration through programs like EB-5, the administration aims to stimulate job creation and contribute positively to the economy.
  • Streamlined Application Process:
  • Merit based reforms will create a faster pathway for EB-5 applicants, less bureaucracy and less delays.

Simplifying EB-5 Regulations

  • Deregulation will simplify the approval process for EB-5 projects and make it easier for foreign entrepreneurs to set up businesses in the US.
  • With the Fraud Detection and National Security (FDNS) framework in place the integrity of the EB-5 program can still be maintained while reducing unnecessary bureaucracy.

Market Optimism: The Investor’s Reaction

After Trump’s election, markets surged:

  • Stock Market:
    • US stocks hit all time highs.
  • Dollar:
    • Dollar had its best day since 2022, as global investors flocked to the US market.

Trump’s Vision for the SEC and Cryptocurrency

SEC Regulatory Changes

  • Trump has promised to overhaul the SEC including firing Chair Gary Gensler whose strict regulations have been criticized for killing innovation.
  • A more relaxed SEC will reduce the compliance burden on EB-5 projects and crypto backed investments making it more attractive for entrepreneurs.

Cryptocurrency is the New Frontier

  • Trump’s crypto friendly approach will attract foreign investors:
    • His endorsement of Senator Cynthia Lummis a crypto advocate means he will support digital asset innovation.
    • A federal Bitcoin reserve and approved Bitcoin ETFs will make the US a more attractive crypto investment destination.
  • Crypto and EB-5:
    • A regulated crypto market will provide legal ways for foreign investors to use digital assets in EB-5 projects.
    • Crypto backed investments will provide new opportunities for diversification in the US market.
    • Transform Traditional Investment Paradigms: The emergence of cryptocurrencies offers innovative engagement opportunities for foreign investors, potentially reshaping established investment strategies.

Global Partnerships: Foreign Investment

Trump’s relationships with global leaders including Saudi Crown Prince Mohammed bin Salman and Turkish President Recep Tayyip Erdogan will bring more foreign direct investment to the US:

  • Saudi Diversification:
    • As Saudi Arabia reduces its dependence on oil its sovereign wealth fund will invest in US real estate and infrastructure projects.
  • Turkey’s Strategic Location:
    • Turkey as a bridge between Europe and Asia provides opportunities for US businesses and foreign investors to partner.

These relationships are expected to facilitate increased foreign direct investment in the U.S., particularly in sectors like real estate and infrastructure.

This will bring more foreign investment to EB-5 projects and the economy.

How to Navigate the New Landscape as an EB-5 Stakeholder

Whether you are optimistic or cautious you should act now.

  1. File Applications Now
    • Investors should file now to avoid delays from policy or procedural changes.
    • Filing now will reduce the impact of processing times and fees rising.
  2. Stay Up to Date on Policy Changes
    • Attorneys and investors should follow USCIS, SEC and Congress for updates on new regulations.
    • Subscribe to newsletters or alerts from immigration law firms to be informed.
  3. Get Professional Help
    • Work with experienced immigration attorneys who know the EB-5 process.
    • Attorneys can help with RFEs, consular interviews and find alternative paths if needed.
  4. Advocate
    • Lobbying should focus on increasing the EB-5 visa cap and reducing processing times to make the program more attractive to foreign investors.
  5. Diversify Your Investment Strategy
    • Invest in projects with track record of success especially in TEAs to reduce risk and ensure job creation requirements are met.
  6. Plan for Delays
    • Build in flexibility to your timeline especially if you need to sync your green card process with business or personal commitments

EB-5 Controversy

Keep an Eye on Family Connection to EB-5

There has been some controversy around EB-5 thanks to high profile players like Jared Kushner, Trump’s son-in-law and former White House Advisor. With deep ties to luxury real estate and political influence Kushner’s family business shows how the program has become a powerful tool for developers and raises questions of conflict of interest.

The program was ignored at first but became a lifeline for developers after the 2008 financial crisis.

Kushner and EB-5: Using Influence

Family Ties and Conflicts of Interest

Jared Kushner resigned from Kushner Companies when he became a senior White House advisor to Donald Trump but the family name was still used in EB-5 pitches overseas.

  • Real Estate Promotions in China:
    • Kushner representatives were actively marketing to Chinese investors saying that funding projects with the family would get US visas.
    • Events featured properties with the Kushner name to leverage the political connections to attract investors.

Critics’ Complaints

The Kushner family using EB-5 shows how the program is used to benefit luxury real estate instead of its intended purpose of helping rural or distressed areas.

EB-5 Original Purpose vs. Reality

The Intent: Direct Investment to Needy Areas

EB-5 was meant to invest foreign capital in struggling communities to revitalize the economy in:

  • Rural Areas: Areas with low population density.
  • Urban TEAs: Areas with high unemployment.

The Reality: Funding Luxury Projects

  • Luxury over Necessity:
    • High end projects like Miami’s Skyrise and Los Angeles’s Century Plaza Hotel have received hundreds of millions in EB-5 funding.
    • These projects rarely align with Congress’s original intention for the program.
  • TEA Gerrymandering:
    • Developers manipulate Census tracts to include high unemployment areas to qualify their luxury projects for the investment threshold (then $500,000).
    • Example: Manhattan’s Hudson Yards used Census data from Harlem to qualify as a distressed area despite being one of the most expensive neighborhoods in New York.

How EB-5 Became a Chinese Magnet

China’s EB-5

  • High Demand: Chinese investors are the majority of the program, looking for US residency for their families.
  • Visa Backlogs: Demand has created years long wait times for visas and has diminished the program’s promise of speed.

Low Returns, High Appeal:

For wealthy Chinese families the visa is the main goal:

  • Lower Risk Threshold: Investors prefer the $500,000 option even if returns are minimal.
  • Luxury over Necessity: A prestigious address is more important than the intention to help struggling communities.

The Kushner Effect: Warping EB-5

Advantages for Connected Developers

Projects associated with politically connected families like the Kushners have an added draw for foreign investors:

  • Perceived Safety: Investments with the White House seem less risky.
  • Access to Foreign Capital: Developers with political ties can get ahead of the line for a share of the 10,000 annual EB-5 visas.

Case Study: 666 Fifth Avenue

  • Project: Kushner Companies considered using EB-5 to redevelop the Manhattan skyscraper with Chinese insurer Angbang.
  • Impact: The $850 million project could have used up 50% of the program’s annual visa allocation showing how big luxury projects overshadow smaller, more meaningful projects.

Democracy Forward Sues Trump Administration Over Jared Kushner’s EB-5 Role

Democracy Forward, a watchdog group, filed a lawsuit The lawsuit was filed in the U.S. District Court for the District of Columbia against the Trump Administration seeking transparency on Jared Kushner’s involvement in the EB-5 Immigrant Investor Program. The lawsuit was filed after federal agencies, including the Department of State (DOS), Department of Homeland Security (DHS), and U.S. Citizenship and Immigration Services (USCIS) failed to disclose critical information about Kushner’s connection to the program.

The lawsuit raises concerns about the EB-5 program being used to benefit Kushner Companies’ real estate projects and cites federal investigations into these allegations.

Key Points and Concerns

  1. Federal Investigations Into Kushner Companies
    • Kushner Companies, owned by Jared’s family, used the EB-5 program as a major funding source for their real estate projects.
    • Federal prosecutors in New York and the Securities and Exchange Commission (SEC) began investigating after Nicole Kushner Meyer, Jared’s sister and a principal at Kushner Companies, used her family’s ties to the White House to attract foreign EB-5 investors.
  2. Jared Kushner’s Role and Security Clearance Scandal
    • Kushner was initially denied top secret clearance due to concerns about foreign influence tied to his business.
    • The Washington Post reported that officials from at least four countries discussed using Kushner’s business ties for leverage.
    • President Trump personally overruled and granted Kushner top secret clearance.
  3. Timing of EB-5 Program Renewal
    • May 2017: President Trump reauthorized the EB-5 program just before it was set to expire.
    • Hours later Nicole Kushner Meyer pitched a family real estate project in New Jersey to Chinese investors, calling it a “Kushner family project” and referencing the EB-5 program.
    • Promotional materials included video of President Trump, raising questions about whether White House policy was influenced by Kushner’s financial interests.

Democracy Forward Statement

Anne Harkavy, Executive Director of Democracy Forward:

“A nice way of saying this White House has no conflict of interest policy might be ‘ethically challenged.’ The public deserves to know if helping out the Kushner family was why President Trump reauthorized the EB-5 program and to what extent Kushner’s personal financial needs are driving White House policy on this.”

Has EB-5 Gone Back to Its Roots?

The RIA law was an attempt to address the EB-5 deficiencies:

  • Tighten TEA Definitions: Stop gerrymandering by making the definitions of distressed areas more strict.
  • Focus on Rural Communities: Shift investment away from urban luxury projects to areas that need economic growth.
  • Increase Oversight: Monitor transactions to ensure compliance and prevent misuse.

The Future of EB-5 in a Political World

The Kushner family’s use of the EB-5 program shows the bigger problems with the program. While intended to help struggling communities the program has been hijacked by luxury developers. Projects tied to influential families like the Kushner’s only exacerbate

FAQ: EB-5 Investor Green Card Program Under Trump 2.0

General EB-5 Questions

Questions About Trump’s Policies and How They Affect EB-5

Investment Questions

Processing and Adjudication

Regional Centers and Project Selection

Global Investor

Compliance, Fraud and Oversight

Future of EB-5

EB-5 Tips for 2025 and Beyond

  • Start Early: File your petitions as soon as possible to avoid processing delays or policy changes.
  • Stay Informed: Follow USCIS and Trump administration updates on EB-5.
  • Hire Experts: Work with experienced immigration attorneys and reputable regional centers.
  • Pick Proven Projects: Go with projects that have a track record of compliance and job creation.
  • Plan for Delays: Factor in the backlogs in your timeline.

EB-5 in the Trump 2.0 Era

The EB-5 Immigrant Investor Program has survived multiple administrations and is here to stay as part of U.S. economic policy. Trump’s second term will bring both opportunities and challenges. Proper planning, informed decision making and professional guidance will help investors navigate the changes.

Call the Herman Legal Group if you have questions about EB-5 or need help with your petition.

Trump 2.0: Immigration Policies Likely to Impact Family & Employment

With Trump re-elected, we need to know what will happen to marriage-based immigration, K-1 visas, CR1/IR1 visas and green cards. While his second term policies are still unknown, we can look to his past actions and statements, including numerous immigration executive orders, to get a sense of what might change. Here’s what applicants and sponsors can expect and what to do.

As the U.S. heads into a second Trump administration, understanding the immigration policy changes is key for families and businesses. Here’s what to analyze and how to prepare:

  • Actions taken 2017-2021 during his first term.
  • Campaign statements and proposed policies.
  • Reversals and adjustments made by the Biden administration, many of which will be rolled back. President Biden has revoked several of Trump’s immigration executive orders, reshaping the immigration landscape.

Whether you are a foreign worker, a family seeking immigration benefits or an employer of international talent, you need to be prepared.

Trump and K-1 and CR-1: Marriage-Based Immigration

Trump’s Immigration Policy

  • Trump’s immigration policy has been about reducing immigration, including marriage-based immigration.
  • The Trump administration has taken many steps to reduce the number of immigrants entering the US, including tighter visa requirements and more visa application scrutiny. A directive from President Trump emphasized the importance of not taking shortcuts in the enforcement and administration of these laws, highlighting the need to administer immigration laws effectively.
  • The administration’s “America First” policy puts American citizens first, not immigrants.

Impact on Marriage-Based Immigration

  • Trump’s policies have had a big impact on marriage-based immigration, including K-1 visas and CR-1 visas.
  • He’s made these visas more difficult with more documentation and more scrutiny of applicants by immigration officers.
  • Processing times for these visas have also gotten longer, causing delays and uncertainty for applicants.
  • Issuance of green cards to those outside the U.S. has declined, impacting family reunifications and employment-based immigration.

K-1 Fiancé(e) Visas

  • Trump has made K-1 fiancé(e) visas more difficult with more documentation and more scrutiny of applicants.
  • Processing times for K-1 visas have also gotten longer, causing delays and uncertainty for applicants.
  • K-1 visa denial rate has also increased, with some reports saying up to 30% of applications are being denied.

Visa Applications

  • Trump may make changes to visa applications, more requirements and more scrutiny of applicants during the immigration process.
  • He may also lengthen processing times for visa applications, more delays and uncertainty for applicants.

Families and Employers

  • Trump’s policies have impacted families and employers who rely on marriage-based immigration.
  • More scrutiny and processing times for visa applications, especially those involving legal immigration, means more delays and uncertainty for families and employers.
  • The denial rate for visa applications has also affected families and employers, causing separation and disruption.

Be Prepared for Policy Changes

  • Families and employers should be prepared for policy changes by staying up to date on immigration laws and policies.
  • Applicants should also make sure they meet the requirements for their visa application and have all documents.
  • Applicants should also be prepared for delays and uncertainty in the process and plan accordingly.

What to Do Now?

File Before January 20:

  • File your case under current rules before requirements get stricter, as seen during the previous Trump administration.
  • Apply for citizenship, green cards or family-based visas now.

Bolster Financial Evidence:

  • Max out your Adjusted Gross Income on your 2024 tax return.
  • Minimize deductions to meet financial eligibility thresholds.

Expedite Interviews:

  • If you have a pending USCIS or consular interview, schedule it ASAP to avoid delays from new policies.

Prepare for RFEs:

  • Check documentation twice to make sure you meet all requirements.
  • Load up applications with strong evidence of bona fide relationships to ensure the USCIS reviewing officer can assess your eligibility without needing additional documentation.

Get Professional Help:

  • Immigration laws are complicated and ever-changing. Work with an immigration expert to help you navigate the process.

Families and Employers

To guide your strategy in preparing for Trump 2.0, the following chart will provide some key guidance.

Family-Based Immigration

Policy AreaTrump’s First TermBiden AdministrationSecond Trump Term Expectations
Public Charge RuleIntroduced strict financial proofReversed ruleLikely reinstatement, reflecting President Trump’s last term policies
Adjustment InterviewsMandatory for all casesWaived for low-risk casesUniversal reinstatement
Sponsor Income RequirementsIncreased income thresholdsRestored previous thresholdsHigher financial requirements
Form I-944Required detailed financial proofEliminatedLikely reinstatement
K-1 Fiancé VisasSlower processing and increased RFEsStabilizedPotential additional scrutiny

Processing and Procedures

Policy AreaTrump’s First TermBiden AdministrationSecond Trump Term Expectations
Requests for Evidence (RFEs)Increased RFEs, particularly for employment casesReduced issuanceHigher rates of RFEs as USCIS reviewing officer examines applications more thoroughly
Processing TimesLengthened processing timesImproved efficiencyAnticipated delays
Premium ProcessingLimited availabilityExpanded premium processingPotential restrictions

Entry and Admissions Policies

Policy AreaTrump’s First TermBiden AdministrationSecond Trump Term Expectations
Travel BansImposed regional bans targeting nationsRescinded bansPotential expansion to new regions
Enhanced VettingIntroduced social media reviewsLimited screeningBroader scrutiny
Refugee CapsSignificantly reduced quotasIncreased admissionsStricter limits

Employment-Based Immigration

Policy AreaTrump’s First TermBiden AdministrationSecond Trump Term Expectations
H-1B Wage RequirementsIncreased wage thresholdsReverted to prior calculationsHigher wage thresholds
Specialty OccupationNarrowed definitionsBroadened criteriaStricter eligibility
H-4 Work AuthorizationThreatened removalPreserved authorizationLikely elimination
Compliance and OversightEnhanced audits and reviewsReduced compliance pressureStricter compliance requirements
OPT and STEM OPTHeightened scrutinyExpanded opportunitiesStricter oversight

Actionable Insights

Takeaways

For Families:

  • Start financial preparations early, like building up savings and gathering documentation like tax returns, credit reports and proof of income.
  • Work with immigration experts to navigate the restrictions and explore waiver options where possible.
  • Prepare a Safety Plan.

For Workers:

  • Keep detailed job descriptions and supporting documents to match stricter eligibility requirements.
  • Stay up to date on policy changes, use expedited filing where possible and explore alternative visa options if needed.

For Employers:

  • Conduct proactive audits to prepare for regulatory changes.
  • Develop contingency hiring plans, such as diversifying talent sources or remote work for critical roles.
  • Work with legal teams to address potential issues for high-priority positions that require specialized visas.

Trump to Overhaul Immigration from Day One

President-elect Donald Trump is preparing to remake the U.S. immigration system from day one on January 20, when he takes office. Immigration has been a big part of Trump’s platform and his second term will deliver on the promises he made during the 2024 campaign.

Trump’s Plan: Immigration Reform from Day One

From his campaign speeches to policy statements, Trump has made immigration reform his top priority. His latest moves include high-profile appointments and a clear timeline for action. Here are the key parts of his plan:

  • Mass Deportations: Crack down on undocumented immigrants, starting with those who have committed crimes.
  • End Birthright Citizenship: Eliminate automatic citizenship for those born on U.S. soil to undocumented parents.
  • Border Security: Restart the southern border wall and deploy advanced technology.
  • Secure the Border: Trump will issue immigration executive orders on day one to harden the border.

Key Appointments

Trump has tapped immigration hawks to lead the charge:

  • Stephen Miller: As deputy chief of staff, Miller will help shape and execute broad immigration policies.
  • Tom Homan: Back as “border czar,” Homan has years of enforcement experience and promises to move fast.

Both have been on the airwaves, explaining the administration’s plans to crack down on immigration and secure the border.

Legislative Agenda: Reconciliation Package

The administration will use the budget reconciliation process, which allows some measures to pass with a simple majority in Congress. Here’s what’s expected to be in the package:

  • More ICE Funding: To support mass deportations and enforcement.
  • Border Infrastructure: Additional funding for walls, barriers and technology at entry points.
  • More Border Agents: To handle the expected surge in enforcement.

Republicans hope to get this to Trump’s desk by late January or early February.

Executive Orders on Day One

Trump will sign multiple executive orders on his first day, one of which Miller described as an order to “secure the border.” These will include:

  • Immediate asylum halts.
  • Expedited deportations for undocumented immigrants.
  • Policies to pressure sanctuary cities to work with federal immigration authorities.

A Second Term with a Plan

Unlike his first term, Trump has a plan and experience. As immigration advocate Ira Mehlman says:

“They’ve had four years to learn the system and they’re ready to do it.”

Economic and Human Costs

While Trump’s base supports his stance, critics warn of big economic and social costs. Here are the concerns:

  • Economic Disruption: Deporting millions of workers from industries like agriculture, construction and hospitality which rely heavily on undocumented labor.
  • Family Separations: Deportation policies will split families, including those with mixed immigration status.
  • Legal Challenges: Democratic governors and advocacy groups have vowed to fight ending birthright citizenship, predicting many court battles.

Tough Policies with a Path for Dreamers

Trump has hinted he’s open to a legislative solution for Dreamers, young people brought to the US illegally as children. But that will likely require Democratic support for more border security.

Opposition and Legal Barriers

Democratic leaders and immigration advocates are gearing up to push back. Senate hearings have already shown differing views:

  • Republican Arguments: Advocates like Patty Morin say undocumented criminals are a danger, citing personal stories as proof of need for tougher enforcement.
  • Democratic Arguments: Critics, including Sen. Dick Durbin, say mass deportations would be expensive and inhumane and advocate for targeted enforcement and a path to legal status.

Durbin summed up the opposition’s view:

“Deporting every undocumented immigrant would cost hundreds of billions and tear families apart. Let’s focus on those who are a real threat.”

What’s Next? A Country Divided on Immigration

As Trump takes office the fight over immigration policies will be front and center in both the political and legal arenas. With his base behind him and Democratic governors and advocacy groups opposed, the country is in for an immigration showdown.

Whether it works will depend on his administration’s ability to get through Congress, public opinion and the courts. One thing is for sure: immigration will be a hallmark of his presidency.

What to Expect from the Trump Administration

Executive Orders and Policy Changes on Day One

The administration will move quickly in several areas:

USCIS Adjudication Practices:

  • Reinstatement of policies that allow for more denials without first requesting additional evidence.
  • No deference to prior approvals, more denials and longer processing times.

Humanitarian Programs:

  • TPS and parole programs for countries like Cuba, Haiti, Nicaragua and Venezuela will be terminated.
  • DACA status is unclear, will create workforce disruptions.

I-9 Audits and Worksite Inspections:

  • More frequent audits, investigations and site visits to verify H-1B and L-1 compliance.

Travel Restrictions:

  • More travel bans and increased visa interview screening will make international travel for employees more complicated.

USCIS Vigorously Enforce Immigration Law

  • Tighter Scrutiny:
    • USCIS will take no shortcuts, looking for minor errors or inconsistencies in applications.

Delays and Denials:

  • More scrutiny means longer processing times and higher denial rates.

Requests for Evidence (RFEs)

  • Historical Trend: During the previous Trump administration, RFEs skyrocketed for trivial reasons, causing system-wide slowdowns.
  • Future Expectation: Be prepared for more documentation and detailed responses to avoid delays.

Extreme Vetting

  • Consular Interviews: You may be required to:
    • Turn over your phone for inspection of contact lists and photos.
    • Share your social media usernames and passwords.
    • Provide 15 years of travel, employment and address history.
    • Answer ideological questions about U.S. culture and values.

Public Benefits and Financial Eligibility Rules

  • Expanded Ineligibility:
    • Previously included cash welfare recipients (e.g. SSI, food stamps).
    • May include non-cash benefits like Medicaid, subsidized housing and Medicare Part D.
    • May disqualify sponsors who ever received public benefits in their lifetime.
  • New Proposals:
    • Require proof of assets in addition to income.
    • Require health insurance for sponsors and applicants.
  • Impact: Sponsors will have to show higher financial stability and comply with stricter definitions.

Best and Brightest

  • Eligibility Changes: New rules may favor immigrants with advanced education, specialized skills and good health over family based applicants.
  • Refugee Admissions
  • Refugee admissions were cut to historic lows during Trump’s presidency.

Mandatory Interviews

  • Current Practice: Waivers are often granted when sufficient evidence shows a bona fide relationship.
  • Expected Change: The USCIS reviewing officer may have the discretion to waive mandatory interviews if sufficient evidence of a bona fide relationship is provided. However, there is an expected change towards mandatory interviews for all K1 and CR1/IR1 applicants, leading to longer processing times.

Delays and Backlogs

  • Total Impact: Stricter rules and more requirements means slower case resolution, backlogs and denials.

Higher Standards for U.S. Citizenship

  • Civics Test: Expect a more difficult civics test with more questions and higher passing scores, reversing Trump’s previous changes.
  • Ramping up of denaturalization efforts.

Family-Based Immigration

  • Proposed Changes:
    • Eliminate eligibility for parents and siblings of U.S. citizens to immigrate.
    • Only spouses and minor children.

Long-Term Immigration Reform

As his term goes on, Trump will likely:

H-1B Program Reform:

  • Redefine “specialty occupation” criteria.
  • Higher wage requirements for H-1B workers.
  • Prioritize cap registrations by salary.

Visa Denials and Restrictions

  • H-1B Visas: Denial rate for initial H-1B employment applications rose to 24% in 2018 and 21% in 2019 from 6% before Trump was elected. Renewals also saw increased scrutiny with denial rate of 12% in 2018 and 2019.
  • Court Challenges: After lawsuits, denial rate fell to 2% in 2022. But Trump’s team left a 2020 rule in place to reinstate restrictions which could be re-imposed in a second term.
  • L-1 Visas: Trump used immigration law to bar entry for intra-company transferees, but courts ruled he overstepped his authority.

F-1 OPT Programs:

  • Reduction or elimination of Optional Practical Training (OPT) for international students.
  • Specific Work Authorization Programs:

End to Employment Authorization Documents (EADs)

for H-4 spouses and other individual programs.

Merit-Based Immigration:

  • Prioritize highly skilled, educated workers with good economic prospects over family based immigration, emphasizing the importance of legal immigration to attract and retain top talent.
  • Proposals include wage floors, recruitment requirements and protections for American jobs and wages.

End Birthright Citizenship:

  • A controversial proposal to deny automatic citizenship to children born in the U.S. to non-citizen parents.

For Employers

Tougher Visa Adjudications

  • Expect more documentation requirements for H-1B, L-1 and O-1 visa petitions.
  • Routine applications will be delayed, especially those not done through premium processing.

Travel Disruptions

  • New travel bans will complicate both personal and business travel.
  • Employers should plan ahead for potential delays or denials that will leave employees stranded abroad.

More Stringent Screening

  • Visa applications will require more scrutiny for ideological affiliations or positions.
  • Employers should prepare for longer consular processing times.

Increased Enforcement

  • Expect more I-9 audits and potential workplace raids.
  • Employers should have robust onboarding process, regular internal audits and compliance training for HR teams.

Financial and Operational Impact

  • Higher prevailing wage requirements will impact H-1B workers and other employment-based visa categories.
  • TPS and H-4 EAD terminations could result in losing key employees and disrupting business.

Internal Housekeeping

  • Audit I-9 and visa compliance regularly.
  • Have escalation protocols for audits, raids or employee status changes.

Consult with Experts

  • Stay in touch with immigration counsel to stay on top of the changing rules.
  • Develop contingency plans for affected employees and workforce strategies to address potential disruptions.

Follow Policy

  • Monitor legislative and regulatory changes especially those that impact employment based immigration.
  • Be aware of new travel and visa restrictions to avoid surprises.

Plan for Workforce Changes

  • Identify roles that will be impacted by changes to visa or work authorization programs.
  • Plan alternative staffing and workforce strategies.

Economic Impact of Immigration Policies

Policies during Trump’s previous administration suggest this plus the pandemic reduced the foreign born workforce. The impact was measurable:

  • GDP Growth Decline: Economist Madeline Zavodny estimated that between 2016 and 2022 U.S. GDP was $335 billion lower than it would have been if the foreign born working age population had continued to grow at previous rates.
  • Labor Shortages: A smaller working age population means higher wages and shortages in industries that rely on foreign workers like technology, agriculture and hospitality.

Project 2025: The Second Trump Term Blueprint

Developed by the conservative Heritage Foundation with input from former Trump administration officials, Project 2025 outlines the immigration policies Trump could implement if re-elected.

Temporary Work Visa Overhaul

  • H-1B Program: The plan will turn H-1B into an elite program for the highest paid foreign workers, top talent only, and discourage lower wage applications.
  • H-2A and H-2B Visas: The plan will freeze the list of countries eligible for these visas which would severely impact sectors like agriculture, hospitality and construction by reducing foreign labor availability.

Increased Vetting and Enforcement

  • Longer Background Checks: USCIS staff will focus more on security vetting which could delay processing of work permits and other benefits.
  • More Frequent Permit Renewals: Immigrants will have to renew their work permits more frequently which will add to the backlogs.
  • Deportation of Denied Applicants: Project 2025 recommends deporting individuals whose immigration benefit applications are denied even if they are legally in the US.

What’s at Stake

For Businesses and Workers

  • Agriculture: Niskanen Center says freezing H-2A visa updates could reduce farm labor by 10% which would mean higher costs and lower productivity.
  • Tech Industry: Limiting H-1B visas to top earners would disadvantage smaller tech companies that can’t compete with the big players for talent.
  • Hospitality and Construction: These sectors that rely heavily on H-2B workers would face severe labor shortages and higher costs.

For Immigrants and Families

  • Immigrants with pending status could face prolonged uncertainty and deportation if benefits are denied or delayed.
  • Humanitarian parole programs like Venezuelans, Ukrainians and others could be eliminated.

Trump’s Promise of the Biggest Deportation Operation in U.S. History

Now that the 2024 presidential election is over the biggest question being asked is what will the second Trump administration do on immigration?

Former president Donald Trump made immigration the centerpiece of his campaign and promised the “biggest deportation operation in American history if re-elected. His proposals go way beyond what he did in his first term and will impact millions of immigrants and change the way America approaches immigration enforcement, border protection, security and family reunification.

Trump’s immigration platform goes beyond undocumented immigrants. His policies will change the very fabric of U.S. immigration, legal pathways, citizenship and protections for asylum seekers.

“Liberation Day” and New Immigration Enforcement

Some of Trump supporters have characterized November 5, 2024 as “Liberation Day” — the day when Trump won the election and put him on the path to free America from “foreign occupation” by gangs and drug cartels.

Trump has pledged to move significant federal law enforcement resources to immigration enforcement, especially against gang and cartel activity. Federal law enforcement officers will play a crucial role in executing large-scale immigration enforcement operations and arresting undocumented individuals as part of this initiative.

Key Themes and Anticipated Changes

“Our Country is Full”

In 2019, President Trump tweeted, “Our Country is Full,” signaling an emphasis on restricting immigration. His administration’s focus included building border walls, deporting undocumented immigrants, altering DACA, and scrutinizing naturalized citizens. Applicants for fiancé, spouse, and family visas should expect stricter requirements and longer wait times.

Get Ready for a Big Change in U.S. Immigration Policy

As the new administration begins, Trump’s plan is clear: border walls, mass deportations and less humanitarian protection. Employers, immigration advocates and migrants should stay informed and consider getting ahead of the changes.

In this article we will look at Trump’s immigration policies, the social and economic consequences and the bigger picture for immigrant communities and the country.

American People Want Aggressive Immigration Enforcement

Before we get into the policies of the second Trump administration, we need to first look at what the voters said on November 5, 2024.

Recent polling shows Americans are more in favor of stricter immigration policies, in line with former President Donald Trump’s position. According to the AP Vote Cast survey, more Americans now favor deporting undocumented immigrants rather than a pathway to legal status. This shift underscores the public’s support for stricter immigration law and highlights the legal implications of such policies.

AP Vote Cast Results

  • Deportation: 4 in 10 voters think undocumented immigrants should be sent back to their country of origin, up from 3 in 10 in 2020.
  • Less Support for Legal Status Pathways: While most voters still support legal status for undocumented immigrants, that number has dropped since the last election cycle in 2020. This means the electorate is more hardline on immigration.

Trump’s Immigration Message and Its Impact

  • Border Crossings and Crime: Trump has made the surge in illegal crossings at the U.S.-Mexico border a national security threat, linking it to crime. During the last Trump administration, there were significant changes in immigration policy, including a revised civics test for US citizenship and proposed extreme vetting measures for immigrants. He has focused on immigration in swing states, framing it as a national security issue.
  • Falsehoods: Trump has falsely and controversially accused Haitian immigrants in Ohio of doing strange things, including eating pets. While these claims are not true, they may have played well with voters in battleground states far from the border like Pennsylvania, Michigan and Wisconsin.

Strong Support Among Trump Voters

  • Deportation in Key States: In Pennsylvania, Michigan and Wisconsin, 8 in 10 Trump voters favor deportation over a pathway to legal status. This is high in these states so Trump’s immigration message is resonating.

This shows Trump’s tough stance on immigration is working more than ever with more voters in favor of more.

But we’ll see if Americans will continue to support this when they watch on the news every night: families being torn apart, parents being arrested and imprisoned and children crying.

Trump’s Immigration Plan

Trump’s immigration plan goes beyond deportation and enforcement, he wants to overhaul the entire U.S. immigration system. Here are the main parts of his plan:

Mass Deportations on a Massive Scale

Number: Trump wants to deport up to 20 million people, including undocumented immigrants and those with temporary legal status. This is more than any previous deportation effort and includes people who have lived in the U.S. for years. The immigration courts are already overwhelmed, and such a large-scale deportation plan would exacerbate the backlog in asylum system, necessitating a significant expansion of resources to handle the influx of new cases.

Trump’s Vision for Mass Deportations

  • Broader Reach: Trump has promised the “biggest deportation program in U.S. history,” targeting undocumented immigrants, especially those accused of violent crimes. During the campaign he pointed to examples of undocumented immigrants to make his point, but some were debunked.
  • Targeted Areas: Trump has named specific places like Springfield, Ohio and Aurora, Colorado as the first areas to focus on, saying he would take away temporary legal status from certain immigrant groups in those areas. His team has also mentioned deporting individuals with extremist ties, like “pro-Hamas radicals” from college campuses.
  • Advisors: Trump’s campaign press secretary said his plan is total, he will use every federal and state resource to do mass deportations.

How Mass Deportations Would Be Enforced

Military and Law Enforcement: President Donald Trump officials say he would use a wide range of resources to enforce deportations of unauthorized immigrants, including the U.S. military, National Guard and local law enforcement. This could mean extensive cooperation with state and local police to find and detain undocumented immigrants.

Executive Authority: Trump could use emergency powers and numerous executive orders and actions to speed up deportations and bypass some protections for undocumented immigrants. Legal scholars say he could use obscure wartime provisions that were used for mass detentions in the past, like during World War II for Japanese, German and Italian nationals.

More Contracts with Private Companies: The deportation process would likely involve private contractors for detention facilities, transportation and deportation flights. Private companies already manage many parts of immigration detention and this could increase if deportation efforts grow.

Historical Comparison: Trump’s plan is modeled after Eisenhower’s “Operation Wetback” in the 1950s where the U.S. forcibly deported people of Mexican descent, including U.S. citizens. But Trump’s is bigger and broader, targeting long-time residents and new arrivals.

More ICE: The new administration will remove the limits on Immigration and Customs Enforcement (ICE) put in place by the Biden administration so ICE will be more active against undocumented people in the U.S.

Alien Enemies Act: new Trump administration will use the Alien Enemies Act to target violent gangs like Venezuela’s Tren de Aragua and cartel members with a focus on reducing organized crime in immigrant communities.

Logistical and Legal Hurdles

Experts say deporting 20 million people in 4 years is impossible without significant resources, an expanded law enforcement workforce and a lot of money: Mass deportations at this scale means massive arrests, detentions and immigration hearings. Each stage requires due process which means legal representation, appeal rights and judicial review. To achieve this scale would mean bypassing or stretching legal protections — which would be challenged in court.

Extraordinary Economic Hurdles

Cost of Mass Deportations

  • Cost Estimates: According to estimates by Vice President-elect J.D. Vance and the American Immigration Council, deporting 1 million people a year would cost $88 billion a year. Deporting the entire 11 million undocumented population would take 10 years and cost nearly $1 trillion.
  • Detention Capacity: ICE currently has capacity for 41,500 people a day, it peaked at 55,000 during Trump’s first term. To support the scale Trump envisions, detention facilities would need a 24 fold increase in capacity which is logistically and financially impossible.
  • Private Contractor Opportunities: Trump’s plan will create opportunities for private contractors in detention, transportation and security as private companies will be able to expand their role in detention facility management, flight operations for deportations and other services.

Court Challenges

  • Immigration advocates and civil rights groups will sue against mass deportation policies citing constitutional protections and due process rights. But Trump’s influence on the judiciary during his first term, including hundreds of conservative judges, may make it harder to do so. Legal advocacy groups like the ACLU are preparing to sue against mass deportations to defend constitutional rights like due process and protection against unreasonable search and seizure

Community/State Resistance:

  • Some states and local governments will resist federal efforts, especially those with pro-immigrant policies. Local governments and advocacy organizations are preparing to counter deportations by offering legal resources and challenging enforcement in court. Local governments and immigrant communities are organizing resources to provide legal aid, rapid response networks and to educate immigrants about their rights.

Militarized Immigration Enforcement and National Guard

Trump’s immigration enforcement plan includes a big increase in immigration enforcement with military and local police.

  • Deploying Military and Law Enforcement: Trump’s plan includes using National Guard troops to assist in immigration enforcement, raids and detaining undocumented individuals with local law enforcement. Trump’s advisor Stephen Miller has talked about creating a new deportation force with military personnel and federal agents in states with cooperative officials.
  • Sweeps and Raids: The plan would involve big raids in immigrant communities and workplaces, increasing the risk of wrongful arrests, racial profiling and rights violations.

Response:

  • Limit Local Involvement: Many states and cities with pro-immigrant policies are preparing to opt out of mass deportations. They are passing laws and policies to prevent local law enforcement from being used in federal immigration enforcement.
  • Documentation and Accountability: Legal organizations are organizing to document and challenge militarized enforcement abuses and ensure transparency and accountability.

Dismantling Humanitarian Protections: Ending Asylum and TPS

Trump’s immigration plan includes ending asylum protections and revoking humanitarian protections for people from conflict zones.

Reviving Title 42, Asylum Restrictions & TPS

  • Title 42: Trump will revive Title 42, a public health policy implemented during COVID-19 that allowed for rapid removal of migrants. He will likely use it to block asylum claims broadly.
  • Remain in Mexico Policy: Trump will bring back the policy forcing asylum seekers to wait in Mexico while their cases are processed. Critics say this policy puts vulnerable people in harm’s way and limits access to legal assistance.
  • Ending Asylum: Trump’s administration will end asylum for those seeking protection at the border. Asylum is a fundamental right under U.S. and international law for people fleeing persecution. Trump’s restrictions would severely limit asylum claims at U.S. borders, forcing migrants to stay in dangerous conditions in their home countries.
  • TPS Protections: Temporary Protected Status (TPS), which allows people from countries in crisis to live in the U.S., would also be curtailed under Trump’s plan. Revoking TPS would affect hundreds of thousands of people who have lived in the U.S. for years, uprooting their lives and possibly forcing them to return to dangerous conditions.

Humanitarian Parole

  • CBP One App: The Biden administration’s use of the CBP One app for hundreds of thousands of migrants could be severely limited or ended.
  • Targeted Programs: Programs for 30,000 migrants per month from countries like Cuba, Haiti, Nicaragua and Venezuela would be eliminated as Trump tightens border security.

Response:

  • Court Intervention: Legal organizations are preparing to defend asylum and TPS.
  • Legislative Advocacy: Immigration advocates are working with pro-immigrant lawmakers to protect TPS and asylum programs and the human rights of removing these protections.

Family Rights: Birthright Citizenship and Public Education

The administration is also planning to take away certain rights from immigrant families, including birthright citizenship and public education for undocumented children.

  • Birthright Citizenship: Trump wants to repeal birthright citizenship for children born in the U.S. to undocumented parents, challenging a long-standing interpretation of the 14th Amendment. If implemented, this policy would strip millions of U.S.-born children of their citizenship and create a generation without legal status.
  • Public Education: Trump’s advisors have suggested revisiting the Plyler v. Doe decision which guarantees public education for all children. Cutting off education would force families to leave the country or not enroll their children in school, causing long-term harm to children’s education and social development.

Response:

  • Constitutional Defense: Legal advocates will challenge attempts to restrict birthright citizenship which has constitutional roots and historical precedent.
  • State Protections: States can pass laws affirming education for all children and set up systems to keep schools open and safe for undocumented.

Ideological Screening of Immigrants

  • Screening Criteria: Trump will screen out individuals whose views he deems anti-American. This will target groups he has labeled as “communists, Marxists and socialists.”
  • Student Visas: Trump will revoke student visas for individuals involved in pro-Palestinian or anti-Israel protests. Such criteria raises freedom of expression and the chilling effect on international students.

Public Charge Rule

  • Welfare Restrictions: Trump will re-impose a stricter public charge rule which will limit green cards for immigrants who are likely to use public assistance. This rule was designed to ensure self-sufficiency and will make it harder for low-income immigrants to get permanent residency.

Travel Bans

  • Targeted Travel Bans: Trump will bring back travel bans from countries he considers security threats. These bans will likely target countries with history of political instability or terrorism and restrict travel from those regions to the U.S.

Mexican Goods Tariffs

  • Tariff Threat: Trump will impose 25% tariff on all Mexican imports if Mexico doesn’t take more action to stop the flow of drugs and migrants into the U.S.
  • Pressure: The goal is to get Mexico to increase border enforcement by using economic leverage to get cooperation on migration and crime.

Border Wall

  • Wall Expansion: Trump will restart the U.S.-Mexico border wall which saw over 450 miles built during his first term.
  • More Security: Trump will “fix our borders” and stop unauthorized entry, he says border security is key to American safety.

While Trump’s plans have practical and legal obstacles, his influence on the judiciary and potential congressional support will make it more doable this time around. But implementing such a massive program will require navigating logistical challenges, getting funding and overcoming legal hurdles.

Congressional Role in Challenging Immigration Policies

Congress will have a big role in responding to Trump’s immigration plans. Lawmakers can limit funding, exercise oversight and shape legislation.

  • Funding Control: Congress can restrict funding for immigration enforcement and detention facilities which will limit the scale of Trump’s deportation efforts. By blocking additional funding for ICE and CBP, Congress can limit the capacity for mass deportations and detention camp expansions.
  • Oversight and Accountability: Congress can exercise oversight by holding hearings, issuing subpoenas and holding federal agencies accountable for civil rights. Pro-immigrant lawmakers are working to hold agencies accountable for any abuse.
  • Alternative Legislation: Pro-immigrant lawmakers are pushing for legislation that provides clear immigration pathways, protects families and humane border management.

Defending American Values: Changing the Narrative

A big part of resisting Trump’s immigration agenda is to change the national conversation around immigration.

  • Public Education and Awareness: Advocates are educating the public about the contributions of immigrants and the harm of extreme enforcement. By sharing stories of immigrant families and American values, advocates hope to counter xenophobic narratives.
  • Polling and Research: Studies show most Americans support balanced immigration policies with a path to citizenship and humane treatment of immigrants. Advocates are using this data to drive public campaigns and legislative agendas.

Response:

  • Community Engagement: Advocacy groups are mobilizing local communities to support inclusive immigration reforms and counteract fear-based narratives.
  • Advocating for Humane Policies: By pushing for fair and humane immigration policies, advocates will shape future immigration reforms and protect all residents.

Biden Administration Preparing for Border Surge Before Trump Takes Office

With Donald Trump’s election, the Biden administration is preparing for a border surge at the southern border as immigrants try to get in before Trump’s policies kick in.

  • Last-Minute Entries: With Trump’s tougher border policies coming, some experts say there could be a wave of migrants trying to get into the U.S. before he takes office. This “last-chance” influx will put more pressure on already overwhelmed border resources.

The Department of Homeland Security (DHS) has started developing contingency plans, expecting some migrants to try to get into the U.S. before the inauguration, fearing Trump’s policies.

DHS Meets to Discuss Border Readiness

  • Planning Session: DHS Secretary Alejandro Mayorkas met with CBP and ICE officials to discuss preparing for a migrant surge. Topics included ICE bed space, managing asylum claims and processing times for those not eligible for asylum.
  • Capacity Issues: Can DHS process a surge of migrants fast enough to avoid releasing into the U.S. due to capacity?

Migrant Messaging Causes Border Closure Fears

  • WhatsApp Activity: Since Trump’s election, immigrants and smugglers have been messaging on WhatsApp saying “now is the time to come to the U.S.” These messages are common on migrant routes and reflect fear that Trump will close the border as soon as he’s in office.
  • Misinformation Spreading: Messages on WhatsApp are spreading false information, some saying the cutoff is January 10 instead of January 20, Trump’s inauguration date.

CBP’s Message to Migrants: “Don’t Believe Smugglers”

Don’t Enter Illegally: A CBP spokesperson told migrants to use safe and legal entry methods and not to believe smugglers. CBP said U.S. immigration laws are still in effect and migrants should use legal channels.

Smugglers Take Advantage of Trump’s Return to Push Migrants to Cross Fast

  • Shelters in Mexico on High Alert: Shelters along the U.S.-Mexico border are preparing for a surge of migrants seeking temporary housing before trying to get into the U.S.
  • Shelter Operators Worried: In Tijuana, Gustavo Banda, who runs the Templo Embajadores de Jesus shelter housing around 1,400 migrants, said smugglers, or “coyotes,” will pressure migrants to try to get in before Trump takes office. Despite the uncertainty, Banda is trying to keep migrants calm and remind them no policies have changed yet.
  • Nogales Shelter Ready: Francisco Loureiro, who runs a shelter in Nogales, has seen increased anxiety among migrants, many of whom use CBP’s ONE app for asylum appointments. He’s recently prepared his facility for an influx.

Migration Caravan in Mexico Heads to Northern Border

  • From Chiapas: A caravan has recently left Chiapas, near the Guatemala border, and is moving north. Caravans are common but the timing has raised concerns that more migrants will head to northern border areas like Nogales before Trump’s policies kick in.

Economic and Logistical Costs of Mass Deportations

Carrying out Trump’s deportation plan would require massive resources. The Supreme Court has previously ruled on issues related to citizenship rights and equal access to education, which could play a significant role in the legal challenges against such mass deportation policies when the Trump administration regains office.

Let’s get into it:

Financial

  • Cost: According to the American Immigration Council, deporting one million people a year would cost around $1 trillion over a decade. That’s for increased staffing, detention facility expansion and transportation.
  • Economic Impact: Deporting millions could shrink U.S. GDP by 4.2% to 6.8% over a decade as undocumented workers fill essential jobs in industries like agriculture, construction and caregiving.

Workforce

  • Industries at Risk: Agriculture, hospitality and healthcare rely heavily on undocumented workers. Sudden deportations would lead to severe labor shortages, increased costs and delays in goods and services.
  • Inflation: Removing millions from the workforce would drive up inflation as the economy adjusts to decreased productivity and rising labor costs in those industries.

Tax Revenue Loss

Contribution: In 2022, undocumented immigrants paid around $100 billion in federal, state and local taxes. Their removal would reduce tax revenue and strain government resources, impacting public services like schools and infrastructure.

Social and Family Impact: Lives Upended and Communities Rocked

Trump’s deportation plan would devastate families, especially mixed-status households. Here’s what it would look like:

Family Separations

  • Citizen Children: 4.4 million U.S. born children have at least one undocumented parent. Mass deportations would put these children at risk of being separated from their parents and facing emotional and economic hardship.
  • Community Trauma: Deportations on this scale would disrupt entire communities. As seen in Tennessee, raids leave children without caregivers, cause spikes in school absenteeism and require emergency support from local organizations.

Chilling Effect on Immigrant Families

  • Access to Public Services: Many undocumented individuals will avoid hospitals, schools and public services due to fear of deportation. During Trump’s first term, immigrant families limited their outings and public activities to reduce their chances of running into immigration enforcement.
  • Health and Safety Risks: Avoiding healthcare services would put entire communities at risk, especially those where undocumented workers hold frontline jobs in essential industries like healthcare, sanitation and food service.

The Political Landscape and Anti-Immigrant Sentiment

Public support for stricter immigration enforcement has increased and recent polls show a majority of Americans support deporting millions of undocumented individuals. Trump has exploited this sentiment, framing immigration as a threat to American identity, economic stability and national security. His language has gotten more extreme:

  • Xenophobic Language: Trump regularly describes immigrants in a negative light, saying they “poison the blood” of the nation and “destroy the fabric of our country”. This kind of language not only creates fear but dehumanizes immigrants and shapes public opinion.
  • Misinformation: Trump has spread lies that undocumented immigrants contribute to crime and other social ills. Studies show that immigrants, including undocumented ones, are less likely to commit crimes than U.S. born citizens.

Contingency Planning: What Advocates and Communities Are Doing

Ahead of potential policy changes, immigrant rights organizations are mobilizing and preparing legal responses:

Emergency Toolkits and Rapid Response

  • Resource Distribution: Advocacy groups are creating toolkits for communities to respond to workplace raids and ICE operations, so affected families can know their rights and get legal help.
  • Community Networks: Local organizations are preparing to provide support through networks of volunteers, legal experts and community leaders who can offer rapid assistance.

Legal Challenges and Advocacy

  • ACLU and Other Legal Organizations: Groups like the ACLU will challenge Trump’s policies in court, especially around issues of constitutionality like birthright citizenship and ideological screenings.
  • Public Awareness Campaigns: Immigrant rights groups are educating the public on the facts of Trump’s proposals, to debunk myths and highlight immigrants’ economic and social contributions.

Life Under Threat: A Look Back at the 2018 Tennessee Raid

As a snapshot of what an aggressive enforcement strategy might look like, let’s remember what happened in 2018.

In 2018, almost 100 workers were arrested in a massive immigration raid at a meatpacking plant in Tennessee, including Nayeli, a mother and long-time plant employee. The raid, with helicopters and federal agents, left a community in shock. Children came home to find their parents missing and hundreds of students were absent from school the next day. For many families the fear and trauma still lingers.

Nayeli, one of those arrested and released, still fears these big raids will come back. She now organizes for immigrant rights in her community and advocates for protections and policies that recognize immigrants’ contributions. Her story shows the human impact of immigration raids and what many fear could happen on a much bigger scale.

What to Expect from the Second Trump Administration on Employment-Based Immigration?

With Trump back in the White House, big changes are coming to U.S. immigration policies, especially for employment-based immigration. From stricter visa requirements to program terminations, Trump’s second term will increase scrutiny and add new restrictions. Employers and visa holders should prepare now by understanding what’s coming and taking proactive steps to minimize risk.

Key Takeaways: Get Ready for Immigration Changes

  • Act Fast: Employers and visa holders should speed up application processes and file now under current rules.
  • Expect Delays and More Scrutiny: Higher RFE rates and delays in visa approvals are likely under a new, tougher regime.

H-1B Visa Holders and H-4 Spouse Work Authorization

More Scrutiny and Requirements

  • H-1B Petition Scrutiny: Expect more scrutiny of H-1B petitions, especially around job requirements, which could lead to more RFEs and denials.
  • Specialty Occupations and Documentation: Petitioners may need to provide more detailed evidence of the field of study and skills required for the H-1B position, especially for positions with third-party worksites. This could include contracts and Statements of Work (SOW) for the entire employment term.
  • Salary Increases: Employers may need to raise H-1B salaries, as previous attempts have included pushing for higher salary caps.

H-4 EAD (H-4 Spouse Work Authorization)

  • H-4 EAD Rescission: The Trump administration previously tried to end the H-4 EAD program and could do so again. If rescinded, H-4 spouses would lose work authorization.
  • Impact of “Bundled Processing”: Currently, H-1B, H-4 and H-4 EAD applications can be filed together for faster processing. This practice may end, causing delays in work authorization renewals and employment gaps for H-4 spouses.
  • EAD Auto-Extensions: Automatic work authorization extensions during renewal processing may be limited, adding complexity and risk for H-4 workers waiting for EAD renewals.

Visa Interview Waiver (Dropbox) and Processing Delays

Trump’s administration may eliminate the visa interview waiver (or “dropbox”) for visa renewals which would mean:

  • Longer Processing Times: Eliminating the dropbox would mean more in-person interviews, slowing down the process and creating backlogs.
  • Third-Country Nationals: The Department of State may limit visa interview availability at third-country U.S. consulates, extending wait times for renewals and initial visa applications.

L-1 Visa Holders and More Restrictions for Specialized Workers

L-1 Intra-Company Transfers

  • Higher Denial Rates for L-1B: L-1B (specialized knowledge workers) will likely face more scrutiny, requiring detailed explanations of job duties and specialized skills.
  • L-2 Spouse Work Authorization: The automatic work authorization rule for L-2 spouses could be eliminated, meaning they would need to apply separately and potentially face employment gaps.

Visa Interview Waivers and Renewal Delays

  • Remove Dropbox Eligibility: Like H-1B visa holders, L-1 visa applicants may lose the ability to file dropbox renewals, which would mean longer wait times and less predictable processing.

F-1 Students and OPT/CPT Changes

Trump’s administration may re-impose strict work authorization rules for F-1 students:

Curriculum Practical Training (CPT) and Day-1 CPT

  • Greater Scrutiny: F-1 students will face more scrutiny, especially those who use “Day-1” CPT. Documentation and compliance will be key as USCIS may require more evidence of eligibility.

STEM OPT Program

  • STEM OPT Elimination: Although STEM OPT survived previous challenges, Trump could still try to rescind it. New restrictions on third-party work placements or the extension period could also be added.

Unlawful Presence Rule

  • Immediate Unlawful Presence for Status Violations: A previous rule attempted to make F-1 students unlawfully present immediately upon status violation. Although blocked by the courts, it could be re-introduced.

Green Card Applicants: Processing and Visa Availability

Employment-Based Visas

  • Caps on Immigrant Visas: Trump has proposed limiting immigrant visas, including employment-based visas, for countries with high backlogs like India and China. This would require Congressional approval but is possible with a Republican-majority Congress.

PERM Labor Certification Delays

  • Longer Processing Times for Labor Certifications: Underfunding for Department of Labor (DOL) resources could mean even longer processing times for prevailing wage determinations and PERM certifications, potentially months of delays for green card applications.

Public Charge Criteria and EAD/AP Validity Terms

  • New Public Charge Rules: Trump may tighten public charge rules making it harder to prove financial independence.
  • Shorter Validity for Work and Travel Permits: Currently, Employment Authorization Documents (EAD) and Advance Parole (AP) permits can be valid for up to 5 years; the administration may shorten the validity to 1 or 2 years, adding more renewals for applicants.

Lawful Permanent Residents (LPRs) and Naturalization Challenges

More Vetting for Naturalization

  • Tougher Civics Test: Trump’s previous administration tried to make the civics test harder for naturalization. This could come back, making the process more difficult for those seeking U.S. citizenship.

Procedural Challenges for Green Card Holders

  • More Documentation for Sponsorship: Family members of green card holders or U.S. citizens may need more documentation, especially if public charge rules expand.

Temporary Protected Status (TPS) and Visitor Visa Applicants

Limiting TPS Eligibility

  • Fewer TPS Countries and Duration: Trump may try to restrict the TPS program by reducing the number of eligible countries or time frame, affecting those relying on TPS for work and residency authorization.

Longer Visa Wait Times and Entry Restrictions

  • Longer Wait for Visitor Visas: If the visa interview waiver program is reduced or eliminated, expect longer wait times for B-1/B-2 visitor visas, especially for countries flagged for high risk.

What to Do: Minimize Your Exposure

Take proactive steps now to mitigate some of the risks:

  • File Now: Employers should file H-1B and L-1 petitions as soon as possible to avoid future restrictions. Consider bundling H-4 EAD applications with H-1B or H-4 petitions for concurrent processing.
  • Use Premium Processing: For faster response times, use or upgrade to premium processing when available.
  • Get Visa Stamps and Renewals: Get visa stamps now to avoid future processing delays.
  • H-4 EAD Alternatives: With H-4 EAD at risk, look for other work authorization options.
  • Be Prepared for More Documentation: F-1 students on CPT and OPT, especially those on Day-1 CPT, should comply with all regulations and keep detailed records.

While President Trump’s reelection may introduce significant changes to immigration policies, early preparation and professional guidance can help you navigate potential challenges. By submitting applications promptly, strengthening financial records, and anticipating stricter rules, you can increase your chances of success.

Don’t face these changes alone—seek professional assistance to ensure your application meets all requirements. Stay proactive, stay informed, and take action to protect your immigration goals.

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

Will Trump End DACA?

Donald Trump is back in office January 20, 2025, and DACA is once again on everyone’s mind. Over 500,000 people currently have DACA protections and are wondering if they will lose those protections and possibly face being placed in removal proceedings?

“Our Home is Here”: How Dreamers are Preparing for a Trump Presidency

Why This Matters

3.6 million Dreamers in the U.S. but only a fraction have legal status.

530,000 are currently enrolled in DACA, down from 800,000. 1/3 of DACA holders live in California.

DACA doesn’t offer a path to citizenship but allows recipients to live, work and drive in the U.S.

As Trump takes office in January, the future of DACA is uncertain. With Trump’s deportation promises, advocates are calling for action now to protect current status and navigate the uncertain future.

Advocates are telling beneficiaries to renew now and prepare for policy changes.

What is DACA?

DACA was established by executive order by President Barack Obama in 2012 and provides temporary protection from deportation and work permits to undocumented immigrants brought.

To qualify, you must:

  • Age: Under 31 as of June 15, 2012 (born after June 16, 1981).
  • Entry Age: Entered the U.S. before 16th birthday.
  • Residency: Continuous U.S. residency since June 15, 2007 up to application date.
  • Physical Presence: Present in the U.S. on June 15, 2012 and at time of application.
  • Legal Status: No lawful status as of June 15, 2012.
  • Education or Military Status: Currently in school, graduated, GED, honorably discharged from U.S. Armed Forces or Coast Guard.
  • Criminal History: No felony convictions, significant misdemeanors or three or more other misdemeanors and no threats to national security or public safety.

There are currently 530,000 Dreamers. But the program is temporary and in legal limbo. Courts have ruled a president can end DACA if done properly so the program is precarious.

Key features:

  • Residence Authorization: Can live in the U.S.
  • Work Permits: Can get work authorization.
  • Employer-Sponsored Health Insurance: Some get health insurance through their job.
  • Educational Opportunities: Many use DACA to pursue higher education and professional certifications.

There are about 530,000 Dreamers nationwide, but new applications have been blocked since 2017. 160,000 of those are in California.

Under Biden, advocates tried to defend DACA, including appealing the Texas district court’s ruling that the program is illegal. He also expanded medical insurance coverage for DACA holders. If Trump tells the Justice Department to drop those appeals, DACA will be terminated. The government could also use the information provided by DACA applicants to deport.

Personal Stories: What happens if I lose DACA

For many, the end of DACA is not just a policy change, it’s a life changing event. Here are a few profiles in courage:

  • Hans Miguel Esguerra hasn’t been to the Philippines in over 20 years and is worried about supporting his family if his work authorization expires.
    • “It’s not just me I’m preparing for,” he said. “This affects my family and the support I give them.”
  • Financial challenges are already hitting recipients like delayed renewal processing and debt and employment gaps.

Ramiro Luna: Advocating and Anxious

  • Community Leader: Luna, 41, is the executive director of Somos Tejas, a nonprofit that does political advocacy.
  • Living in Fear: Despite his work in immigrant communities, Luna admits the emotional toll of living under an anti-immigrant administration.
  • Family Worries: His mom’s deep fear of deportation is what many immigrant families are worried about.

Karina Serrato Soto: Planning for the Worst

  • Building a Life: Serrato Soto, a middle school math teacher and mom of two U.S. born kids, has managed to buy a house and put down roots in Dallas.
  • Parental Precautions: She’s asked her legally living mom to take care of her kids if necessary—a reality her mom can’t accept.
  • Emotional Burden: The deportation threat has weighed heavily on Serrato Soto and her family.

Jonathan Alvizo: Climbing Walls

For Jonathan Alvizo, 30, an art director and DACA recipient, the program is a blessing and a curse.

  • Early Arrival: Alvizo arrived in the U.S. in 2001 at 6 years old, two weeks before 9/11.
  • Life with DACA: While he’s thankful for the work permits and deportation protection, he says it’s like “climbing a wall and falling back down.”
  • Future Worries: With Trump’s history of trying to dismantle the program, Alvizo’s sense of security is shaky.

In the meantime, resilience is key in the immigrant community. Advocates and recipients will fight to keep their rights and stay here.

  • Our home is here, and we mean it,” says Macedo do Nascimento, summing up the unshakeable spirit of the Dreamers

The Policy Reversals

Trump’s first term was tough on undocumented immigrants:

  • Family separations at the border.
  • Trying to end DACA, which was blocked by the Supreme Court in 2020 due to procedural issues.

Advocates worry those policies will return and create fear among DACA recipients and their families.

Trump’s History with DACA

In 2017, during his first term, Trump tried to terminate DACA, citing its legality. The decision was met with immediate lawsuits. In 2019, the Supreme Court ruled against the administration, saying it didn’t provide a valid reason to end the program. Despite that, lawsuits against DACA have continued. In 2021, a federal judge declared the program unconstitutional, blocking new applicants.

Current Situation and Legal Landscape

The DACA lawsuits are far from over. Experts say the case will go to the Supreme Court again, possibly as late as summer 2026. In the meantime:

  • Renewals for current DACA recipients are open, two-year terms.
  • Research shows the program’s effects: 50% drop in undocumented college students in California since restrictions on new DACA applications.
  • Many are no longer eligible for other forms of immigration relief, so they’re more dependent on DACA.

What to Expect Under the Trump Administration

During the campaign, Trump talked tougher on immigration, so DACA is in danger again.

Trump’s second term is full of uncertainty. He hasn’t said what he’ll do to DACA, but his campaign focused on stricter immigration and mass deportations. Legal and political analysts say there are several possibilities:

1. Terminate DACA

Trump could try to end the program again, maybe this time with a more calculated approach to address past court criticisms. He might provide a detailed reason to meet legal standards, like broader immigration policy goals.

Trump may end DACA altogether, stop new applications and renewals. That would:

  • Take away work permits from Dreamers.
  • Put them at risk of deportation.
  • Disrupt their lives and communities.

2. Let It Play Out the Courts:  Supreme Court Decision

  • With a conservative Supreme Court, Trump may choose to let the judicial process unfold and avoid political fallout. If the court rules against DACA, recipients will face immediate uncertainty.

3. Renewal Restrictions

The administration could limit renewals or tighten eligibility requirements:

  • Tougher background checks.
  • Shorter renewal periods.
  • No new applications.

This would leave Dreamers in limbo and more vulnerable.

4. Work Authorization Changes

Work permits, the heart of DACA, could be changed. Possible changes:

  • Limit the types of jobs Dreamers can work.
  • Shorten work permits.
  • Increase fees for renewal applications.

This would impact Dreamers’ financial stability and career prospects.

5. Push for Immigration Legislation

Public sympathy for Dreamers, many of whom are students or essential workers, might keep Trump from acting immediately. Instead, he could focus on other immigration priorities like border security or visa restrictions.

Trump might push for comprehensive immigration reform. That could mean:

  • A legislative solution for Dreamers in exchange for border security.
  • Limits on family-based immigration.

Effects on DACA Recipients

The uncertainty around DACA has big implications for recipients. Most are in their late 20s and have built their lives around the program. For many, DACA is not just a legal status but a lifeline to:

  • Higher education, including grad school.
  • Job security and career advancement.
  • Financial stability, including access to loans and mortgages.

Without DACA, recipients will face big disruptions: job loss, deportation risk and reduced access to resources.

Effects on Education and Financial Aid

Federal Student Aid

Current proposals would limit access to federal student loans and grants to institutions that offer in-state tuition to undocumented immigrants, including Dreamers. If that happens:

  • Affected States:
    • 26 states and Washington, D.C. where Dreamers currently qualify for in-state tuition would have to decide whether to keep eligibility or lose federal funding.
  • Student Impact:
    • Barriers to higher education and limited financial aid for Dreamers and U.S. citizens.

State Impact

  • States like California, Texas and New York with large undocumented student populations will have to make tough decisions on funding and tuition policies.
  • State legislatures will have to pass new laws to protect educational opportunities for Dreamers.

Workforce Impact

  • Educational Disruption: Reduced access to higher education will limit Dreamers’ ability to enter skilled professions.
  • Economic Consequences: Fewer opportunities for Dreamers will mean a less diverse and skilled workforce for industries that rely on them.

What Dreamers Can Do

Experts advise eligible DACA recipients to renew as soon as possible. Renewals currently take 4 months and may take longer under Trump. Consider:

In case of changes, proactive steps can help Dreamers cope with this uncertainty:

1. Renew Early

  • Submit renewal applications as soon as possible to avoid gaps in status.

2. Stay Informed

Follow reliable news and government sources for updates.

  • Join support networks and advocacy groups for timely updates and resources.
  • U.S. Citizenship and Immigration Services (USCIS)
  • Immigration law firms
  • United We Dream

3. Get Legal Advice

  • Talk to an immigration attorney to:
    • Know your rights.
    • Explore options.
    • Plan for contingencies.
    • Review changes with your attorney regularly to stay ahead of the curve.

4. Other Relief Options

May Include:

  • Family-based petitions.
  • U visas for crime victims.
  • Asylum claims.
  • Adjustment of status through marriage or employment sponsorship if eligible.
  • An immigration attorney can help you determine the best options for your situation.

5. Financial and Career Resilience

  • Online or part-time education to minimize costs while keeping skills up-to-date.
  • Save for legal and renewal costs to manage uncertainty.

6. Documentation:

Make sure personal and legal documents are up-to-date and accessible.

Moving Forward

DACA is temporary so we need a permanent solution for Dreamers. As policies change, the push for stability and recognition of Dreamers’ contributions will continue. If you’re affected by these changes, get support and be proactive about your future.

Support for Dreamers

Organizations like Sacramento State’s Dreamer Resource Center help undocumented students. These centers offer:

  • Legal clinics and consultations.
  • Financial aid guidance.
  • Mental health and wellness support.
  • Advocacy for inclusive policies.

Business and Community Leaders

  • Business leaders must stand up for their DACA employees who are part of the workforce.
  • DACA recipients work in essential jobs like teaching and nursing so they are vital to the community.
  • Advocate: Join local and national campaigns for immigration reform and for Dreamers.
  • Network: Connect with community organizations that offer resources, legal help and emotional support.

Legal Challenges and Ongoing Advocacy

The Biden administration’s push to codify DACA faces legal obstacles:

  • The Fifth Circuit Court of Appeals is still reviewing the program.
  • States are challenging expansions like including DACA recipients in the Affordable Care Act marketplaces.
  • Initial DACA applications have been on hold since 2021.

The National Immigration Law Center (NILC) plays a pivotal role in the fight against anti-immigrant policies, emphasizing the urgency and determination to protect DACA recipients and advocate for the rights of all immigrants.

Advocacy in Action

United We Dream is mobilizing to defend DACA from a potential GOP-led White House and conservative Supreme Court:

  • “We weren’t going to get caught by surprise again,” said Juliana Regina Macedo do Nascimento, a DACA recipient and advocate.
  • Groups will challenge anti-immigrant policies and protect the most vulnerable.

Despite all this immigrant advocacy groups are preparing for the worst.

Understanding DACA: Origins and Challenges

What Is DACA?

  • Established in 2012: Initiated through executive action by President Barack Obama.
  • Eligibility Criteria: Protects undocumented immigrants who entered the U.S. as children before 2007, allowing them to obtain work permits and avoid deportation.
  • Renewal Process: Recipients must renew their status every two years, a process fraught with uncertainty.

Political and Legal Threats

  • Trump Administration’s Stance: Trump previously sought to terminate the program, but the Supreme Court blocked his efforts in 2020.
  • Current Legal Battle: A 2023 ruling declared the program illegal due to its creation via executive action. The Biden administration has appealed, leaving the program’s fate in the hands of the courts.
  • Congressional Challenges: With Republicans gaining control of Congress, legislative solutions for DACA recipients appear unlikely.

DACA by the Numbers

  • Active Recipients: Over 535,000 individuals currently benefit from the program.
  • Demographics:
    • Country of Origin: The majority are from Mexico, followed by El Salvador and Guatemala.
    • State Distribution: Most recipients reside in California, Texas, and New York.
  • Public Opinion: Polls consistently show that most Americans support a pathway to legal status for DACA recipients.

DACA Court Case Updates: What’s Happening in the Courts

The Deferred Action for Childhood Arrivals (DACA) program, which gives deportation protection and work authorization to over 500,000 undocumented individuals brought to the U.S. as children, is under attack in the courts.

Despite changes in the policy and ongoing processing of renewal requests, initial DACA requests are currently prohibited as dictated by a federal district court of ruling.

On September 13, 2023 a federal judge ruled the revised DACA policy is unlawful, just like previous previous rulings.

This adds to the uncertainty around DACA’s future as the decision has been appealed to the U.S. Fifth Circuit Court of Appeals and that case is ongoing.

Without protections, DACA recipients are at risk. So we need legislation.

The Supreme Court could decide the program’s fate in the next two years.

Current Status and Recent Court Activity

An October 10, 2024 hearing in federal court may end up determining the fate of the Deferred Action for Childhood Arrivals (DACA) program. Here are the arguments, what’s at stake and what could happen.

Fifth Circuit Court of Appeals: Update

  • Status: The Fifth Circuit Court of Appeals is considering the legality of DACA. Oral arguments were held on October 10, 2024. The decision could be big for the program and thousands of DACA recipients.
  • Background:

Texas Argument: Financial Burden on States

  • Increased State Costs: Texas says DACA recipients use public resources like healthcare and education and that costs to the state.
  • Terminate: Texas Attorney General Ken Paxton says ending DACA would reduce these costs as recipients would leave the U.S. if the program is ended.
  • Quote from Texas: “DACA imposes significant financial burdens on states like Texas and we should just get rid of it,” Paxton said.

Biden Administration’s Argument: Protecting DACA Recipients

  • Texas Right to Sue: The Biden administration argues Texas doesn’t have standing to challenge DACA, citing a recent Supreme Court decision that limited Texas’s standing in a similar immigration case.
  • Protect Current DACA Recipients: Justice Department lawyer Brian Boynton asked the court to keep DACA protections for current recipients even if new applications are blocked.
  • Broader Impact: The Biden administration says ending DACA would upend the lives of thousands who have built careers, families and communities in the U.S., and argues that the executive authority allows the administration to protect these individuals.

The Judges

Judicial Panel: The case is before a three-judge panel:

  • Judge Jerry Edwin Smith – Reagan appointee
  • Judge Edith Brown Clement – Bush appointee
  • Judge Stephen A. Higginson – Obama appointee

Appeal: If the decision is adverse to DACA the case will go to the Supreme Court which previously blocked the Trump administration’s attempt to end the program but has not yet ruled on the legality of DACA.

Timing: A decision from the Fifth Circuit could come in a few months. This will either affirm or block DACA and will likely be appealed to the Supreme Court for the final decision.

Opening Briefs: 

Reply Briefs:

Supreme Court’s Involvement

  • Review: If the Fifth Circuit decides against DACA the Biden administration will likely appeal to the Supreme Court. The Court could then take the case and hear it as early as spring 2025.
  • Supreme Court Ruling: A decision will be huge. If the Court agrees with the Fifth Circuit, DACA would end and:
    • No Renewals: DACA recipients would not be able to renew.
    • Loss of Work Authorization: Over 500,000 would lose their right to work and could be deported.
    • Economic Impact: 1,000 DACA recipients would lose their jobs each week for two years if renewals stop.

Next Steps

Quotes from Supporters

Vice President Kamala Harris: A long-time advocate for DACA, Harris said, “As Attorney General of California, as a U.S. Senator and now as Vice President I’ve fought to defend and protect DACA. We must get a path to citizenship for Dreamers.”

  • Advocates worry: Ending DACA would harm recipients many of whom have lived in the U.S. most of their lives and have U.S. born children who depend on their ability to work.

FAQS on DACA in Light of Litigation

Tips for DACA Recipients

  • Understand the Injunction. USCIS is not processing initial DACA applications due to the injunction. Anyone applying as an initial applicant, including former DACA holders with a gap over one year, should know that their application will not be processed at this time.
  • Identify When and How to File for Renewal. Make sure you are aware of the importance of filing on time. You should file for renewal within 120-150 days prior to expiration.
  • USCIS continues to process DACA renewal requests despite ongoing legal challenges. This ensures that current grants and renewals will be honored until expiration unless individually terminated.
  • Understand Advance Parole Benefits and Risks. Educate yourself on advance parole benefits if you have immediate family members. This travel authorization can help certain relatives adjust status. Talk to a lawyer about inadmissibility risks that could complicate reentry especially if you have a criminal record.
  • Screen for Other Immigration Relief. Consider other immigration options as DACA recipients may have other paths to relief or permanent residency. A deeper dive into your situation may reveal new eligibility based on changed circumstances, such as the U Visa for Victims of Crime. Look into relief options in removal proceedings such as VAWA or non-LPR cancellation.
  • Follow Legislative Updates. Stay informed on any legislative changes that could open up paths to permanent residency for DACA recipients.

A History of DACA Legal Challenges

As they say, to know what the future holds, you have to know the history. It is important to know the history of DACA litigation, and the opposition that really gained momentum starting in 2017.

Early Challenges and Supreme Court Review in 2020

  • Initial Legal Battles: The DACA program was created in 2012, was modified in 2014, but faced intense opposition in 2017 when the Trump administration tried to end it. Lawsuits followed and in 2020 the Supreme Court ruled that the termination was procedurally improper and DACA could continue.
  • Procedural Focus: The Supreme Court’s 2020 decision did not address whether DACA was legal; it only found that the Trump administration didn’t follow the process.

Judge Andrew Hanen’s Decisions

DACA Timeline & Key Decisions

  • 2012: DACA was created under Obama administration to protect young people who were brought to the U.S. illegally as children and gave them work permits and relief from deportation.
  • 2018: Texas and nine other states sue DACA. Claims: Texas argued that the Department of Homeland Security (DHS) violated the procedural and substantive requirements of the Administrative Procedures Act (APA) and the Constitution’s Take Care clause.
  • 2020: Supreme Court rules the Trump administration’s attempt to end DACA was procedurally improper and DACA can continue temporarily.
  • 2021: Judge Hanen rules DACA is illegal, blocks new applications but allows renewals. Hanen ruled DACA was illegal because it didn’t go through the formal rulemaking process required for federal regulations.
  • 2022: Biden administration issues a DACA rule. In response to ongoing lawsuits, the Biden administration issued a final rule to formally codify DACA hoping to make it legal. But Judge Hanen blocked that rule and this is the current ruling.
  • 2023: Judge Hanen who has previously ruled against DACA said the Biden administration’s attempt to codify the program into a federal regulation was illegal. Those already in the program will continue to have status for now. New DACA applications are still blocked as they are not allowed to apply. Hanen sympathized with DACA recipients and their families but said only Congress can create immigration laws. He said the Executive Branch can’t bypass Congress to implement policies even to address emergencies.
  • 2024: The Fifth Circuit is currently hearing the appeal of Hanen’s ruling. A decision is pending which can be appealed to the Supreme Court.

Wider Impacts on Dreamers and Their Families

The Economic and Social Consequences of Ending DACA

  • Workforce Contributions: DACA recipients are a big part of the U.S. workforce, with over 300,000 Dreamers working in healthcare, education and business services. Their contributions are worth around $14 billion annually.
  • Family and Community Effects: One-third of DACA recipients are married and many have U.S. born children. Ending DACA would affect not only the recipients but also their families and communities, including around one million U.S. citizens who live in households with a DACA recipient.
  • Financial Losses: If DACA ends, states will lose over $150 billion in tax revenue and hundreds of billions in economic contributions.

Congress Inaction and Need for Legislative Fix

Why Congress Must Act

  • Stalled Process: Since DACA was created in 2012, there has been no movement in Congress to pass a bill to create a permanent solution for Dreamers.
  • Eligibility Limitations: DACA’s eligibility requirements which require applicants to have been in the U.S. since 2007 have not been updated. This excludes a big chunk of young immigrants who have arrived since then and are otherwise eligible.
  • Ineligible Dreamers: There are around 2 million young immigrants in the U.S. without DACA protections, 400,000 of whom would be eligible but can’t apply due to court injunctions. Most undocumented high school graduates today are not eligible under current DACA rules.

Recent Actions by the Biden Administration

  • Expanded Parole: The Biden administration has introduced measures to expand “parole in place” for the spouses of U.S. citizens, giving potential temporary relief to some Dreamers and their families. This is now been struck down in federal court.
  • Simplified Waiver Process: Changes to the D-3 waiver process will reduce obstacles for some Dreamers to have a legal way in on a work visa and potential green card.

Need for Legislation

  • Congress’s Job: While administrative actions give temporary relief, only Congress can pass a permanent solution, a pathway to citizenship for Dreamers.
  • Take Action: As DACA is in legal limbo, advocates say we need a legislative fix that will give permanent protection and stability to Dreamers.

Biden’s New Policy Makes Work Visa Process Easier for U.S. Graduates and Dreamers

On June 21, 2024, the Biden administration announced a new policy to simplify the work visa application process for foreign nationals educated in the U.S., including DACA recipients, also known as Dreamers.

This will help highly skilled individuals who graduated from U.S. colleges and universities to stay in the country and contribute to the economy.

Policy Highlights

  • What’s New: U.S. graduates, including DACA recipients, can now apply for work visas faster if they have a job offer in their field. For DACA holders, it is complicated. See below.
  • Objective: This policy will keep highly educated individuals as they can contribute to U.S. competitiveness and innovation.
  • Broader Context: This fits with the administration’s overall approach to support immigrants, especially Dreamers, by recognizing their value to the U.S. workforce and society.

Policy: Easier Pathways for High Skilled Workers

  1. Simplified Application Process
    • Clarification and Changes: The government will simplify and speed up the employment visa application process so it’s more clear and accessible for skilled graduates, including DACA recipients.
    • Why: By doing so, the administration hopes to make it easier for highly educated immigrants to stay in the U.S. and fill jobs in various fields.
  2. U.S. College Graduates First
    • Eligibility: The new policy doesn’t change the basic requirements for work visas like H-1B. But there may be prioritization for applicants who graduated from U.S. colleges, including Dreamers.
    • How it Works: Details are still to be announced but it may involve giving preference to applicants with U.S.-based education which could increase their chances in the selection process.
  3. Waivers for Prior Unlawful Presence
    • Waiver Changes: For individuals with prior unlawful presence in the U.S., the policy will provide more clarity and speed up the waiver process.
    • Consular Discretion: Consular officers will have more discretion to recommend waivers for applicants and DHS will grant them. This could give Dreamers more flexibility to get visas despite past immigration issues.
  4. National Interest
    • Retention: The U.S. government considers retaining foreign-educated talent as in the national interest.
    • Employers and Talent Shortages: The policy also helps American businesses address talent shortages, especially in high demand areas.
  5. Expanded Definition of High Skilled Jobs
    • Job Categories: The government may expand the definition of “high skilled jobs” beyond STEM fields to include non-STEM roles that require advanced education and specialized skills.
    • More Fields: This could open up more visa paths for individuals in various fields and make the U.S. a more welcoming place for skilled workers.

Why This Matters for Dreamers

For Dreamers, this means a clearer pathway to long term stability in the U.S. Currently DACA only provides temporary work permits but H-1B visas provides a separate status and can lead to permanent residency.

  • Path to a Green Card:
  • Dual Intent: H-1B visas have “dual intent” which means recipients can work in the U.S. while pursuing permanent residency.
  • Employer Sponsorship: With an H-1B visa, employers can sponsor employees for a green card and a pathway to citizenship through EB-2 or EB-3.
  • Past Barriers: Many Dreamers faced barriers in getting work visas due to prior unlawful presence. This new policy could remove some of those barriers and give them more stable employment and immigration options.

Background and Issues

  • Historical Context: While Dreamers with degrees have been eligible for H-1B visas, the process was difficult because of prior unlawful entry which affected their ability to get certain benefits.
  • Legal Risk: With DACA’s legal status always under threat, some have been hesitant to apply for work visas (by leaving the U.S. and pursuing consular processing) fearing changes in DACA policies could affect their visa eligibility.

Streamlining the 212(d)(3) Waivers: For DACA Recipients, Dreamers and Others

The 212(d)(3) waiver, also known as the D-3 waiver, is a lifeline for DACA recipients and Dreamers applying for temporary work visas at U.S. Embassies. This waiver allows eligible individuals to get nonimmigrant visa status without facing years of exclusion from the U.S. By fixing this process, DACA recipients and others can get stable employment, pathway to permanent residency and potentially citizenship.

D-3 Waiver Updates

  • New State Department Policy (July 2024): The State Department updated the Foreign Affairs Manual to state that D-3 waivers for individuals with U.S. degrees who are offered U.S. based employment is in the public interest. This will prioritize and expedite the waiver process for qualified applicants.
  • Interagency Collaboration: The Department of Homeland Security (DHS) is working with other agencies to streamline the waiver process to support DACA recipients and other eligible individuals to get nonimmigrant employment based visas.

Why D-3 Waivers Matter for DACA Recipients and Dreamers

Overcoming Nonimmigrant Visa Barriers

  • Legal Pathways: DACA recipients and other Dreamers who have degrees and work skills can qualify for employment based visas such as the H-1B visa for specialty occupations.
  • Potential Block: Because many DACA recipients lived undocumented in the U.S. prior to DACA, they may be subject to immigration bars if they leave the country and will be restricted from re-entering the U.S. for up to 10 years. The D-3 waiver can temporarily lift these bars so they can re-enter the U.S. with a valid visa.

Eligibility and Impact

  • Educational and Workforce Readiness: According to FWD.us, 49% of DACA recipients have some college education and many have degrees:
    • 40,000 have associate degrees
    • 70,000 have bachelor’s degrees
    • 17,000 have advanced degrees
  • Employer Sponsorship: By being sponsored for work visas, DACA recipients can get stable work authorization which also benefits U.S. employers by allowing them to retain skilled employees.
  • Pathway to Residency and Citizenship: For certain visa categories like H-1B, sponsorship can create a pathway to permanent residency and ultimately citizenship.

Current D-3 Waiver Process and Issues

The current D-3 waiver process requires applicants to leave the U.S., apply for a visa at a U.S. consulate or embassy and wait for approval from the Department of State and DHS. This process is full of risks and uncertainties as applicants only find out the outcome after they leave the U.S. and can be away for a long time.

Key Issues

  • Inconsistent Processing Times: Processing times vary by location and are unpredictable for applicants and employers.
  • Risk of Extended Exclusion: If the waiver is denied, applicant may be barred from re-entering the U.S. for up to 10 years.
  • Employer uncertainty: Employers can’t retain skilled employees who are stuck outside the country.

D-3 Waiver Process Improvements

The new Foreign Affairs Manual updates are a step in the right direction. It states that it is in the public interest to admit individuals who have U.S. degrees or skilled credentials and that these cases should be prioritized.

Additional Reforms Needed

To make it even better:

  • Pre-Departure Waiver Approval:
    • Allow applicants to apply and get waiver approval before leaving the U.S. like the provisional unlawful presence waiver for green card applicants. This would reduce time outside the U.S. and increase chances of re-entry.
  • Centralized and Uniform Processing:
    • Designate specific embassies and consulates to process D-3 waiver requests so processing is centralized and applicants don’t have to travel as much.
    • Process at third country consulates so it’s easier and less expensive for applicants.
  • Consolidated Approval Process:
    • Consolidate waivers within DHS and DOS so the process is streamlined and uniform across all locations.

These wouldn’t create new visa categories, just streamline the waiver process for existing visa pathways so more eligible individuals can participate in the program.

Impact if Implemented

If done, this could benefit tens of thousands of DACA recipients, Dreamers and other qualified individuals:

  • Economic Benefit: Allowing individuals to get visas without long absences would strengthen the U.S. workforce across industries.
  • Employer Benefit: Streamlined waivers would allow employers to invest in and retain skilled workers, long term team stability.
  • Greater Certainty for Applicants: Predictable processing and pre-approval options would encourage more Dreamers and DACA recipients to apply for nonimmigrant visas and open up pathways to long term residency and citizenship.

The new Foreign Affairs Manual updates are a step in the right direction for a more streamlined D-3 waiver process but there’s more to be done. By having pre-departure waiver approvals, centralizing processing and standardizing across locations, DHS and DOS can make it easier for qualified individuals to get visas, return to the U.S. quickly and contribute to American society.

How to File for DACA Renewal

Deferred Action for Childhood Arrivals (DACA) grants work authorization and protection from deportation to eligible young immigrants who came to the U.S. as children. Despite ongoing legal challenges, courts are mandating the continuation of processing DACA renewal requests. With ongoing legal challenges and policy changes, it’s crucial to stay up to date. Here’s a comprehensive guide to DACA renewal eligibility, renewal application process, and how to navigate the process.

DACA Renewal Reminders

  1. Processing Time for Renewals
    • USCIS Processing Time: USCIS aims to process most DACA renewals within 120 days. Current data shows the median processing time for FY 2023 was about a month, but some requests in early FY 2024 took up to 2 months.
    • Filing Window: USCIS recommends filing between 120-150 days (4-5 months) before the current DACA period expires. Filing within this window minimizes the chance of status lapses and work authorization.
  2. Don’t File Early
    • Filing Early Doesn’t Expedite Processing: Filing your renewal more than 150 days before your current DACA expires will not speed up the process. Filing outside the recommended window may not get you any processing benefits.

Recent Court Decisions on DACA

  1. September 13, 2023 Court Decision on DACA’s Lawfulness
    • Judge’s Order: September 13, 2023, U.S. District Judge Andrew Hanen ruled the DACA Final Rule is unlawful. This decision expands a prior 2021 injunction, blocking new applications but allowing current recipients to stay in status.
    • Partial Stay: The judge’s order keeps existing DACA protections in place for current recipients. But no new applications will be processed under this order, although USCIS will accept initial applications and not take any action on them. While individuals may apply for consideration of DACA, the current regulations prevent DHS from granting initial DACA requests due to ongoing legal challenges.
  2. Current and New Applicants
    • Current Recipients: Those with valid DACA and EADs will keep their protections until their current period expires and can continue to live and work in the U.S. without fear of deportation.
    • New Applicants: USCIS will accept initial applications but cannot process them. Only renewals for existing DACA recipients will be reviewed.

DACA Eligibility

Basic Eligibility for Initial Applicants

Though initial applications are not being processed, it’s good to know the eligibility requirements in case of future changes. Applicants must meet:

  • Age Requirement: Under 31 as of June 15, 2012.
  • Date of Arrival: Arrived in the U.S. before 16th birthday.
  • Continuous Residency: Lived in the U.S. since June 15, 2007, up to the time of application.
  • Physical Presence: Physically present in the U.S. on June 15, 2012, and at the time of filing.
  • No Lawful Status: Had no lawful immigration status on June 15, 2012.
  • Education and Military Service: Currently in school, graduated from high school, GED, or honorably discharged from the military.
  • Criminal Record: Not convicted of a felony, significant misdemeanor or 3+ misdemeanors and not a threat to public safety.

Individuals who obtained their initial DACA status prior to July 16, 2021, are still recognized in terms of their current grants and related employment documents.

Age Requirements

  • Birthdate Cutoff: You must be born on or after June 16, 1981.
  • Under 16 on Arrival: DACA applicants must have arrived in the U.S. before 16 to be eligible.

How to File for DACA Renewal

1. Collect Supporting Documents

To support your application for DACA renewal, gather documents that prove you meet each eligibility requirement.

Examples of Required Documents:

  • Proof of Identity: Passport, national ID or government-issued photo ID.
  • Proof of Arrival Before 16: Passport stamps, school records or other immigration documents.
  • Proof of Continuous U.S. Residency Since June 15, 2007: School transcripts, employment records, pay stubs or medical records.
  • Proof of Presence on June 15, 2012: Rent receipts, utility bills, dated bank transactions or school records.
  • Proof of Educational or Military Status: U.S. high school diploma, GED or military discharge papers.

2. Fill Out the Required Forms

Applicants must fill out:

  • Form I-821D: Consideration of Deferred Action for Childhood Arrivals.
  • Form I-765: Application for Employment Authorization.
  • Form I-765WSWorksheet to support the work authorization request.

Note: Make sure to use the latest versions of these forms from the USCIS website, as older forms will be rejected.

3. Pay the Required Fee

DACA applications require a non-refundable filing fee of $85. There is no fee waiver for DACA but fee exemptions are available in limited cases for those who can’t afford the fee. I-765 filing fee if filing by paper is $520, and $470 if filing online.

Fee Exemptions: Limited Availability

USCIS offers fee exemptions for DACA applicants in extreme financial hardship. To be eligible, you must show one of:

  • Severe Disability: Unable to care for oneself due to a chronic disability, with an income below 150% of the poverty level.
  • High Medical Debt: $10,000 or more in medical expenses in the past year, with an income below 150% of the poverty level.
  • Minor with Limited Financial Support: Under 18 years old, income below 150% of the poverty level and homeless, in foster care or no family support.

Documentation for Fee Exemptions:

  • Affidavits from organizations.
  • Tax returns, bank statements or other income proof.
  • Medical records or bills to prove unreimbursed expenses.

Using a USCIS Online Account for DACA Applications

USCIS has an online account system for applicants to manage their DACA cases.

Benefits of a USCIS Online Account:

  • Track your case in real time.
  • Get updates and notifications directly.
  • Update your contact information and personal details easily.

For legal representatives, having a USCIS account allows you to manage multiple clients’ cases, making it easier to track DACA cases.

Travel for DACA Recipients

DACA recipients should be aware that some travel restrictions will impact their continuous residence.

  • Travel Before August 15, 2012: Short trips outside the U.S. before this date generally don’t affect eligibility.
  • Advance Parole Required: For travel after August 15, 2012, you must get advance parole or you will lose DACA and re-entry may be restricted. Unauthorized travel will result in termination of DACA.
  • How to Apply for Advance Parole: You can apply for advance parole for humanitarian, educational or employment purposes.

Criminal Convictions that Affect DACA Eligibility

Some convictions will disqualify you from DACA. These include:

  • Felony Convictions: Any felony is disqualifying.
  • Significant Misdemeanors: Domestic violence, DUI, drug trafficking, firearms offenses.
  • Multiple Misdemeanors: Three or more non-significant misdemeanors not from the same incident will disqualify you.

Protect yourself from Immigration Scams

USCIS warns applicants to beware of scams and get information only from official sources. Unauthorized individuals will promise faster service for a fee but they can’t expedite the process.

  • Find a Reputable Attorney: USCIS has resources to help you find licensed attorneys or accredited representatives. Always check the qualifications of any advisor before sharing personal info or paying fees.

DACA Fraud

Applicants should be aware of the serious consequences for lying on DACA applications.

  • Consequences of Lying: Fraudulent applications are a federal crime, punishable by fine or imprisonment. False statements can lead to deportation and impact future immigration opportunities.

Why Timing Matters for Renewal

To keep your DACA and Employment Authorization Document (EAD) benefits, you need to renew before your current DACA and EAD expires. Renewing too close to the expiration date can result in your EAD expiring and you may not be able to work legally and could start accruing “unlawful presence” which can impact future adjustments to a lawful immigration status.

USCIS Recommended Renewal Timeline

Apply 120-150 Days Before Expiration

USCIS advises DACA recipients to submit their renewal applications 120-150 days before their current DACA and EAD expiration date. This is called the “application window”. Applying within this window will avoid gaps in protection and work authorization.

The DACA Renewal Calculator at the end of this guide will help you find this 120-150 day application window.

Get Ready for Your Renewal

  • Check Your Expiration Date:
    Find the expiration date on your EAD. Use this date as your reference point.
  • Plan Ahead for Documents:
    Gathering required documents including any police records may take time. Plan ahead so you have everything ready for a smooth process.
  • Consult with an Attorney:
    Before applying, consult with a licensed attorney or accredited representative from a non-profit organization that specializes in immigration services. They can give you personalized advice based on your case.
  • Schedule Legal Help Early:
    It can take weeks to get an appointment with a legal service provider or find a free legal clinic. Start early so you can get the help you need.

DACA Renewal Calculator

  • Enter your EAD expiration date (example: January 01, 2024)
  • See the recommended dates to submit:
    • Submit AFTER: (Date 150 days before EAD expires)
    • Submit BEFORE: (Date 120 days before EAD expires)

Using this guide and calculator will help you avoid delays and stay protected under DACA. Always recommended to consult with a legal expert for specific situations.

What to Do Now: Renewal and Advance Parole

Renewal is still important to stay under DACA. Here’s what to consider:

  • Renewal Timing: U.S. Citizenship and Immigration Services (USCIS) recommends submitting renewal applications 120-150 days before expiration. Renewals are being processed quickly, in weeks or even days in some cases.
  • Wind-Down: Even if DACA is ruled unlawful, the courts may allow a 2-year wind-down, so recipients can renew and stay protected for a little while. This would give recipients time to explore other options.

Advance parole allows DACA recipients to travel abroad for:

  • Humanitarian Needs: Visit sick relatives, attend funerals or get medical treatment.
  • Educational Purposes: Participate in study abroad programs or academic conferences.
  • Employment Purposes: Attend international work assignments, interviews or training sessions.

Travel Risks: Although advance parole is still available, legal uncertainty is a risk. If DACA is terminated while you’re abroad, re-entry could be complicated. Always consult with a legal expert before traveling.

Potential for adjustment of status through marriage to US Citizen: Re-entry to the U.S. on advance parole, will cure the prior “entry without inspection,” thus making the DACA recipient eligible for adjustment of status through marriage to a U.S. citizen.

Long-Term Options for DACA Recipient

Since DACA is temporary, it’s important to explore other immigration options. DACA recipients should get screened regularly as life changes may open up new paths. Some options include family-based petitions, employment-based visas, U visas and more.

A. Family-Based Petitions

Family-based petitions allow certain family members to sponsor DACA recipients for permanent residency:

  • Immediate Relatives of U.S. Citizens: Spouses, parents and unmarried minor children of U.S. citizens can often apply without waiting for a visa to become available. This path is faster than others since it’s not subject to visa quotas.
  • Preference Category Relatives: Adult or married children of U.S. citizens and spouses or children of lawful permanent residents (LPRs) may have longer waits. These cases are subject to visa availability and may require additional steps.

For some, family-based petitions may allow adjustment of status in the U.S. so you don’t need to go through consular processing abroad which can be risky.

B. Employment-Based Immigration

DACA recipients may also be eligible for employment-based visas, especially those with specialized skills or education:

  • H-1B Visas: DACA recipients with a bachelor’s degree or higher and specific skills may be eligible for this visa which is commonly used by tech companies and other specialized industries.
  • Other Employment-Based Categories: Some may be eligible under employment-based immigrant visa categories for individuals with extraordinary ability, professional achievements or investment interests. An employer must sponsor these applications and visa numbers are capped annually.

DACA recipients should consult with an immigration attorney who specializes in employment visas to see if you qualify as this path requires a well-prepared application and often a long wait.

C. U Visa for Crime Victims

The U visa is an option for DACA recipients who have been victims of certain crimes and have cooperated with law enforcement:

  • Eligibility: To qualify, applicants must be victims of certain crimes (e.g. domestic violence, assault) that occurred in the U.S., cooperate with law enforcement and meet other requirements.
  • Deferred Action with Bona Fide Determination (BFD): Recently, USCIS has accelerated the U visa process through the BFD, granting work authorization and deferred action to eligible applicants while they wait for full adjudication. This can get work authorization for DACA recipients earlier than before.

This visa also offers a path to LPR status after 3 years, so it’s a long-term solution for those who qualify.

D. Travel on Advance Parole for Adjustment of Status

Advance parole can be important for DACA recipients who are pursuing family-based petitions especially if they entered the U.S. without inspection:

  • Adjustment Eligibility: DACA recipients who enter the U.S. on advance parole are considered “inspected and paroled” which is a key requirement for adjustment of status.
  • Immediate Relative Requirement: This path is most useful for immediate relatives of U.S. citizens. Other family members in preference categories may still have restrictions due to specific adjustment bars.

However, travel on advance parole is not a guarantee of re-entry and may be risky so consult a lawyer.

Other Immigration Options and Considerations

245(i) Adjustment Eligibility

Under the Immigration and Nationality Act (INA) § 245(i), some individuals can adjust status in the U.S. even if they entered without inspection or worked without authorization. Key points:

  • Grandfathered Petitions: If a family or employment petition was filed on or before April 30, 2001 and the applicant was named or qualified as a derivative beneficiary, they may be eligible for adjustment.
  • With Newer Petitions: If the original petition is no longer valid, 245(i) eligibility can be used with a newer petition and adjust status without leaving the country.

This is great for older DACA recipients or those whose parents had petitions filed before 2001.

Employment-Based Adjustment with Current Employer

Some DACA recipients may be eligible for an employment-based adjustment due to their professional qualifications and work history:

  • Professional Degrees and High Demand Skills: Many DACA recipients have bachelor’s or advanced degrees and can qualify for employment-based sponsorship through their current employer.
  • Corporate Support: Companies, especially in tech and other high-demand fields, are interested in sponsoring DACA employees to retain talent.

Given the complexity of employment-based visas, recipients should consult with specialized immigration lawyers to navigate these options.

Plan for Uncertainty

Since DACA is in legal limbo, recipients should explore all possible immigration options. Here’s what to do:

  • File DACA Renewals on Time: Submit renewal applications within USCIS’s timeframe to avoid gaps in protection.
  • Use Advance Parole Wisely: Advance parole is still available but travel should be planned carefully given the legal risks.
  • Get Screened Broadly: DACA recipients should get screened for family-based, employment-based and other forms of immigration relief.
  • Stay Informed: Legal and policy changes can affect DACA’s future. Recipients should stay up to date and consult with immigration lawyers as needed.

Traveling for DACA Recipients: How to Apply for Advance Parole (And Attain Eligibility to Adjust Status)

Advance Parole is a permit that allows DACA recipients to travel outside the U.S. and re-enter lawfully. But there are rules and procedures to follow. Below we explain how to apply, eligibility, required documents and tips for safe travel.

Before You Travel

  • Approval Required: DACA recipients must wait until their DACA is approved before traveling. Traveling outside the U.S. without approved Advance Parole will result in loss of DACA status.
  • Re-entry Not Guaranteed: Even with Advance Parole, re-entry is subject to inspection at the border and can be denied.
  • Get Legal Advice: Consult with an immigration lawyer before making travel plans to understand the risks.

What is Advance Parole?

Advance Parole is a travel document issued by USCIS that allows DACA recipients to leave and re-enter the U.S. legally. It’s usually for:

  • Humanitarian: Visiting sick or elderly relatives, attending funerals or medical treatment.
  • Educational: Study abroad programs or academic research.
  • Employment: Overseas assignments, conferences, training or work-related meetings.

Filing Fee: $630

Advance Parole Benefits and Limits

Benefits

  • Legal permission to travel and re-enter the U.S.
  • Opportunities for academic, employment or family travel.
  • Potential enabling of eligibility to adjust status

Limits

Who Can Apply for Advance Parole?

DACA recipients can apply for Advance Parole if:

  • They have approved DACA.
  • They have a valid reason for travel under humanitarian, educational or employment categories.

How to Apply for Advance Parole

Step 1: Check Eligibility and Purpose of Travel

Before applying for Advance Parole, consult with an immigration attorney to confirm your eligibility. Certain factors like removal orders or unlawful presence may bar your re-entry to the U.S.

Common Questions on Eligibility

  • How do I check my immigration history? Contact an attorney to review your file.
  • Can I travel with a removal order? Travel with caution and consult an attorney

Purpose of Travel

  • Humanitarian: Visits for medical treatment, funerals or family emergencies.
  • Educational: Academic programs or research abroad.
  • Employment: For work assignments, conferences or training abroad.

Basic Eligibility Questions: Answering “No” to any of the following means you are not eligible for Advance Parole now.

  • Is your DACA approved?
  • Renew at least 120 days before expiration.
  • Do you need to travel for education, employment or humanitarian purposes?
  • Select all that apply: Education, Employment, Humanitarian.
  • Do you have a passport?

Further Questions
If you answer “Yes” to any of the following, consult an immigration attorney before applying for Advance Parole.

  • Have you been in removal proceedings?
  • Do you have other pending immigration applications?
  • Will your DACA expire during your travel dates?
  • Do you have a criminal record or outstanding fines?

Step 2: Fill out Form I-131, “Application for Travel Document”

  • On Part 2 of the form, check Box 1.d under “Application Type” for Advance Parole.
  • Enter your travel dates and purpose.
  • Leave reentry permits and refugee travel documents sections blank.

Step 3: Gather Supporting Documents

Provide proof of why you need to travel. Examples:

  • Humanitarian: Medical records, death certificates or proof of family relationship.
  • Educational: Acceptance letters to study abroad programs, research approval or letters from academic advisors.
  • Employment: Employer letters, conference invitations or work-related travel documentation.

Step 4: Assemble the Application Package

Package contents should include:

  1. Cover Letter: Be brief and state the purpose of your trip and list the documents you are including.
  2. Form I-131: Fill out USCIS Form I-131 (Application for Travel Document). Right now it must be submitted as a paper application.
  3. Purpose Statement: State clearly why your travel is necessary (humanitarian, education or employment).
  4. Supporting Documents: See below for required documents based on purpose of travel.
  5. DACA Approval Notice: Include a copy of your most recent I-797.
  6. Employment Authorization Document: Include a copy of your EAD.
  7. Passport Photos: Two recent passport sized photos.
  8. Application Fee: A check or money order for $630 made out to “U.S. Department of Homeland Security.”

Supporting Documents

  • Education: Official enrollment letters, program syllabi, acceptance letters or letters from academic advisors explaining how the travel will benefit your studies.
  • Employment: Employer letters explaining the need for travel, conference registration or invitations for work related events.
  • Humanitarian: Medical records for yourself or ailing relatives, birth or death certificates to prove relationships and statements from family members.

Tip: Make two copies of your application. Keep one with you during travel and leave one with a trusted contact in the U.S.Completed I-131 application

Step 5: Submit

  • Mailing Address:
  • USCIS
  • P.O. Box 5757
  • Chicago, IL 60680-5757
  • Keep a Copy: Always keep a copy of your application and supporting documents.

Step 6: USCIS Resources

Check the USCIS I-131 instructions for more information.

Step 7: Travel Preparation

Documents to Carry

  • Original Advance Parole approval (I-512L)
  • DACA Approval Notice
  • Supporting documents for purpose of travel

Step 8: Re-entering the U.S. with Advance Parole

When you get back, you will go through inspection at the port of entry and CBP may ask you questions about your trip. Stay calm and have all your documents ready.

Advance Parole Travel Tips

  • Consult an Immigration Attorney: Before you leave, consult with an attorney to confirm your travel plans are safe and to discuss any risks.
  • Monitor Travel Dates: Don’t exceed the time frame on your Advance Parole.
  • Leave Early: Plan to return well before your Advance Parole expires to account for delays.
  • Bring Documents: Bring your Advance Parole and DACA approval notices with you.
  • Leave with Someone You Trust: Make sure a family member or representative in the U.S. has copies of your approval documents in case of an emergency.
  • Emergency Contacts: Carry contact information for family members and legal representatives.

Emergency Advance Parole Requests

For emergency situations, you may be able to request expedited processing of Advance Parole. But the reason must be serious, like a medical emergency or family emergency. Always check with USCIS for current instructions on emergency requests.

Traveling on Advance Parole Risks

Traveling abroad with Advance Parole has risks, including being denied re-entry. Travel history may also impact future immigration options so consult with an immigration attorney to consider these risks.

More Resources

Advance Parole FAQs for DACA Recipients

General Advance Parole Question

Eligibility and Application Process

Traveling with Advance Parole

Risks and Consequences

Uncommon Questions or Situations

After Approved Advance Parole

Advance Parole allows DACA recipients to travel but you must follow all the rules and understand the risks. With proper planning and documentation, you can make the immigration process much easier and minimize travel risks. Always consult an immigration attorney.

Adjustment of Status Through Parole in Place for Family Members of U.S. Military Personnel

The “Parole in Place” (PIP) program allows family members of U.S. military members and veterans to potentially adjust their status and become lawful permanent residents (green card holders) even if they entered the U.S. illegally. PIP is not a separate immigration status but a tool to help non-citizen family members become permanent residents without having to leave the U.S.

What is Parole in Place (PIP)?

PIP is a temporary permission to be in the U.S. (usually in one-year increments) and allows eligible individuals to apply for a work permit. This is a benefit for non-citizen family members of U.S. military members to get lawful status and potentially apply for a green card even if they entered the U.S. illegally.

With PIP, eligible applicants can adjust status without leaving the country and re-entry issues.

Who is eligible for Parole in Place?

You may be eligible if:

  • You entered the U.S. illegally
  • You are the spouse, widow/widower, or unmarried minor child of:
  • An active-duty member of the U.S. armed forces
  • A Selected Reserve member of the Ready Reserve
  • A veteran who served honorably in the U.S. armed forces or the Selected Reserve

Note: PIP is discretionary, approval is not guaranteed. USCIS will grant it only if they think it serves a public benefit, like military family unity. Individuals with criminal convictions or other serious issues may not be eligible.

How to Apply for Parole in Place

To apply for PIP, gather and submit the following documents to U.S. Citizenship and Immigration Services (USCIS):

  1. Form I-131, Application for Travel Document
    • Check the box in Part 1, Question 8A to select PIP as the purpose.
  2. Proof of Relationship to Military Member
    • Submit marriage or birth certificates, with translations if not in English.
  3. Evidence of Military Service
    • Copies of military ID (DD Form 1173), enlistment papers or other official documents proving military service.
  4. Two passport-style photos of the applicant.

Additional Supporting Evidence

  • Letters from community members or employers, volunteer work and educational achievements may help your case. If you have a criminal record, include proof of rehabilitation (consult an attorney for guidance on criminal issues, as these can affect eligibility).

Note: There is no fee for PIP. Submit your application to the USCIS field office serving your area, some offices may have additional requirements (e.g. a written statement explaining how you entered the U.S. or proof of an I-130 petition). After submission, USCIS may schedule an interview, which is usually short but can be longer if more information is needed.

If Parole in Place is Granted: What’s Next

You’ll receive an I-94 card as proof of PIP status. This card is good for one year and should be kept safe as it allows you to:

  • Apply for a work permit (EAD) through USCIS.
  • Adjust status and apply for a green card if unlawful entry was the only issue.

Family Members Eligible for a U.S. Green Card

Under U.S. immigration law, only certain family members of U.S. citizens are eligible for a green card as “immediate relatives”:

  • Spouse or widow/widower
  • Unmarried child under 21
  • Parent

Immediate relatives have priority for green cards without long waiting lines and PIP allows them to adjust status in the U.S.

How to File for Adjustment of Status

Once PIP is approved you can:

  • Form I-130: The U.S. citizen family member should file this if it hasn’t already been filed.
  • Adjustment of Status Application (Form I-485): Attach your PIP approval notice to your application.

Consult an attorney for guidance on filing a family-based green card application as the process can be tricky.

Important Notes

PIP applications have a high denial rate and success depends on the strength of your case. It’s recommended to get legal help especially if you have other issues (e.g. criminal history) that can affect your adjustment to permanent residence. An immigration attorney can also help you with local requirements and USCIS office.

Dreamers by the Numbers

1. Population: Who are the Dreamers?

  • Eligibility Criteria: The 2023 Dream Act (S. 365) defines Dreamers as undocumented immigrants who entered the U.S. before age 18 and have been here for at least 4 years prior to the bill’s enactment. They must be inadmissible or deportable under immigration law or have TPS and have completed or be in high school.
  • Number of Beneficiaries: 2.3 million would get a pathway to citizenship, about 1/5 of the undocumented population in the U.S.
  • DACA-Eligible: Over 1 million of these Dreamers are eligible for Deferred Action for Childhood Arrivals (DACA) which protects immigrants who entered the U.S. in 2007 or earlier, were under 16 and met certain education or military service requirements.
  • Current DACA Status: About 590,000 Dreamers had active DACA as of late 2022 and 400,000 more could qualify if new applications were allowed. Due to recent court decisions, about 95,000 are waiting for DACA approval.
  • School-Aged Dreamers: About 600,000 young people are not eligible for DACA as they arrived after the 2007 cut-off.

2. Age: A Young Population

  • Youth Demographics: Over 1.5 million Dreamers eligible under the 2023 Dream Act are under 30, median age 24.
  • Minors: About 600,000 are under 18, 1.7 million are adults. Many minors can’t apply for DACA as the entry requirements are outdated, since DACA was created in 2012 and has not been updated.

3. Origins and U.S. Arrival: Diverse Backgrounds, Deep Roots

  • Years in the U.S.: 1.7 million Dreamers or 76% of those covered by the Act entered the U.S. in 2012 or earlier, have been here over 10 years.
  • Age at Entry: 76% arrived before age 13, spent their formative years in the U.S.
  • Country of Birth: While almost half (1 million) of eligible Dreamers were born in Mexico, the rest come from:
    • Asia: 370,000 from countries like India, China and the Philippines.
    • Central America: 320,000 from countries like El Salvador, Guatemala and Honduras.
    • South America: 160,000 from countries like Colombia and Venezuela.
    • Caribbean: 120,000 from Haiti, Dominican Republic and Jamaica.
    • Africa and Middle East: 110,000 from various African and Middle Eastern countries.

4. Education: Many Dreamers are in School

  • Educational Attainment: To be eligible for the Dream Act, Dreamers must have completed high school or equivalent, be in school or have served honorably in the U.S. military.
  • High School Graduates: 1.6 million Dreamers have graduated high school or GED, 250,000 have college degrees or diplomas.
  • Students: 900,000 Dreamers are in school, 600,000 K–12 and 300,000 college. Of these 300,000 are eligible for DACA, others arrived too recently to qualify.

5. Workforce: Filling Gaps in High-Demand Sectors

  • Employed in Critical Industries: 1 million Dreamers are employed in industries with severe labor shortages, job opening rates above 5%.
  • Sector Breakdown:
    • Construction: 190,000
    • Retail Trade: 190,000
    • Food Services and Accommodation: 170,000
    • Manufacturing: 140,000
    • Business and Professional Services: 140,000
    • Healthcare and Social Assistance: 110,000
    • Transportation and Warehousing: 80,000
    • Total Workforce Participation: 1.3 million Dreamers or 60% of those covered by the Act are in the workforce.

6. Economic Impact: Growing the U.S. Economy

  • Current Impact: Despite limited protections, Dreamers contribute about $45 billion to the U.S. economy through wages and $13 billion in federal, state and local taxes.
  • Future Projections: FWD.us estimates DACA recipients alone could contribute $390 billion in wages and $117 billion in taxes over the next 10 years if they were given permanent residency and work authorization.

7. Family Ties: Supporting U.S. Citizen Families

  • Parental Status: 475,000 Dreamers are parents to at least one U.S. citizen child, 750,000 U.S. citizen minors with a Dreamer parent.
  • Marital Ties: 200,000 Dreamers or 10% of those covered by the Act are married to U.S. citizens. Many more Dreamers have close family ties to U.S. citizens but current laws prevent them from getting permanent residency despite these ties.

Why the Dream Act Matters

The Dream Act of 2023 will provide a pathway to citizenship for Dreamers, ending years of uncertainty and allowing them to fully contribute to American society. With their youth, education, work skills and deep family ties, Dreamers are uniquely positioned to strengthen the U.S. workforce and economy.

Passing this legislation would not only recognize their contributions but also secure a better future for American families and communities. Only by giving them a path to citizenship can Congress ensure Dreamers can continue to build their lives in the country they call home.

What if DACA Ends? Jobs, Families, Communities

Since 2012, the Deferred Action for Childhood Arrivals (DACA) program has given protection from deportation and work authorization to young undocumented immigrants, allowing them to build lives, families and careers in the U.S. Despite its success, DACA is under legal threat. If it ends or renewals stop, the impact will be catastrophic for recipients, their families and the U.S. workforce and economy.

If DACA Ends

1. Job Losses: Thousands Each Week

  • Daily Job Losses: If renewals stop, 1,000 DACA recipients would lose their jobs every business day for the next 2 years. That’s 18,000 jobs lost each month and workforce shortages across multiple industries.
  • Impact on Essential Workers: The following sectors would be hit hardest:
  • Healthcare: 1,500 healthcare workers (doctors and nurses) would lose their jobs each month.
  • Education: 700 educational professionals (teachers and aides) would be forced out of work.
  • Personal Care: 600 caregivers in child and senior care would lose their jobs monthly, affecting vulnerable community members.

Estimated Monthly Job Losses by Sector

  • Office Administration: 2,700
  • Sales: 1,900
  • Transportation: 1,800
  • Construction: 1,800
  • Food Preparation/Service: 1,700
  • Healthcare: 1,500
  • Production: 1,200
  • Management: 1,000
  • Building Maintenance: 800
  • Education: 700
  • Personal Care: 600

Total Jobs Lost Monthly: 18,600

2. Economic Impact: State by State

  • State-Level Impacts: The states with the largest DACA recipient populations (California and Texas) would be hit the hardest:
    • California: 5,200 monthly job losses, 500 healthcare workers, 200 educators
    • Texas: 2,600 monthly job losses, 200 healthcare, 100 education
    • Other States: Illinois, New York, Arizona, Florida would also be hit hard, with economic ripples across their local communities.

3. Shrinking DACA Population: A Generation Without Opportunity

  • No New Applications: DACA is currently closed to new applicants due to legal restrictions and about 600,000 eligible Dreamers are without protection.
  • Backlog: About 100,000 applications are pending at USCIS but cannot be processed due to court orders. 120,000 young undocumented high school graduates in 2023 are ineligible for DACA and have limited options.
  • A Generation Without Opportunity: As DACA recipients age, younger Dreamers are growing up without DACA.

The Impact on Families: Deportation Risks for Loved Ones

1. Family Separation: 1,000 U.S. Citizens Daily

  • Family Members at Risk: Ending DACA would not only affect recipients but also put their U.S. citizen family members at risk of being separated. Over 2 years, more than 1,000 U.S. citizens each day would see a loved one (parent, spouse or sibling) face deportation.
  • Children: 12,600 U.S. citizen children each month could see a parent become deportable, leading to uncertainty, stress and possible family separation.
  • Spouses: 4,000 U.S. citizen spouses could lose their partner’s protection, putting families under immense emotional stress.

Monthly Numbers of U.S. Citizen Family Members Affected

  • California: 2,700 children and 1,300 spouses
  • Texas: 2,400 children and 800 spouses
  • Other States: New York, Arizona, Washington, Colorado, Nevada, North Carolina, Florida would also be hit hard.

2. The Human and Financial Cost to Family

  • Mental Health: Deportation threats weigh heavily on families, affecting children’s school performance and adults’ work productivity.
  • Financial Stress: Losing a family member’s income due to deportation or job loss could destabilize family finances, leading to housing insecurity, reduced access to healthcare and other financial hardships.

We Need Action Now

DACA has been a lifeline for hundreds of thousands of young immigrants who have made the U.S. their home, contributing to the economy and their communities. With the program under attack like never before, only Congress can provide a permanent solution to protect Dreamers and prevent the disaster of ending DACA.

Why a Permanent Solution Matters

  • Workforce and Economy: DACA recipients are part of the U.S. workforce. Losing them would hurt businesses, hospitals, schools and other critical infrastructure, exacerbate labor shortages and costs.
  • Families and Communities: Dreamers are part of American society. Many have U.S. citizen children and spouses, own homes and contribute to their communities. Congress must act so they can stay, work and thrive in the U.S.

DACA 12 Years Later: Lives

The Deferred Action for Childhood Arrivals (DACA) program has allowed undocumented youth to build lives in the U.S., many now working, in college and raising families. As DACA turns 12, the program is under legal attack and recipients and their families are in crisis. Here’s the situation.

DACA’s History and Purpose

  • 2012: The Obama administration created DACA to give temporary deportation relief to young immigrants who came to the U.S. as children. It allowed recipients, known as Dreamers, to work, study and live without fear of being deported.
  • Initial Recipients: When DACA started, most recipients were high school or college students. Their average age was 21, half were in school and 60% were working. The average annual income was $4,000.

12 Years of Growth: The Evolution of DACA Recipients

2024 vs. 2012

  • Labor Force: 88% of DACA recipients are now in the workforce vs. 60%.
  • Education: 99% have graduated high school, 49% have some college education.
  • Income: Median annual income has jumped from $4,000 to $37,000.
  • Family Life: 42% are married and 50% have children, they have put down deep roots in the U.S.
  • To the Economy: Over the years, DACA recipients have added over $100 billion to the U.S. economy through taxes and spending.
  • Stable Jobs: With DACA’s work permit, recipients have been able to have stable careers and benefit industries across the country, healthcare, education and technology.

Personal Story: Reyna Montoya

Reyna Montoya, one of the first DACA recipients, went from student to teacher and community leader. DACA allowed her to graduate from college and make a difference in her community. Like many other Dreamers, she now advocates for a safer future and urges Congress to act.

A New Profile: DACA Recipients Today

  • Today’s DACA population looks different from the program’s early years:
    • Age and Time in the U.S.: The average DACA recipient is now 31 and has been in the U.S. for 25 years.
    • Widespread Presence: DACA recipients live in communities all over the U.S., with the largest populations in California (28%) and Texas (17%).
    • Family Life: Many DACA recipients live in mixed status households, often with U.S. born spouses or children, so family stability is key.

DACA Population Characteristics

  • Labor Force: 83% are in the workforce.
  • Education: 96% have graduated high school, 49% have some college education.
  • Family Structure: 31% are married, 38% have children.
  • U.S. Citizen Relatives: 1 million U.S. citizens live in households with DACA recipients.

Uncertainty: Legal Challenges and Limited Access

was supposed to be temporary but congressional inaction has left recipients in limbo:

  • Legal Threats: In recent years, court decisions have blocked new applications, leaving an estimated 600,000 eligible youth without access to DACA.
  • Renewals Only: Current recipients can still renew but the program is still at risk of being ended permanently. If the courts strike down DACA, 1,000 jobs and family separations would occur every business day for the next two years.
  • Frozen Eligibility: Since the eligibility date for DACA hasn’t been updated since 2012, many recent high school graduates can’t apply, despite having lived in the U.S. most of their lives.

Congress Must Act Now

“DACA policy has given young undocumented immigrants a chance to build lives in the U.S. but without a permanent solution their future is uncertain. Congress can:

  • Create a Pathway to Citizenship: By passing a bill, Congress can give Dreamers a permanent home in the U.S. which is where they have lived most of their lives.
  • Protect Families: Many DACA recipients have U.S. citizen family members so a pathway to citizenship would prevent family separations and family stability.
  • Include the Entire Undocumented Population: Expanding protections to all undocumented family members would keep millions of families together so they can fully participate in the economy and their communities.

Now is the Time

President Obama’s original DACA statement said it was temporary and that Congress needed to act. Twelve years later, the call to act is still urgent. With legal threats looming, Congress must pass a pathway to citizenship to give DACA recipients, their families and their communities stability and certainty.

The Dream Act: Stalled

Since its introduction over 20 years ago the Development, Relief, and Education for Alien Minors (DREAM) Act has been at the center of U.S. immigration reform. Designed to provide a pathway to legal status for undocumented immigrants who came to the U.S. as minors, often called Dreamers, the Dream Act continues to be a topic of political debate and hope for millions who want to fully participate in American society. This article will look at the history, main provisions, potential effects and current status of the Dream Act.

History

The idea of the Dream Act was born out of the need to address the special challenges faced by undocumented immigrants brought to the U.S. as children. These young people, many of whom were raised in American communities and educated in American schools, find themselves in a legal limbo.

They are American in culture yet undocumented in status, with limited access to work, education and financial aid because of their immigration status.

In 2001 Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT) introduced the first version of the Dream Act to provide conditional residency to young undocumented immigrants and a pathway to permanent residency if they met certain educational or military service requirements.

Since then various versions of the Dream Act have been introduced in Congress but despite broad public support the Act has not been passed into law. However it paved the way for other initiatives including Deferred Action for Childhood Arrivals (DACA) which temporarily protects eligible Dreamers from deportation.

Main Provisions of the Dream Act

While different versions of the Dream Act have been introduced, most have had the same core criteria and goals. Main provisions of the Dream Act include:

  1. Eligibility Requirements: The Act applies to undocumented immigrants who were brought to the U.S. as minors (often before age 16) and have been in the country for several years before the law is enacted. Applicants must generally show good moral character meaning they have not been convicted of certain crimes and are not a threat to public safety.
  2. Education and Military Service: To get permanent legal residency eligible applicants often have to complete a period of higher education (such as an associate’s or bachelor’s degree) or serve in the U.S. military. This requirement is to show a commitment to American society.
  3. Conditional Residency: Once initial eligibility requirements are met Dreamers can be granted conditional residency and can live, work and study in the U.S. without fear of deportation. Conditional residency status is usually for a certain period of time (e.g. six years) during which the individual has to meet educational or military requirements.
  4. Pathway to Permanent Residency: Once the conditions are met Dreamers can apply for permanent legal residency (often called a green card) and eventually citizenship. This would allow them to fully participate in American society, access more job opportunities and contribute more to the economy.

Economic and Social Effects

The Dream Act has big implications for Dreamers and the U.S. as a whole. Advocates say passing the Dream Act would bring significant economic benefits, support the American workforce and uphold American values of fairness and opportunity. Here are some of the main effects:

  1. Economic Growth: Research shows Dreamers contribute to the U.S. economy. Studies say passing the Dream Act would add billions to the gross domestic product (GDP) over the next few decades. By giving Dreamers stable legal status the Act would allow them to get higher paying jobs, invest in education and contribute more in taxes and boost economic growth.
  2. Meeting Workforce Needs: As the U.S. is facing a shortage of skilled labor Dreamers could fill gaps in key industries like healthcare, education, technology and manufacturing. Many Dreamers have pursued professional and technical education and are ready to meet current and future workforce needs.
  3. Family and Community Stability: Dreamers are already part of American communities as family members, friends, colleagues and students. By giving them status the Dream Act would reduce the risk of family breakups due to deportation and strengthen community bonds and the social fabric of the country.
  4. American Values: The Dream Act is in line with American values of opportunity, hard work and equality. Giving Dreamers a pathway to status would recognize their contributions, resilience and commitment to the country they call home.

The Dream Act and Related Policies Today

  1. Although the Dream Act has had bipartisan support for years it has faced political hurdles and has not passed. Each Congress brings new versions of the Act, some focusing on education and others on family members of Dreamers. Despite wide public support the political gridlock has stalled progress.

In 2012 the Obama administration introduced the Deferred Action for Childhood Arrivals (DACA) program. DACA provides temporary relief from deportation and work authorization for eligible Dreamers and allows them to renew every two years. While it’s temporary relief it’s not a permanent solution. Legal challenges and changes in administration policies have put the program in jeopardy and left DACA recipients in limbo.

In 2021 the American Dream and Promise Act passed the House of Representatives which included the Dream Act. But it did not move in the Senate. President Biden has said he supports comprehensive immigration reform including the Dream Act but the Act’s fate is up to bipartisan cooperation in Congress.

For and Against the Dream Act

For

  1. Moral Imperative: Supporters say it’s unfair to punish young people who had no choice in coming to the U.S. and have spent most of their lives here.
  2. Economic Growth: Many studies say legalizing Dreamers would increase their economic contributions and GDP and tax revenue.
  3. Human Rights and Family Unity: The Act would prevent deportation and family breakups for hundreds of thousands of Dreamers and their families and uphold human rights.

Against

  1. Encouraging More Illegals: Critics say legalizing Dreamers would encourage more undocumented immigration, they think it would create a pathway for future arrivals.
  2. Cost: Some say the Act would increase public spending on education, healthcare and social services.
  3. Rule of Law: Some say providing a pathway to citizenship undermines the enforcement of current immigration laws.

The Dream Act is a symbol and a solution to a problem affecting millions of young people in the U.S. While the road to passage is uncertain the debate around the Dream Act shows we need a compassionate and forward thinking approach to immigration reform.

For Dreamers passing the Act would mean more than status it would mean the opportunity to fully be themselves, enrich American society and build a secure and stable future. As the country figures out its immigration policy the Dream Act is a reminder of the values of resilience, opportunity and the American dream.

DACA FAQ

General DACA Program Questions

DACA Litigation and Status

DACA and Health Care

DACA and Advance Parole (Travel Authorization)

DACA and H-1B Visas

DACA and Adjustment of Status (Green Card Pathways)

Employment and Work Authorization

Educational Opportunities

Family Sponsorships and DACA

DACA Renewal Process

DACA in the Courts

DACA’s Future is Uncertain

DACA’s future is more uncertain than ever. As the Fifth Circuit Court of Appeals hears the case, a final decision from the Supreme Court could end the program for good, with huge implications for over 500,000 recipients, their families and communities. The Biden administration’s recent actions give temporary relief but no legislative solution leaves DACA recipients in limbo.

For over a decade, DACA has kept families together, supported the U.S. workforce and allowed young immigrants to build their lives in the only country they know as home. As the courts decide the program’s fate, the need for Congress to pass a permanent fix grows. Protecting Dreamers and a pathway to citizenship is crucial for the stability and prosperity of American communities and the economy.

Judge Hanen’s ruling against DACA makes clear the ongoing legal and political fight around the program and the need for legislative reform. As the Biden administration appeals, DACA’s future is uncertain and we’re looking to Congress and the Supreme Court for a solution. In the meantime, Dreamers and their allies will keep pushing for a safe and permanent path to citizenship.

We’ll see if the Court of Appeals or Supreme Court decides DACA’s fate but legislative reform is still needed. S will accept the application and payment but will not process or approve any first-time applications under current rules.

DACA’s future is more uncertain than ever. As the Fifth Circuit Court of Appeals hears the case, a final decision from the Supreme Court could end the program for good, with huge implications for over 500,000 recipients, their families and communities. The Biden administration’s recent actions give temporary relief but no legislative solution leaves DACA recipients in limbo.

For over a decade, DACA has kept families together, supported the U.S. workforce and allowed young immigrants to build their lives in the only country they know as home. As the courts decide the program’s fate, the need for Congress to pass a permanent fix grows. Protecting Dreamers and a pathway to citizenship is crucial for the stability and prosperity of American communities and the economy.

Judge Hanen’s ruling against DACA makes clear the ongoing legal and political fight around the program and the need for legislative reform. As the Biden administration appeals, DACA’s future is uncertain and we’re looking to Congress and the Supreme Court for a solution. In the meantime, Dreamers and their allies will keep pushing for a safe and permanent path to citizenship.

We’ll see if the Court of Appeals or Supreme Court decides DACA’s fate but legislative reform is still needed.

Expert Legal Help At Herman Legal Group, LLC

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TPS & Trump: Will He End Protections for 1.6 Million People?

Growth Under Biden and Danger Under Trump

The Temporary Protected Status (TPS) program which temporarily protects migrants from deportation to countries in crisis and provides work authorization has grown under the Biden, whom some refer to as the “TPS President.” TPS is one of the few executive tools to provide work authorization without Congressional approval.

How Many Are Protected or Eligible for TPS?

  • As of March 2024 there are 863,880 TPS holders in the US.
  • 486,418 applications for initial status or renewals are pending.
  • Recent redesignations could add 320,300 more to the pool of people eligible for TPS.

TPS is back in the news.

Donald Trump will be sworn in as President on January 20, 2025. The incoming Trump administration has recently indicated uncertainty about whether it will cut or end the program in his second term.

During the first Trump administration the program was under attack like never before with terminations that put over 300,000 people at risk of deportation.

Past Legal Battles

Lawsuits in 2017 and 2018 blocked Trump’s initial attempts to terminate TPS for countries like Haiti and Sudan. Courts ruled that the terminations were discriminatory and lacked basis.

Uncertain Future

Legal challenges may delay or prevent terminations but they depend on what Trump does and the political climate. Even without premature terminations of existing TPS designations, Trump can simply not extend the existing country-specific designations, most of which will expire in 2025.

The future of TPS and the lives of over a million people are at stake.  If Trump’s plan goes through this could mean the deportation of hundreds of thousands of people who have built lives in the US. Many TPS holders have been here for decades, contributing to the economy and community.

Over 2/3 of TPS holders have U.S. citizen children. Terminating TPS without alternatives would not only disrupt lives but also industries that rely on this workforce. This guide explains the key issues, the growth, what’s next and what TPS holders can do to protect themselves.

What is TPS and Why is it Important?

History:

  • TPS was created in 1990 by Congress and signed into law by President George H.W. Bush to address humanitarian crises, starting with Salvadorans fleeing civil war.
  • Since then it has been used to protect migrants from:
    • Genocide in Rwanda.
    • Wars in Bosnia and Kuwait.
    • Natural disasters like the volcanic eruptions in Montserrat in the 1990s.

Past Terminations:

  • TPS designations have ended when countries have stabilized like Bosnia and Kosovo. But many current designations are still critical because of ongoing crises.

When and Why is TPS Designated?

TPS allows immigrants from designated countries (17) to live and work in the US temporarily without fear of deportation when conditions in their home countries are unsafe.

A country can be designated for TPS for the following reasons:

  • Armed Conflict:
    • Ongoing conflicts like civil wars that pose severe risks to individuals.
  • Environmental Disaster:
    • Natural disasters like hurricanes, earthquakes or epidemics that cause significant disruption.
  • Extraordinary and Temporary Conditions:
    • Situations like political instability, extreme violence or humanitarian crises that prevent safe return.

Important Notes:

  • TPS does NOT provide a path to permanent residency or citizenship.
  • TPS holders CAN still apply for other immigration benefits or protections if they qualify.

Who Decides on TPS Designations?

The homeland security secretary has sole authority to designate, extend or terminate TPS for a country.

Decisions are made in consultation with agencies like the State Department and National Security Council.

Duration of TPS Designations:

  • Designations are for 6, 12 or 18 months and can be extended if conditions persist.
  • If no decision is published 60 days before expiration the designation is automatically extended for 6 months.

Who is Eligible for TPS?

Eligibility Requirements

To qualify for TPS you must:

  1. Country Designation: Be a national of a TPS-designated country or a stateless person who last resided in such a country.
  2. Continuous Presence: Have been physically present in the US since the designation date for your country.
  3. Continuous Residence: Have lived in the US since the date specified for your country.
  4. Timely Filing: File during the initial registration period or meet the late filing criteria.

Ineligibilities: You may not be eligible if:

  • You have been convicted of any felony crime or two or more misdemeanors in the US.
  • You are inadmissible based on specific immigration grounds such as criminal or security related issues.
  • You do not meet the continuous physical presence or residence requirements.
  • You are subject to the asylum bars such as persecution or terrorist activities.

Key Features:

  • Date of Entry:  Only those who were in the US by a specific date are eligible.
  • Renewable Status: Designations are for 18 months and are re-assessed for extensions.
  • Manner of Entry:  How you entered the country – legally or otherwise – is not a disqualifier.
  • Criminal/Immigration History:  Certain criminal convictions or immigration violations will make you ineligible unless you have a waiver.
  • Not a Path to Citizenship: TPS does not provide a path to permanent residency or citizenship but temporary relief.
  • Current Beneficiaries: Nearly 900,000 people from 17 countries including Haiti, Venezuela, Afghanistan, Sudan and Lebanon are protected by TPS.

Benefits of TPS

TPS offers several benefits to beneficiaries:

  • Protection from Deportation: TPS holders are not removable while their status is valid.
  • Work Authorization: TPS recipients can work in the US with an EAD.
  • Travel Authorization: Recipients can travel internationally with advance parole.
  • Integration: TPS beneficiaries can live and contribute to their communities without fear of deportation.

Where Are They?  Distribution of TPS Holders Across the US.

TPS holders are in all states but the largest populations are in:

  • Florida: 295,720 TPS recipients.
  • Texas: 93,680.
  • New York: 67,840.
  • California: 67,800.
  • New Jersey: 31,480.

Their large and longstanding number shows their integration in US communities.

Florida Will Be Hit the Hardest

As President-elect Donald Trump prepares to take office again his threats to end TPS have reignited fears especially in his home state of Florida, the state that will lose the most.

TPS is crucial for many living and working in the Sunshine State. Trump’s promise to terminate these protections will not only harm the individuals directly affected but also disrupt Florida’s communities and economy.

How Does TPS Work?

Step 1: Country Designation

The Secretary of Homeland Security determines which countries are eligible for TPS based on:

  • Armed conflicts that affect civilians.
  • Natural disasters that disrupt living conditions.
  • Temporary but extraordinary situations like epidemics or political turmoil.

The decision to designate or redesignate a country is made in consultation with other agencies like the Department of State and National Security Council.

Step 2: Registration

Foreign nationals from designated countries must:

  • File the I-821 Application and I-765 Work Authorization during the registration period.
  • Be a national of a TPS designated country or a stateless person who last habitually resided in such a country
  • Be physically present in the US since the date of designation.
  • Pay application and biometric fees (or request a fee waiver).

Step 3: Benefits

If approved TPS recipients are:

  • Not removable.
  • Eligible for an EAD.
  • Can apply for advance parole through Form I-512T

Expiration and Renewal of TPS

TPS designations are reviewed and extended based on country conditions:

  • The Secretary of Homeland Security must decide on the extension 60 days before expiration.

Extensions only apply to individuals who already have TPS; new applicants need a redesignation

What Does TPS Offer?

TPS offers benefits to give individuals a sense of security and opportunity while their countries are in dire conditions.

Core Benefits:

  1. Protection from Deportation:
    TPS holders are not removable while their status is valid.
  2. Work Authorization:
    TPS holders can get an EAD to work in the US.
  3. Travel Authorization:
    • TPS specific travel documents allow holders to travel internationally and reenter the US.
    • Form I-512T replaced advance parole for TPS holders in 2022.

Challenges for TPS Holders

Perpetual Uncertainty

TPS does not offer a pathway to permanent residency or citizenship unless pursued through other legal means. Most are stuck in limbo.

  • TPS designations are 18 months, after which DHS must re-evaluate the country conditions.
  • Recipients must reapply each time, often with delays in work permit processing
  • TPS holders are not eligible for public benefits based on their TPS status.

Registration and Re-Registration Hurdles

TPS applicants must: Apply during limited registration periods. Pay significant fees for initial registration, work permits and re-registration. Reapply every time the designation is extended, even after 20+ years of residency.

Barriers to Family Reunification

  • TPS holders cannot use their status to sponsor family members. They cannot confer TPS protections to their relatives abroad, even in life or death situations

Legislative Gridlock

Advocates urge for legislative solutions to provide long term stability for TPS holders. Congressional action is needed to create a direct path to green cards for TPS holders but progress has been slow.

Vulnerability to Policy Changes

TPS is at the mercy of the administration in power, making the status precarious.

Myths About TPS

“It’s Amnesty.”

  • Critics call TPS amnesty but it’s not. It does not offer permanent residency or citizenship.
  • It’s a temporary solution that has ended for several countries when conditions improved.

“Migrants Exploit TPS.”

  • TPS was created through legislation, not a loophole.
  • Protections can’t be arbitrarily revoked. The law requires a thorough review of country conditions to determine eligibility.

History of TPS

Extended Voluntary Departure (EVD)

  • Historical Role: Extended Voluntary Departure (EVD) is the Predecessor to TPS, used before the Immigration Act of 1990.
  • Transition: Replaced by TPS to formalize protections.

Expired TPS Designations

  • Angola (Expired March 29, 2003): Post civil war stabilization.
  • Bosnia-Herzegovina (Expired February 10, 2001): Conflict resolution efforts.
  • Burundi (Expired May 2, 2009): Post civil unrest.
  • Guinea (Expired May 21, 2017): Post Ebola outbreak.
  • Liberia (Expired May 21, 2017): Post Ebola crisis.
  • Montserrat (Expired August 27, 2004): After volcanic disaster.

Why DOES TPS Matter?

Humanitarian Need

  • TPS is a lifeline for individuals fleeing life or death situations. Deporting them back to unsafe conditions could be catastrophic.
  • TPS shows the US commitment to providing shelter to those affected by global crises.
  • Countries like Turkey, Colombia and the European Union offer similar protections, global solidarity during humanitarian emergencies.

US Leadership in Crisis Response

  • By maintaining and expanding TPS the US will be a global leader in addressing displacement caused by wars, climate change and economic instability.
  • As shown below, TPS recipients are part of many industries and contribute billions in taxes annually. TPS recipients contribute to industries like healthcare, education, construction and manufacturing, to address labor shortages.
  • Work authorization through TPS benefits both immigrants and US employers
  • Labor Force Participation: Nearly 90% of TPS holders are employed, much higher than the national average
  • Ending TPS will hurt local economies, exacerbate labor shortages and disrupt industries that rely on migrant workers. In Springfield, Ohio auto manufacturers employ TPS recipients from countries like Venezuela and Haiti.

Criticism and Advocacy

Critics of TPS:

  • Some say TPS has become de facto permanent status for recipients undermining its original purpose as a temporary solution.
  • Critics like Ira Mehlman of FAIR say the system only works if people are sent back once crises subside.

Advocates for TPS Holders:

  • Immigration advocates point out the ongoing crises in countries like Haiti and say deporting people to unsafe conditions is inhumane.
  • Efforts to create a pathway to permanent residency for long time TPS holders are gaining traction but are being blocked in Congress.

Which Countries Are Under TPS?

As of this writing, the following 17 countries are designated for TPS:

  • Afghanistan: Extended until May 20, 2025 due to ongoing instability and security concerns.
  • Burma (Myanmar): Valid through November 25, 2025, addressing the severe political and humanitarian crises following military rule.
  • Cameroon: Extended until June 7, 2025 due to violent conflicts and humanitarian crises.
  • El Salvador: Extended until March 9, 2025, recognizing prolonged safety challenges stemming from crime and economic instability.
  • Ethiopia: Valid through December 12, 2025, owing to conflict and famine.
  • Haiti: Extended through February 3, 2026, with worsening political unrest and gang violence.
  • Honduras: Extended until July 5, 2025, addressing the impacts of poverty, corruption, and climate disasters.
  • Lebanon:  Extended until May 27, 2026, due to longstanding humanitarian needs exacerbated by an escalation of armed conflict.
  • Nepal: Extended until June 24, 2025, following the 2015 earthquake’s lasting effects.
  • Nicaragua: Extended until July 5, 2025, due to political instability and natural disasters.
  • Somalia: Extended until March 17, 2026, given prolonged armed conflict and insecurity.
  • South Sudan: Extended until May 3, 2025, in light of ongoing civil conflict.
  • Sudan: Extended until April 19, 2025, reflecting continued violence and instability.
  • Syria: Extended until September 30, 2025, owing to the civil war and humanitarian crisis.
  • Ukraine: Extended until April 19, 2025, following Russia’s invasion and ongoing war.
  • Venezuela: Extended until April 2, 2025 (September 10, 2025 for those who applied under Re-Designation), citing political turmoil and economic collapse.
  • Yemen: Extended until March 3, 2026, due to the devastating civil war and famine.

Recent Growth of TPS:

  • As of fall 2024 over 860,000 are under TPS—double the number from 4 years ago.
  • Nearly 50% more are eligible but haven’t applied
  • Hundreds of thousands have applied and are waiting for approval.

Specific TPS Groups at Risk Under Trump

Haiti, Venezuela and El Salvador make up the majority of the TPS population and the most likely Trump targets.

Haitians (200,005 TPS holders):

  • Trump has labeled Haitian immigrants as “animals” and vowed to end their protections.
  • 2010 Earthquake: TPS was granted to Haitians after the 2010 earthquake which left the country unable to absorb returnees.
  • Ongoing Instability: Renewals have been granted due to gang violence, political turmoil and economic collapse. The Federal Aviation Administration prohibited U.S. airlines from landing in Haiti for 30 days due to safety issues involving the international airport.
  • Current Status: Haitian TPS holders have protections until February 2026, approximately 200,000.

Venezuelans (472,000 TPS holders)

  • Mass Displacement: Venezuela’s political and economic collapse has forced 7.7 million to flee the country.
  • A Lifeline for Families: For migrants like Maribel Hidalgo who fled with her infant son, TPS is a lifeline and hope.
  • Current Status: Venezuelan TPS holders have protections until April 2, 2025 or September 10, 2025 (for re-designated), approximately 470,000. The Biden administration announced Venezuelans would receive Temporary Protected Status (TPS), providing legal protection to individuals from unsafe homelands.

Salvadorans (198,000 TPS holders):

  • TPS for El Salvador has been in existence for over 23 years, since 2001.
  • Current Status: Salvadoran nationals have protections until March 9, 2025, impacting about 200,000.

Migrant Stories: Lives in Limbo

Hidalgo’s Journey:

  • Maribel Hidalgo crossed the Darien Gap and Mexico to get to the US with her infant son. For her TPS is a thin lifeline to safety. Her fear:
    • After everything I went through with my son to get to this country, they’ll send me back again.”

Who else is losing TPS protections?

Neary 1.6 million people in the US are eligible for TPS. Of this number, 860,000 have TPS, 486,000 are pending and 320,000 are eligible but not yet applied.

Deeply Rooted in the US: Many TPS holders have been in the US for decades, have raised families and contributed to their communities.

Below is the breakdown of those who have TPS, by country and TPS designation date.

CountryTPS Designation DateEstimated Beneficiaries
Afghanistan202276,000
Cameroon202239,000
El Salvador2001198,000
Ethiopia202231,000
Haiti2010, 2021200,000
Honduras199960,000
Lebanon   2024 Myanmar20211,600
Nepal201514,500
Nicaragua19994,500
Somalia1991, 2023430
Sudan1997, 20223,700
South Sudan2011, 2023370
Syria2012, 20237,500
Ukraine202260,000
Venezuela2021472,000
Yemen20151,600

13 TPS Countries will expire in 2025

TPS for 13 of these countries will expire in 2025, Haiti, Somalia and Yemen’s will expire in 2026 unless extended.

DED: Also At Risk of Losing Protection

TPS is often compared to Deferred Enforced Departure (DED):

  • TPS: Authority comes from legislation.
  • DED: Based on the president’s foreign policy discretion.

Like TPS, those temporarily protected from deportation and granted temporary work authorization under the Deferred Enforced Departure (DED) program are also at risk of being cut or eliminated by Trump.

What is DED?

Like TPS, DED offers temporary protection from removal for individuals who meet specific eligibility criteria established by presidential directives. It does not grant lawful immigration status:

  • Those covered by DED cannot be deported during the designated period.
  • They may qualify for employment and travel authorization based on the terms of the directive.

Trump used DED to protect 145,000 Venezuelans for 18 months towards the end of his presidency

Eligibility for DED

Each directive outlines the eligibility criteria which may include:

  • Nationality of designated country
  • Residency in the United States before a specified date.
  • Continuous presence in the United States during the covered period.

Exceptions

Individuals may be excluded from DED protections for:

  • Criminal activity
  • Security risks

The Numbers

The population of DED Holders is much smaller than that of TPS:

  • Liberians: 3,600
  • Palestinians: 6,000
  • Lebanon: 11,000
  • Hong Kong: 2,800

Palestine and Hong Kong DED Will Expire in 2025.

Palestine and Hong Kong will expire in 2025. Liberia and Lebanon will expire in 2026.

Summary of Current DED Coverage

CountryEffective DateDED Valid ThroughEAD Extended Through
LebanonJuly 26, 2024January 25, 2026N/A
LiberiaOctober 1, 2007June 30, 2026June 30, 2026
Hong KongAugust 5, 2021February 5, 2025February 5, 2025
PalestineFebruary 14, 2024August 13, 2025August 13, 2025

Trump’s Immigration Target:  TPS

What Trump Recently Said:

  • Trump has said he will terminate TPS, calling it a program that should be ended. Trump has promised to stop “mass grants” of TPS and terminate existing protections, has said explicitly that Haitians and Venezuelans under TPS will be deported
  • In an interview with News Nation about Springfield, Ohio where thousands of Haitians live, Trump reiterated his promise to end TPS for Haitian migrants saying:
    • “Absolutely, I’d revoke it and bring them back to their country.”

Controversy Surrounding Springfield:  Misinformation Campaign

  • Trump’s campaign rhetoric on Haitian migrants in Springfield has been widely panned for spreading lies.
  • During a debate with Vice President Kamala Harris, Trump claimed Haitian migrants were:
    • “eating their neighbor’s pets” a completely false and incendiary statement that led to bomb threats against local schools.
    • He said the migrants are:
      • “not here legally” and must be removed.
  • Trump spread unfounded and disputed claims, such as Venezuelan gangs taking over neighborhoods in Aurora, Colorado and TPS holders eating pets—statements that spread fear and misinformation.
    • He said:
      • the Haitian migrants in Springfield “don’t work” and “you have to remove the people; we can’t destroy our country.”

Springfield Impact:

  • About 15,000 Haitian migrants have resettled in Springfield in recent years according to the Associated Press. The community has grown and diversified as a result.

Unanswered Questions:

  • When asked how he would handle Haiti’s refusal to take back deportees, Trump said:
    • “They will. If I bring them back, they’ll receive them.”

JD Vance Support:

  • Vice President-elect JD Vance echoed this, saying TPS is overused and no longer temporary and we need a stricter approach to TPS and humanitarian parole. At an Arizona rally he railed against:
    • “mass grants of Temporary Protected Status”
  • Vance amplified these lies on social media and continues to defend the rhetoric saying:
    • “I’m going to keep talking about what the migrants have done to Springfield, Ohio.”

Local and National Pushback:

  • Vice President Kamala Harris asked Trump to stop, saying:
    • “Regardless of someone’s background, their race or geographic location, people are troubled by what’s happening in Springfield, Ohio and it’s got to stop.”
  • Critics say Trump’s focus on Springfield is divisive and takes attention away from the bigger problems in the immigration system.

What Trump Recently Said:

During his first term, former President Donald Trump ended TPS for Haiti, El Salvador, Nicaragua, and Sudan, covering over 300,000 people, citing improved conditions in their home countries.

His administration said conditions in countries like Haiti had improved enough to end the designations—despite the crises.

Legal battles ensued and terminations were delayed. The Ninth Circuit upheld some rescissions and others were extended by the Biden administration.

Project 2025:

The Heritage Foundation’s Project 2025” which has ties to Trump team leaders outlines a plan to end TPS, calling it a program that encourages illegal immigration.

The plan calls for a big rollback of TPS designations. It wants Congress to repeal existing TPS designations so people from countries like Afghanistan, El Salvador, Haiti and Venezuela have to go home no matter what’s happening back home.

And Project 2025 also wants to limit the discretion of the Department of Homeland Security on programs like TPS to stick to statutory limits and reduce the availability of these humanitarian protections.

What Could Change Under Trump in 2025:

Broader Hardline Policies:

Ending TPS is part of a bigger immigration crackdown:

  • Mass deportations of undocumented individuals (11 million people in the U.S.).
  • Building massive detention centers to hold deportees
  • Ending DACA and humanitarian parole.
  • Ending birthright citizenship.
  • Restarting the U.S.-Mexico border wall.

Key Appointments:

  • Stephen Miller: A hardline immigration advisor who was behind family separations during Trump’s first term, now deputy chief of staff for policy.
  • Tom Homan: Former head of Immigration and Customs Enforcement (ICE) who led the family separation policy, now “border czar”

Targeting Non-Criminals:

  • Despite claims to focus on “criminal aliens” analysts say logistical realities will force enforcement agencies to target the easiest to find which will be long term residents with no criminal records.

TPS Is Targeted

The second Trump term will focus on terminating newer TPS designations and not renewing older ones that will expire in 2025.

Legal Pathways to TPS Termination:

  • DHS can let TPS designations expire or not renew them.
  • If confirmed Trump’s pick for DHS Secretary Governor Kristi Noem will lead the charge to terminate TPS designations.
  • Revoking a designation before its expiration is unprecedented and legally complicated. Federal regulations require 60 days notice and proof that conditions in the home country have improved.

The Devastating Effects of Ending TPS

1. Humanitarian Impact

  • Loss of Protections: Without TPS recipients would lose legal work authorization and be deported to countries still in crisis.
    • Many TPS beneficiaries have lived in the U.S. for decades, have families and contribute to society.
    • Deporting individuals to dangerous conditions is against U.S. values and international law.
    • Deporting migrants to unstable, violent countries could be deadly.
    • Example: Haiti is experiencing gang violence, civil unrest and extreme poverty. Forcing deportees into such conditions may be a violation of human rights.
  • Family Separation: Deportation would uproot lives and separate families. Over 2/3 of TPS holders have U.S. citizen children, creating the potential for widespread family disruption. Families, including over 300,000 U.S.-born children of TPS holders would be separated.

2. Economic Consequences of TPS Cancellation:

Terminating TPS protections, revoking work permits and deporting millions of long term workers would devastate the U.S. economy as follows:

Labor Shortages

  • Industry Disruption/Labor Shortages: TPS holders work in industries such as agriculture, construction, caregiving and hospitality. Removing them would exacerbate workforce shortages. Studies show that without immigrants and their children U.S. labor force growth would have been zero over the past five years.
  • Labor Force Participation: Over 90% of TPS holders are working, much higher than national averages.
  • Employers Unprepared. While Trump’s efforts to end TPS have raised employer awareness, many industries are not ready for the loss of this workforce.
  • Employer Costs: Deporting TPS holders would cost employers $1 billion in turnover and re-hiring costs.

Essential Workforce:

  • 130,000 TPS holders are critical infrastructure workers, supporting economic recovery during crises like the COVID-19 pandemic

Reduced Consumer Spending

  • Spending Power: After taxes TPS households had $8 billion to spend on housing, retail, healthcare and more.

Decline in GDP

  • TPS holders contribute $4.5 billion annually from workers in healthcare, construction and food services.
  • Over 10 years their removal would be $45 billion in lost GDP
  • Mass deportations would reduce GDP by 4.2% to 6.8% according to the American Immigration Council.

Job Loss for Americans:

  • Job Losses: For every 1 million unauthorized immigrant workers deported 88,000 U.S. born workers would lose their jobs, according to the Peterson Institute for International Economics.

Decline in Social Security and Medicare

  • Contributions to social security and medicare would decrease by $6.9 billion over the next 10 years

Additional Costs to Government

  • Increased Enforcement CostsEnding TPS will require significant government spending on enforcement including:
    • Arrests, detentions and deportation.
    • Operating detention centers where deportees may be held for extended periods due to logistical challenges.
    • Deportation logistics.
    • Deporting TPS holders from El Salvador, Honduras and Haiti would cost taxpayers $3 billion in deportation costs

Growth of the Undocumented Population

  • Stripping TPS protections would add to the 11 million already undocumented in the U.S.
  • Counterproductive Outcome: Migrants without TPS are less likely to leave the U.S. and will add to the undocumented population and strain enforcement resources.
  • Remittances sent by TPS holders to their home countries ease economic pressures that drive migration.

Harming Community

  • TPS holders support schools, churches and civic organizations, are part of U.S. communities.

Destabilizing Countries of Origin:

  • TPS recipients send remittances home, lifelines to struggling families and economies.
  • Deporting thousands to unstable countries will worsen humanitarian crises and increase migration pressure on U.S. borders.

For Immigration Policy:

  • TPS is one of the only tools we have to manage humanitarian crises without comprehensive immigration reform.
  • The uncertainty of TPS highlights the need for long term solutions to temporary status.

Elena’s Request:

  • Elena, a Nicaraguan who has lived in the U.S. for 25 years, wants a new TPS designation before Biden leaves office:
    • “Not in January. Not in December. Now.”

Challenges to Ending TPS and Deporting 1.6 Million

Legal and Logistical Challenges

Can Trump End TPS?

Federal regulations allow TPS designations to expire or be renewed but revoking them before expiration is legally complicated and unprecedented.

Legal Hurdles:

  • Past Court Interventions: Trump’s previous attempts to end TPS for Haiti, Sudan and El Salvador were blocked by courts. Attorney Ahilan T. Arulanantham who challenged those efforts expects more legal battles under Trump.
  • Legal challenges will delay or block any sudden termination of the program.
  • Previous attempts to end TPS for countries like Haiti, Sudan and El Salvador were blocked by courts, citing discriminatory motives and lack of justification.
  • Protections can’t be taken away arbitrarily. DHS must show conditions in a country no longer meet TPS criteria. Critics argue in many cases like Haiti conditions have gotten worse not better.
  • Future lawsuits will delay or stop Trump’s plans.

Logistical Challenges:

  • Deporting 1.6 million TPS holders will require significant resources, coordination with home countries and diplomatic agreements.
  • Many of the affected have lived in the U.S. for decades, and will have due process rights to seek protection under asylum or cancellation of removal, or other protections available in immigration court, making deportations harder.
  • Countries like Venezuela and Afghanistan may not accept deportees complicating removal efforts.
  • Deporting 1 million people is a huge undertaking that involves:
    • Negotiating with home countries to accept deportees.
    • Coordinating transportation and reintegration plans for migrants returning to dangerous environments.
    • Deportees will languish in detention for months due to bureaucratic and diplomatic delays.
    • Many countries like Syria and Venezuela don’t have the infrastructure to absorb returnees.

Political Opposition:

  • Advocates and organizations are mobilizing to protect vulnerable populations and push for comprehensive immigration reform.
  • Immigration advocates say sudden termination will violate recipients’ due process and civil rights

What Can TPS Holders Do to Protect Themselves?

Losing TPS status can be scary and confusing but there are options for those who want to stay in the U.S. legally. Here’s a step by step guide to help you understand your options

1. Keep or Use an Existing Legal Status

If you have another legal status besides TPS you can stay in the U.S. as long as that status is valid or case is pending. TPS does not cancel or replace any other legal status you may have.

Examples of Dual or Pending Status:

  • Pending Asylum Applicants: If you applied for asylum before or after TPS you can stay in the U.S. until your asylum application is decided. But if your asylum application is denied after TPS ends you could be deported.
  • F-1 Student Visa Holders: If you have an F-1 visa and have been in compliance with its terms you can continue studying after TPS ends. But working under TPS work authorization without following F-1 employment rules will invalidate your student visa.

What to Do:

  • Review Your Status: Check the validity and terms of your other legal status.
  • Consult a Professional: Talk to an immigration attorney to make sure you’re in compliance with all conditions.

2. Apply for Asylum if You Fear Going Back to Your Country

Asylum is protection given to individuals who face persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Asylum Key Points:

  • Legal Protection: Filing for asylum allows you to stay in the U.S. while your case is processed.
  • Work Authorization: After 1 year without a decision on your case you can apply for a work permit.
  • Pathway to Permanent Residency: If you’re granted asylum you can apply for a green card after 1 year.

Important Notes:

  • 1 Year Deadline: Asylum applications must be filed within 1 year of entering the U.S. or reasonable time after TPS ends.
  • Eligibility: If you were in the U.S. more than 1 year before getting TPS your asylum eligibility may be limited.

How to Apply:

  • Fill out Form I-589 and file with U.S. Citizenship and Immigration Services (USCIS).
  • Gather evidence to support your claim, including documents of the threats or harm you face in your country.
  • Consult an immigration attorney to help you through the asylum process.

Green Card Through Asylum

Eligibility:

  • If you are granted asylum, you can apply for green card after one year.
  • File Form I-485 to adjust status.
  • Provide proof of asylee status and meet admissibility requirement

3. Change to a Nonimmigrant Visa

Many nonimmigrant visa categories are available for those who qualify, such as studying or working in the U.S.

Common Nonimmigrant Visas:

  • F-1 Visa: For students enrolled in a U.S. accredited educational institution.
  • H-1B Visa: For professionals sponsored by a U.S. employer.
  • O VisaFor individuals with extraordinary ability in fields like science, art or business.

Challenges for TPS Holders:

  • Admission” Requirement: USCIS does not consider TPS as a legal admission to the U.S. which is often required to change status in the U.S.
  • Employer Sponsorship: Many work visas require a job offer and employer petition.

Options if Ineligible for In-Country Change:

  • You can leave the U.S., apply for a nonimmigrant visa at a U.S. consulate abroad and come back. But leaving carries risks so consult an attorney before doing so.

4. Permanent Residency (Green Card) Through Family

If you qualify you can apply for a green card through various ways including family sponsorship or employment.

Family-Based Sponsorship

If you have close family ties to a U.S. citizen or lawful permanent resident you may qualify for a green card through family-based immigration.

  • Family-Based Sponsorship
    • Immediate Relatives: Spouses, parents or unmarried children under 21 of US citizens can adjust status without INA § 245(c) bars.
    • Extended Family: Other family-based petitions (e.g. siblings, children over 21) require visa availability and lawful status.
    • Entry: Those who entered the US without inspection may have barriers unless they qualify for travel and re-entry procedures.
  • Apply:
    • The U.S. citizen relative files Form I-130 (Petition for Alien Relative) on your behalf.
    • After approved, adjust status if eligible or apply for an immigrant visa abroad.
  • Considerations:
    • If you entered the U.S. without inspection you may need to leave the country and apply for a waiver to reenter.

Marriage to a U.S. Citizen

Marriage to a U.S. citizen is one of the fastest ways to get a green card.

Key Points:

  • USCIS will require proof of a real marriage. Examples are joint bank accounts, lease agreements and photos together.
  • Those guilty of entering a fake marriages to obtain an immigration benefit have committed a felony, those cases will be denied, and all involved may face 5 years in jail and/or $250,000 in fines.
  • Key Benefits:
    • No visa backlog for immediate relatives of U.S. citizens.
    • Adjusting status in the U.S. can make the process easier if eligible.

If Your Spouse Is a Green Card Holder

  • The process involves:
    • Filing Form I-130 and waiting for visa availability.Once a visa number is available, you can file Form I-485 if your TPS is still valid.
    • Consular Processing: If your TPS expires before a visa is available, you may need to apply for green card at a US embassy or consulate.

Supporting Documents for Marriage-Based Adjustment of Status

  • Marriage-Based Applications (Form I-130 & I-485)
  • Proof of your spouse’s US citizenship or green card (e.g. passport, birth certificate).
  • Marriage certificate.
  • Proof of a real marriage, such as:
    • Joint financial documents (e.g. bank accounts, tax returns).
    • Photos together.

5. Permanent Residency (Green Card) Through Employment

Employment-Based Sponsorship

Employers can sponsor TPS recipients for visas and green card if they qualify.

  • US employers can sponsor TPS holders for certain employment-based green cards
    • Skilled Workers and Professionals: Under employment-based preference categories (e.g. EB-1, EB-2, EB-3).
    • Unskilled Workers: For jobs that don’t require specialized training

Eligibility

You must:

  • Have a US employer willing to sponsor you for a green card.
  • File Form I-140 (Immigrant Petition for Alien Worker).
  • Wait for visa availability to file Form I-485.

Key Steps

  • Employer files a labor certification with the Department of Labor.
  • Employer files Form I-140 (Immigrant Petition for Alien Worker) along with:
    • Labor certification from the Department of Labor.
    • Proof of your qualifications for the job.
    • Evidence of the employer’s ability to pay the offered wage.
  • Once approved and your visa number is current, file Form I-485 to adjust status in the U.S., or apply for an immigrant visa abroad.

Supporting Documents

  • Employment verification letter.
  • Educational credentials or certifications.
  • Department of Labor-approved labor certification (if required).
  • Proof of employer’s ability to pay your wages.

Challenges:

  • Sponsorship is employer-driven and jobs must meet eligibility criteria.
  • Can take years depending on visa availability.
  • Requires proof of lawful admission or parole.
  • TPS holders who entered without inspection must resolve this issue through advance parole travel or consular processing.
  • No more than 6 months of unlawful status since last entry and prior to filing I-485.

6. Special Victim-Based Visas

If you are a victim of certain crimes or trafficking you may be eligible for:

  • U Visa: For victims of crimes who cooperate with law enforcement (can lead to green card)
  • T Visa: For victims of human trafficking (can lead to green card)
  • VAWA:  If you are or were married to a US citizen or Permanent Resident and you suffered spousal abuse (physical or mental) you may be eligible for a VAWA green card.

7. Defend in Immigration Court

If your TPS ends and you have no status the government may start deportation proceedings. In that case you can defend yourself in front of an immigration judge.

Common Defenses:

  1. Asylum or Withholding of Removal: Protection based on fear of persecution or torture in your home country.
  2. Cancellation of Removal:
    • Available if you have lived in the U.S. for at least 10 years and can prove that deportation would cause “exceptional and extremely unusual hardship” to a U.S. citizen or permanent resident family member.
  3. Deferred Action: Ask the judge for temporary protection due to extraordinary circumstances.

Risks:

  • Cancellation of removal is risky as it’s hard to convince a judge of the required hardship. Similarly asylum is risky as it is difficult to persuade most judges that an invididual is likely to face persecution if returned to the home country.

8. Check for U.S. Citizenship or Eligibility for Naturalization

You might already be a U.S. citizen or have a path to citizenship and not even know it.

Check for Citizenship Through Family:

  • If one of your parents or grandparents was a U.S. citizen you may have derived or acquired citizenship.
  • If born abroad to U.S. citizens you may be a citizen.

Military Service:

  • Individuals who served in the U.S. military may be eligible for expedited naturalization.

9. Plan for the Worst Case

If no other options are available you may also choose to leave the U.S. voluntarily. This is usually a last resort and should only be done with an experienced immigration attorney who can advise you if you may be able to file future immigration applications to seek re-entry.

Take Action Now

TPS expiration options are complicated and every case is different. Professional legal advice is key to understanding your options and avoiding mistakes.

If you have TPS, you should:

  • Consult an Immigration Attorney: An attorney can review your individual situation and help you find the best way to legal status.
    • You need expert help to navigate the legal maze and figure out the best adjustment of status path.
    • Review your eligibility for family, employment or asylum-based green cards.
    • Review your case for risks or complications.
    • Create a plan to win the green card process
  • Keep TPS Current: Keep TPS active until your green card is approved.
  • Apply for Advance Parole
    • Authorized travel and reentry can create an opportunity for AOS.
    • Don’t travel outside the US during the green card process unless you have Advance Parole.
  • Get Family-Based or Employment Sponsorship
    • Strengthen your case by getting sponsorship from qualifying family members or employers.
  • Talk to Your Employer:
    • Make sure your employer understands the I-140 process and requirements
  • Document All Changes
    • Keep records of TPS approvals, travel authorizations and visa petitions to make future applications easier.
  • Gather Documents: Make sure you have all the evidence to support your application. Make sure all documents are accurate and complete so you don’t get delays or denials. Collect evidence such as birth certificates, marriage records and employment letters to support your case.
  • File Fast: Start the application process for any other status well before TPS ends to avoid disruption to your life. File as soon as you can to secure your path to permanent residency.
  • Use non-profit immigration organizations.
  • Stay informed on the latest TPS updates.

Are TPS Recipients Eligible to Adjust Status?

Immigration pathways can be tricky, especially for TPS recipients looking to move to lawful permanent resident (LPR) status. This guide breaks down the legal landscape, federal policies, court decisions and potential legislation affecting TPS holders.

Eligibility to Adjust Status from TPS to Green Card

You may qualify if:

  • You become an immediate family member of a US citizen or green card holder, such as marrying a US citizen or being sponsored by a close relative.
  • You get an employment-based green card through a US employer who will sponsor you.
  • You are eligible for a green card through asylum after being granted asylee status.

Why Green Card?

Green card allows you to:

  • Live and work in the US permanently.
  • Have a stable future without the uncertainty of TPS reviews or expiration.
  • Apply for US citizenship after several years as a permanent resident.

Why Adjustment of Status Is Better than Embassy/Consular Processing

Adjustment of status (AOS) allows TPS holders to apply for green cards from within the US, avoiding the risks of consular processing such as:

  • Travel delays.
  • Inadmissibility due to prior unlawful presence.
  • Access to US courts is limited.

But you can’t adjust status if you were never lawfully admitted into the US at any point, including initial entry or most recent re-entry.

Consular Processing Challenges

If you have to leave the US for consular processing, you may face:

  • 3-year or 10-year bars for prior unlawful presence.
    • 180 days to 1 year of unlawful presence = 3-year bar.
    • Over 1 year of unlawful presence = 10-year bar.
    • Waivers for these bars are hard to get.

Adjustment of Status (AOS): How It Works

In discussing adjustment of status, it is first important to udnerstand what TPS provides and what it does not.

Rights of TPS Recipients

  • No Direct Path to Citizenship: TPS does not lead to permanent residency or citizenship. TPS holders can pursue separate pathways to permanetn residency, for example through family or work or asylum petitions.
  • Lawful Nonimmigrant Status: TPS holders are in lawful status for the duration of TPS.
  • Work Authorization: They can work in the US.
  • Travel Authorization: With advance parole, TPS holders can travel abroad and return.

Adjustment of Status (AOS) allows individuals physically present in the US to get a green card without traveling abroad. Here’s how it works:

Eligibility Criteria for AOS

  1. Approved Immigrant Visa Petition: The applicant must have a family or employment-based immigrant visa petition approved by US Citizenship and Immigration Services (USCIS).
  2. Enter the US With Inspection: Under INA § 245(a), the applicant must have entered the US after being inspected and admitted or paroled by immigration authorities.
  3. Maintain Lawful Status. At the time of filing for adjustment of status (I-485), the applicant must be in lawful status, except for those who are the spouse of a US citizen, the parent of a US citizen, or the child under 21 of a US citizen. Also for employment based green cards, there is an exception that unlawful status of less than six months since last entry date, and prior to filing the I-485, is permissible.
  4. Admissibility: The applicant must be admissible to the US under immigration laws

Restrictions Under INA § 245(c)

  • Those who entered unlawfully or failed to maintain lawful immigration status are not eligible to adjust status unless they qualify for an exemption, such as being an immediate relative (spouse, parent or unmarried child under 21) of a US citizen.

Key Legal Developments: TPS and Adjustment of Status

Supreme Court Ruling: Sanchez v. Mayorkas (2021)

The Supreme Court held:

  • TPS does not count as “admission” under INA § 245(a).
  • TPS holders who entered the US unlawfully cannot adjust status based solely on their TPS designation.
  • “Admission” means entering the US after being inspected by an immigration officer.

Federal Policy Shifts: USCIS Guidance

In 2022 USCIS reversed its Matter of Z-R-Z-C- decision. Under the new guidance:

  • TPS recipients who travel abroad with advance parole (using Form I-512T) are considered “inspected and admitted” upon reentry.
  • Returning TPS holders are eligible for AOS if they meet all other requirements.

Impact of Policy Change

This policy opens up more opportunities for TPS holders to adjust status but they still must meet other statutory requirements, such as family or employment-based eligibility.

Advance Parole and Reentry

TPS holders can apply for advance parole to travel abroad and reenter. Upon reentry, they are considered “inspected and admitted” and meet the INA § 245(a) requirement for adjustment of status.

Risks: Traveling with advance parole should be planned carefully with legal advice to avoid issues upon reentry

Consular Processing Challenges

If not eligible for adjustment of status, you may need to leave the US for visa processing. But departure may trigger re-entry ban and complicates the process. Consult an immigration lawyer.

Special Considerations for TPS Holders

If You Entered Without Inspection (EWI)

  • Generally, individuals who entered the US without inspection cannot adjust status.
  • Exceptions for Travel Authorization With TPS
  • TPS holders can apply for Form I-131 (Advance Parole) to travel abroad.
  • Upon reentry, you may satisfy the lawful admission requirement for adjustment of status.

Unlawful Presence Before TPS

  • TPS does not erase unlawful presence accrued before its designation.
  • These must be addressed through waivers or exemptions.

Employment or Visa Violations

  • TPS holders who violated the terms of previous immigration statuses (e.g. by working without authorization) may have additional hurdles to adjust.

Can You Adjust Status if Your TPS Has Expired?

  • To remain in the US lawfully, keep your TPS status current.

If your TPS has expired, consider:

  • Apply for asylum if eligible.
  • Use other valid immigration statuses you held before TPS.
  • Nonimmigrant visas like student or work visas.
  • Get sponsorship from a family member or employer for adjustment of status.
  • Apply for naturalization if eligible.

What If TPS Adjustment of Status Won’t Work?

If you can’t adjust status through TPS, try:

  1. Apply for asylum and pursue an asylum-based green card.
  2. Leave the US, re-enter legally and reapply for TPS (only if safe and less than 180 days of unlawful presence).
  3. Consular processing in your home country for an immigrant visa.
  4. Request USCIS review of denied applications or apply for waivers of inadmissibility.
  5. Request relief from deportation during removal proceedings, such as cancellation of removal, if you can show exceptional hardship to family members.

Key Considerations

  • Inadmissibility Risks: If you spent a lot of time in the US unlawfully, consult an immigration attorney to understand your risks and options.
  • Timelines and Fees: Adjusting status in the US avoids the delays of international travel and consular processing.
  • Legal Support: Immigration law is complicated; get professional help to handle your case.

Key Changes: TPS Travel Permit (Form I-512T)

What is the TPS Travel Permit?

The TPS Travel Permit (Form I-512T) allows TPS holders to travel and reenter the US legally. As of July 1, 2022 USCIS updated the policy, TPS holders who reenter the US with this travel permit will now be considered “inspected and admitted”. This is huge because now TPS holders can apply for a green card if they have a qualifying family, marriage or employment-based petition.

Who?

  • TPS holders who entered the US without inspection can now reenter and meet the green card eligibility.
  • TPS holders with a qualifying family or employment-based sponsor can use this path.

Eligibility for Green Card Through TPS

How TPS Holders Qualify for Residency

To apply for a green card, TPS holders need:

  1. A Qualifying Sponsor:
    • A US citizen spouse, parent, child (over 21) or sibling can sponsor a family-based green card.
    • A US employer can sponsor an employment-based green card.
  2. Lawful Entry:
    • The TPS travel permit now provides lawful entry status when you reenter the US.

Steps for Family and Employment Sponsorship

  • Family-Based Sponsorship:
    • Your sponsor files Form I-130 (Petition for Alien Relative).
    • After approval you file Form I-485 (Adjustment of Status) if you qualify.
  • Employment-Based Sponsorship:
    • Your employer files Form I-140 (Immigrant Petition for Alien Worker).
    • Once the petition is approved and a visa number is available you can file Form I-485.

Steps to Apply for Residency With TPS

1. File for a Travel Permit (Form I-512T)

  • File Form I-131 to request travel authorization.
  • Once approved receive your TPS Travel Permit (Form I-512T).
  • Use this permit to reenter the US legally which will be considered “inspected and admitted” for green card eligibility.

2. File Green Card Petition

  • Make sure you have a qualifying sponsor (family or employer).
  • Submit the appropriate petition (Form I-130 or I-140)

3. File Adjustment of Status (Form I-485)

  • Once your petition is approved file Form I-485 to adjust your status to permanent residency.
  • Submit all supporting documents.

4. Biometrics and Interview

  • USCIS will schedule a biometrics appointment and possibly an interview to verify your eligibility.
  • Bring evidence of your eligibility and lawful reentry to the interview.

Special Considerations for TPS Holders

Travel Risks With the TPS Permit

  • Most TPS holders travel safely with the permit but your immigration history and any prior criminal or deportation issues may create problems.
  • Always consult with an attorney before traveling.

Prior Deportation or Removal Orders

  • If you have a prior deportation order you may need to process your green card application at a US consulate in your home country.
  • Use the TPS travel permit to minimize the time you spend abroad during the application process.

3- or 10-Year Bars

  • Some TPS holders may have inadmissibility issues such as the 3- or 10-year bars for unlawful presence.
  • These bars may require a waiver:
  • Form I-212 (Application for Permission to Reapply for Admission After Deportation).
  • Form I-601 (Application for Waiver of Grounds of Inadmissibility).

More on USCIS Memo on TPS Holders’ Adjustment of Status

USCIS released a memo on July 1, 2022 titled “Rescission of Matter of Z-R-Z-C as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries.” This memo is a big change, TPS holders can now adjust status to permanent residency (green card).

By interpreting authorized travel by TPS holders as “inspected and admitted” the memo provides a clearer path for TPS beneficiaries to get green cards. It also creates a new travel authorization process for TPS holders.

Traveling Under TPS

TPS holders can apply for travel authorization, previously advanced parole. This allows them to leave and reenter the US for various reasons such as family emergencies or work.

Impact on Adjustment of Status Eligibility

Before the July 1 memo the issue of whether TPS holders returning under advanced parole met the “inspected and admitted” requirement for green card eligibility was a big question.

  • Supreme Court ruling in Sanchez v. Mayorkas (2020): TPS status alone does not meet the “inspected and admitted” requirement for adjustment of status.
  • August 2020 Policy Shift (Matter of Z-R-Z-C): TPS holders returning under advanced parole were not considered “inspected and admitted” and were blocked from adjusting status.

March 2022 Duarte v. Mayorkas: The 5th Circuit ruled TPS holders should not use advanced parole for reentry but can travel.

What’s the July 1 Memo?

  1. Adjustment of Status Eligibility
    • TPS holders returning to the US after authorized travel are now “inspected and admitted” for green card purposes.
    • This helps TPS holders who initially entered the US without inspection and wouldn’t otherwise meet eligibility.
  2. New Travel Authorization Process
    • A new form I-512T (Authorization for Travel by a Noncitizen to the United States) replaces advanced parole for TPS holders.
    • So TPS holders can reenter under a process designed for them.
  3. Policy Scope
    • The policy applies to TPS holders who:
      • Get travel authorization from USCIS.
      • Have valid TPS during travel.
      • Are inspected upon reentry at a US port of entry.
      • Reenter under TPS-based travel authorization.
      • For those who traveled before the memo, USCIS will apply this policy on a case by case basis.

Why You Need Legal Help

The Role of Immigration Attorneys

Adjusting green card status as a TPS holder can be tricky especially if you have:

  • A prior deportation or removal order.
  • Criminal history or other inadmissibility issues.
  • Concerns about reentry using the TPS travel permit.

Immigration attorneys can help you:

  • Determine the best path to permanent residency.
  • Fix any legal or procedural hurdles.
  • Increase your chances of getting a green card.

Get Started

If you are a TPS holder and want to transition to permanent residency, do:

  1. Talk to an Immigration Attorney: Get a customized plan for your case.
  2. Apply for TPS Travel Permit: Get reentry eligibility.
  3. Start the Green Card Process: Work with a qualified sponsor to file the forms.

How to Apply for Temporary Protected Status (TPS)

The TPS application process is complex and requires attention to detail. Here’s a breakdown:

Gather Documents

You will need to provide:

  • Proof of Nationality: Passport, birth certificate or other official documents.
  • Proof of Entry: I-94 Arrival/Departure record or other documents showing U.S. entry.
  • Proof of Residence: Utility bills, employment records, school records or other evidence.
  • Fill out Form I-821, Application for Temporary Protected Status.
  • If seeking EAD, file Form I-765, Request for Employment Authorization.
  • Translations for any documents not in English.

Submit Required Forms

  • Form I-821: Application for Temporary Protected Status.
  • Form I-765: Request for Employment Authorization (optional).
  • Form I-131: Application for Travel Document (if seeking travel authorization).

Pay Fees

You must pay the fees or file Form I-912 Fee Waiver Request if you cannot afford them.

Application Costs and Fee Waivers

  • Form I-821 (TPS Application): $50 (free for re-registration)
  • Form I-765 (Work Permit): $520 (free for under 14 or 65 and above).

Fee Waivers

If you cannot afford the fees you can:

  • Fill out Form I-912 (Request for Fee Waiver).
  • Provide proof of financial hardship.
  • USCIS may require you to provide fingerprints, photos and signature for background check.

Respond to USCIS Notices:

  • If additional evidence is requested, respond quickly to avoid delays or denials.

Wait for Decision:

  • USCIS will notify you if approved or denied. Denied applicants can appeal or file a motion to reconsider.

Re-register for TPS

  • TPS must be re-registered during each re-registration period to maintain benefits.

Re-registration steps:

  1. File a new Form I-821 during the re-registration period.
  2. Provide updated evidence if required.
  3. Request a new EAD by filing Form I-765 if applicable.

Consequences of Late Filing:

  • Late re-registration may result in gaps in work authorization and TPS status
  • Late re-registration may result in loss of TPS benefits.

Current Countries for TPS

  • As of 2024:
    • Afghanistan, El Salvador, Ethiopia, Haiti, Honduras, Venezuela, Syria, Ukraine, Somalia, Yemen and more.
  • Recent Updates:
    • Lebanon designated in October 2024 for 18 months.
    • Haiti, Yemen and Somalia extensions are through 2026.

Challenges and Concerns

While TPS is a good program, it has its drawbacks and legal challenges:

  • Uncertainty: Re-evaluation every few years leaves beneficiaries in limbo.
  • Cost: High application and re-registration fees can be a burden.
  • No Permanence: TPS does not offer a clear path to permanent status or citizenship.

Work Authorization:

  • EADs may be extended through Federal Register notices or USCIS announcements.
  • Some TPS beneficiaries may get automatic EAD extensions during the registration period.
  • Expired EADs with USCIS receipt notice can be used as proof of work authorization under certain circumstances.

Travel Authorization:

  • TPS holders must apply for travel document before leaving the U.S. Failure to do so may result in loss of TPS or denied re-entry.

Late Filing for TPS

Late Re-registration:

  • If you miss the re-registration deadline, you can file late with a valid excuse. Late filing may result in gaps in work authorization.

Late Initial Filing:

  • Initial applications can be filed late if:
    • You had a pending asylum application during the original registration period.
    • You are a dependent of a TPS eligible individual.

Travel Requirements for TPS Holders

To travel outside the U.S. on TPS:

  • File Form I-131, Application for Travel Document.
  • Get approval before leaving the U.S.; unauthorized travel may result in loss of TPS.

Common Mistakes to Watch Out For

  1. Missing Deadlines: Register and re-register on time to avoid gaps in benefits.
  2. Incomplete Applications: Check forms for errors and omissions.
  3. Traveling Without Authorization: Always get travel approval to maintain TPS.

How to Avoid Scams

TPS applicants should beware of unauthorized practitioners. For legal advice:

  • Licensed immigration attorneys.
  • Accredited representatives recognized by the Department of Justice.

What to Do if Your TPS Application is Denied

If your TPS application is denied, you can:

  • Appeal: File an appeal to the USCIS Administrative Appeals Office (AAO).
  • Removal Proceedings: If you are in removal proceedings, you can request a review by the immigration judge.

Select the country link for additional specific country information.

More Information

Forms

Tools

Non-USCIS Links

TPS Expansion Under Biden, the “TPS President”

Since January 2021, President Biden has expanded Temporary Protected Status (TPS) to give time limited legal status to immigrants from countries in crisis. This allows individuals to live, work and not be deported in the US.

He’s been called the “TPS President” for this, and has brought stability to hundreds of thousands of families and relief to employers.

Biden’s TPS Policy

  • Coverage: Over 1.6 million from 17 countries are eligible for or have TPS.
  • New Designations: 6 countries—Afghanistan (2022), Cameroon (2022), Ethiopia (2022), Myanmar (2021), Ukraine (2022), Venezuela (2021) and Lebanon (2024)—have been added since 2021.
  • Renewals: Most countries have had their TPS extended so you remain eligible.
  • Permanent Solutions: President Biden is calling on Congress to pass laws so TPS recipients can apply for green cards and eventually citizenship.

Renewals

Long standing TPS for El Salvador, Honduras and Nicaragua—some dating back over 20 years—have been renewed so immigrants from these countries can stay protected.

Efforts to Create Permanent Pathways

On his first day in office, President Biden called for legislation to allow TPS holders to apply for green cards and U.S. citizenship, citing their contributions to society and their long time residence in the U.S.

New Designations or Extensions:

  • Since 2021, the Biden administration has made 18 new TPS designations or extensions for countries like:
    • Venezuela
    • Afghanistan

Biden’s Decision to Reversal of Trump’s Terminations

In June 2023 the Biden administration announced they would rescind the Trump administration’s termination of Temporary Protected Status (TPS) for over 300,000 individuals from El Salvador, Honduras, Nepal and Nicaragua. While this was a big win for TPS holders, it was not permanent and many are still in limbo. Here’s the breakdown of the announcement, what it means and the ongoing fight.

1. What Happened Under Trump?

Terminations of TPS:

  • 2017-2018: President Trump terminated TPS for 6 countries:
    • El Salvador
    • Haiti
    • Nicaragua
    • Sudan
    • Nepal
    • Honduras
    • These terminations were part of a broader effort to roll back humanitarian protections and were widely seen as discriminatory and political.

Legal Challenges:

  • TPS holders and their U.S. citizen children filed an unprecedented lawsuit, Ramos v. Mayorkas, to stop the terminations.
  • In 2018 the plaintiffs won a preliminary injunction and the terminations were halted and TPS holders could stay protected while the case continued.

2. The Biden Administration’s Actions

Reversing Trump’s Terminations:

  • DHS rescinded Trump’s TPS terminations for El Salvador, Honduras, Nepal and Nicaragua.
  • Extensions were given and over 300,000 TPS holders are temporarily protected.

What’s Missing:

  • No Permanent Solution: The rescission doesn’t provide a pathway to permanent residency so TPS holders are still in limbo.
  • Exclusions: Haiti and Sudan were redesignated for TPS earlier but not El Salvador, Honduras, Nepal or Nicaragua.

3. TPS Holders

A History of Uncertainty:

  • Most TPS holders affected by these terminations have been in the U.S. for 20+ years, raising families, working in essential industries and contributing to their communities.
  • For 5 years they lived with the threat of deportation due to legal battles and administrative delays.

Voices of TPS Holders:

  • Elsy Flores de Ayala: A TPS holder and organizer with the National TPS Alliance said: “When Trump terminated TPS for me and my family we mobilized and never looked back. We know this is the bare minimum we deserve. We will continue to fight to protect our families.”
  • Crista Ramos: The lead plaintiff in Ramos v. Mayorkas said: “Trump’s decisions would have separated my family. We’ve fought every step of the way to stay together and this fight doesn’t end today.”

4. Why This Fight Isn’t Over

Ongoing Advocacy:

  • While the Biden administration’s rescission is progress, TPS holders and advocates say more is needed.
  • Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA, said: “The Biden administration has given some protection but not permanent residency.”

The TPS Case in Court:  What We Learned

Ramos v. Mayorkas

On February 26, 2024, TPS holders and their U.S. citizen children won a 6 year long legal battle that protected over 400,000 people from losing humanitarian protections under the Trump administration. While the Ramos v. Mayorkas case was a big win TPS holders and advocates say the fight for permanent residency and broader immigration justice is far from over.

1. Trump’s TPS Termination

Background:

  • In 2017 and 2018 the Trump administration tried to terminate TPS for six countries:
    • El Salvador
    • Haiti
    • Honduras
    • Nepal
    • Nicaragua
    • Sudan
  • TPS holders along with their U.S. citizen children filed the lawsuits Ramos v. Mayorkas and Bhattarai v. Mayorkas to challenge these terminations, citing racial discrimination and illegal conduct.

Ramos et al v. Mayorkas

  • Filed: 2018, U.S. District Court, Northern District of California. Ramos v. Wolf
  • Plaintiffs: 9 TPS holders and their U.S. citizen children.
  • Claims:
    • DHS violated the Administrative Procedure Act (APA) by changing long standing practices without explanation.
    • DHS ignored new events in TPS-designated countries and only looked at original conditions.
    • Terminations were motivated by racial and national origin bias, violating equal protection.
  • District Court Ruling (2018):
    • Issued a preliminary injunction against terminations for Sudan, Nicaragua, Haiti and El Salvador.
    • Found evidence of discriminatory intent, citing Trump’s racist statements.
  • Ninth Circuit Appeal:
    • 2020 Panel Decision:
      • Reversed the injunction, holding 8 U.S.C. § 1254a(b)(5) bars judicial review of TPS substantive decisions.
      • Dismissed equal protection claims for lack of direct evidence of racial animus.
  • 2023 En Banc Review:
    • Reversed the 2020 panel decision and set rehearing for June 2023
    • Filed: March 12, 2018, in Northern California District Court.
  • Biden Administration’s Action (2023): The administration reversed Trump’s terminations and extended TPS for over 300,000 people and redesignated Haiti and Sudan.
  • Case Dismissed as Moot (December 2023): The federal court dismissed the Ramos case, saying the Biden administration would not reinstate the illegal terminations.For more information, access resources from the ACLU Southern California:

2. TPS Holders and Their Families

Stories:

  • Crista Ramos: Lead plaintiff and daughter of a TPS holder: “I was in 8th grade when this started. Now I’m in college and dedicating myself to immigrant rights. We fought for our families and against the obvious injustice.”
  • Jose Palma (National TPS Alliance): Salvadoran TPS holder : “We were told to pack our bags and leave but through unity and organizing we protected TPS. The fight continues for permanent residency”

Immigration Justice

Beyond TPS:

  • As plaintiff Sajjan Pandey (Nepal) said “Our fight has never been about TPS alone. It’s about immigration justice for all.”
  • Advocates are working to change the system to address the problems faced by millions of undocumented and temporarily protected immigrants in the US.

Power of Collective Action:

  • The Ramos case shows the value of grassroots organizing, legal advocacy and political pressure in advancing immigrant rights.

Takeaways:

  • Community Power: Many TPS holders noted how unity and organizing helped them through years of uncertainty and fear.
  • Focus on Permanent Solutions: While this is a big win, TPS holders said their ultimate goal is permanent residency for all.

3. Advocacy and Legal Action

Advocates’ Work:

  • A coalition of legal and advocacy organizations, including the ACLU Foundations of Northern and Southern California, Adhikaar and the National TPS Alliance, won legal protections.
  • Jessica Bansal (Unemployed Workers United): “This case prevented a huge injustice but the fight isn’t over. TPS holders deserve the permanent protections they have earned.”

Legal and Community Action:

  • The lawsuits and advocacy showed the power of grassroots organizing as TPS holders built political power and raised awareness about their contributions to US society.

Other Court Cases

In addition to Ramos, the U.S. Department of Homeland Security (DHS) has faced multiple legal challenges after terminating Temporary Protected Status (TPS) for several countries and Deferred Enforced Departure (DED) for Liberia.

These cases, brought by various organizations and individuals, argue the terminations are discriminatory, procedurally unfair or unconstitutional. This page summarizes the cases, the arguments and what it means for affected individuals.

Cases and Updates

  1. NAACP v. DHS
    • Filed: January 24, 2018 in Maryland District Court.
    • Issue: Claims the termination of TPS for Haiti is racially discriminatory and violates the Fifth Amendment’s Due Process Clause.
    • Arguments:
      • DHS did not properly assess conditions in Haiti, including housing, food security and public health after the 2010 earthquake.
      • Systemic bias against immigrants of color, particularly Haitians.
    • Current Status:
      • Survived government motion to dismiss in March 2019.
      • Plaintiffs are seeking an injunction to stop the termination of TPS for Haiti.
  2. Centro Presente v. Trump
    • Filed: February 22, 2018 in Massachusetts District Court.
    • Issue: Challenges TPS termination for El Salvador and Haiti as discriminatory under the Fifth Amendment’s Equal Protection and Due Process clauses.
    • Expanded Scope:
      • Honduran TPS holders were added to the case in May 2018.
    • Court Ruling:
      • The court denied the government’s motion to dismiss, saying the government didn’t provide enough evidence that the terminations weren’t discriminatory or arbitrary.
      • Case is on hold pending Ramos et al v. Nielsen.
  3. Saget v. Trump
    • Filed: March 15, 2018 in Eastern District of New York.
    • Issue: TPS termination for Haiti is procedurally unfair under the APA and INA.
    • Key Arguments:
      • The administration didn’t follow required notice-and-comment rulemaking.
      • Racial bias, citing President Trump’s comments.
    • Court Ruling:
      • Nationwide preliminary injunction issued in April 2019 to stop the termination of TPS for Haiti.
      • Case is on appeal in the Second Circuit.
  4. Casa De Maryland, Inc. v. Trump
    • Filed: March 23, 2018 in Maryland District Court.
    • Issue: Claims TPS termination for El Salvador is discriminatory and violates the INA, APA and constitutional rights.
    • Updates:
      • INA claim dismissed, other claims allowed to proceed.
  5. Bhattarai et al v. Nielsen
    • Filed: February 10, 2019 in Northern California District Court.
    • Issue: TPS termination for Honduras and Nepal is a departure from established practice, violating APA and constitutional protections.
    • Related to Ramos Case:
      • Preliminary injunction in Ramos stops terminations for Hondurans and Nepalis while the case is pending.
  6. African Communities Together v. Trump
    • Filed: March 8, 2019 in Massachusetts District Court.
    • Issue: Challenges DED termination for Liberia, claims constitutional violations.
    • Outcome:
      • The Trump administration extended DED for Liberians by one year in March 2019.
      • Case was dismissed in October 2019, court ruled DED terminations are discretionary and not reviewable.
  7. Moreno v. Nielsen
    • Filed: February 22, 2018 in New York.
    • Issue: DHS policy preventing TPS holders who entered without inspection from adjusting status under INA §245(a).
    • Relief Sought:
      • Declaration that the policy is invalid.
      • Injunction to allow TPS holders in certain areas to adjust status if eligible.
  8. Central American Resource Center v. Cuccinelli
    • Filed: August 26, 2020 in D.C.
    • Issue: Challenges a USCIS policy change that prevents TPS holders with prior removal orders from adjusting status after reentry with permission.
    • Claims:
      • Policy violates APA and constitutional due process.

Common Claims In Litigation

Equal Protection Violations:

  • Many cases claim terminations were discriminatory.
  • Comments from administration officials are often used as evidence.

APA Violations:

  • Terminations are sudden, not in accordance with established practice and not adequately explained.

Due Process Violations:

  • Policies force U.S. citizen children of TPS holders into impossible choices, violating their rights.

Procedural Failures:

  • No notice and comment as required by the APA.

Affected Individuals

  • Legal Limbo: Cases in progress leave TPS and DED holders in limbo, unable to work, travel or plan for the future.
  • Family Separation: U.S.-born children of TPS recipients are forced to make impossible choices because of their parents’ status.
  • Economic and Social Costs: TPS and DED termination would displace tens of thousands of workers, disrupt communities and strain public resources.

Litigation Implications

Immediate Impact on TPS Recipients

  • Injunctions: Stopped DHS from terminating TPS for key countries during the case.
  • Extension of Documents:
  • DHS extended TPS work permits and related documents

Outcomes

  1. If Terminations Are Allowed:
    • TPS recipients from affected countries would lose status and be deportable.
    • DHS has announced a 365-day grace period after final court decisions before enforcing terminations.
  2. If Terminations Are Reversed:
    • TPS for affected countries may remain in effect indefinitely or until DHS decides otherwise.

How TPS Holders Qualify for Residency

  • Cases like Ramos set important precedents on judicial review of immigration decisions and the balance of executive discretion under the INA.

Can Trump Make the Case That TPS Is No Longer Needed?

Case Study: Haiti Is Worse Off Today Than In 2010

Now that Trump has promised to end TPS for Haitians, it’s worth looking at the history of this program for Haitians and the country’s current situation.

How Haitians Got TPS:

  • 2010 Earthquake: After a massive earthquake, the Obama administration granted TPS to Haitians because the country couldn’t absorb returnees.
  • Ongoing Instability: Subsequent administrations extended TPS for Haitians due to political crises, human rights abuses, gang violence and natural disasters.
  • Current Status: In 2021, President Joe Biden re-designated Haiti for TPS which now runs until February 2026. Over 200,000 Haitians are currently protected under the program. In many ways, Haiti is more dangerous and worse off than in 2010.

How Haitians Got TPS:

  • 2010 Earthquake: After a massive earthquake, the Obama administration granted TPS to Haitians because the country couldn’t absorb returnees.
  • Ongoing Instability: Subsequent administrations extended TPS for Haitians due to political crises, human rights abuses, gang violence and natural disasters.
  • Current Status: In 2021, President Joe Biden re-designated Haiti for TPS which now runs until February 2026. Over 200,000 Haitians are currently protected under the program. In many ways, Haiti is more dangerous and worse off than in 2010.

Current Challenges in Haiti:

  • Political Crisis: The assassination of Haitian President Jovenel Moïse in 2021 made the situation worse.
  • Violence and Insecurity: Airports and commercial flights are under gunfire. Gang violence is widespread.
  • Economic Collapse: Haiti’s economy and infrastructure are fragile and one of the least prepared countries to receive deportees.

Current Protections:

  • Haitian TPS is until February 2026, a temporary reprieve for many migrants.
  • Humanitarian parole is for those who arrived after June 3, 2023 TPS eligibility cutoff, so they can stay in the U.S. temporarily.

Haitians in Springfield, Ohio:

  • Many Haitian migrants in Springfield came through the Biden administration’s parole program which requires participants to have vetted sponsors in the U.S.
  • Others have had TPS since before the Biden administration expanded eligibility in June 2024.
  • Springfield has 12,000-15,000 Haitian immigrants, most of whom are TPS or humanitarian parole. Many came because of Haiti’s political instability, gang violence and natural disasters.

Misinformation and Fallout:

  • Trump has repeatedly spread misinformation about Haitian migrants in Springfield including during a debate that they were “eating their neighbor’s pets.”
  • These lies have led to fear and violence:
  • From September 10 to September 20, Springfield had over 35 threats of violence including bomb threats to schools, supermarkets and hospitals.
  • Local colleges went to remote learning due to safety concerns.

Local Leaders Speak Out:

  • Springfield officials, including Mayor Rob Rue, have called the rumors false and harmful: “there is no factual evidence to support this.”
  • Ohio Governor Mike DeWine acknowledged the initial adjustment period for the influx of Haitian migrants but called them: “positive influences” in the community.

Local Leaders Speak Out:

  • Haitian immigrants are filling critical jobs in industries with labor shortages in Springfield.
  • The city estimates 12,000-15,000 immigrants (many of them Haitian) live in Clark County which has a population of 136,000.

Community:

  • Haitian migrants are not only workers but part of the community, part of the social and cultural fabric.

What Can Trump Do to These Programs?

Ending TPS:

  • Trump can refuse to renew TPS when it expires in February 2026 and leave recipients without protection. Advocacy groups are pushing for TPS for Nicaraguans fleeing oppression under President Daniel Ortega’s government.
  • While termination before the expiration date is legally complicated, his administration can try to end it early and create a legal mess.

Ending Humanitarian Parole:

  • Humanitarian parole is easier to cancel than TPS. Trump’s administration can cancel parole for Haitian migrants and leave thousands vulnerable to deportation if they don’t have other protections.

Limiting Future Designations:

  • Trump can refuse to redesignate TPS for Haitians who arrived after June 3, 2023 cutoff and block new arrivals from being eligible.

Legal and Logistical Challenges

Mass Deportations:

  • Trump has promised mass deportations but legal and logistical hurdles make immediate removals impossible.
  • Deportation cases have to go through immigration courts which are backlogged.
  • Each individual facing deportation is entitled to a hearing which delays removals.

Legal Battles:

  • Previous attempts to terminate Haitian TPS under Trump were blocked by federal courts:
    • In 2017, DHS tried to end TPS for Haiti, saying conditions had improved.
    • In 2019 a federal judge ruled the administration’s decision was political and blocked termination.

Advocacy and Resistance:

  • Organizations like Advocates for Basic Legal Equality (ABLE) will challenge civil rights violations and unlawful terminations of protections under a new Trump administration.
  • Support Networks:
    • Groups like Haitian Community Help and Support Center are building networks of immigration attorneys to help those facing legal challenges.
    • Advocates emphasize the importance of knowing constitutional protections and preparing for Trump changes.

The Biden Administration

What Biden Can Do Before He Leaves:

  • Extend TPS for Haiti: President Joe Biden can extend Haitian TPS before he leaves office but he must act now.
  • New Designations: Advocates are advocating for TPS to be expanded to other vulnerable groups like Nicaraguans fleeing political persecution.

What Can Be Done to Save TPS?

Biden Administration’s Last Moves:  Request New Designations

  • Extend and expand registration periods for countries like El Salvador and Honduras where conditions are not safe.
  • Advocates are demanding TPS for Nicaraguans where political repression under Daniel Ortega’s government has increased. Less than 3,000 Nicaraguans are covered by TPS granted after Hurricane Mitch in 1998 leaving many newer arrivals unprotected. There is an urgency for further TPS protections for Nicaraguans before President Joe Biden’s term potentially concludes.
  • Advocacy groups are asking for additional designations for Guatemala, Colombia, Mauritania and Mali before Biden leaves office.

Advocacy:

Groups like National TPS Alliance and CASA are pushing for continued protections and for Congress to pass legislation.

Advocacy has blocked previous attempts to end TPS and can help defend the program under a new Trump administration

  • Organizations and activists are mobilizing to demand:
    • Extensions for Current Countries: Continued protections for current TPS recipients.
    • Pathways to Citizenship: Advocating for permanent solutions like the Dream and Promise Act which would give TPS holders a path to legal residency and citizenship.
  • Educate the public and policymakers on the economic and social contributions of TPS recipients. Advocates say protecting migrants is both a moral obligation and an economic necessity for the US workforce.

Congressional Action:

  • Call to Action: Tell Congress to pass humane immigration reform for TPS holders.
  • Dream and Promise Act (2019): Passed by the House, this bill would give a pathway to citizenship to TPS, DED and DACA recipients.
  • U.S. Citizenship Act (S. 348): Comprehensive immigration reform with a pathway to citizenship for TPS holders.
  • Bipartisan Efforts: Previous Senate bills like the 2013 immigration reform bill also had long term solutions.

Why Now

  • Without legislation:
    • Most TPS holders might be deported when their country’s designation ends.
    • Families will be torn apart, with U.S. citizen children forced to choose between their parents and their home country.
    • Communities will lose essential workers and local economies will suffer.

Why TPS Holders Need A Permanent Solution

Temporary Protected Status (TPS) allows individuals from designated countries to live and work in the United States when their home country is going through extreme conditions. While TPS protects recipients from deportation it does not inherently provide a path to lawful permanent resident (LPR) status (green card). This detailed explanation explains the current legal framework, past legislation and current proposals to address this gap.

Key Legal Framework for Adjustment of Status

No Automatic Path to LPR Status:

  • TPS recipients are not eligible for LPR status but can apply through other avenues like family- or employment-based immigration if they meet certain requirements.

Eligibility for Adjustment of Status:

  • Under Section 245(a) of the INA a person must have been “inspected and admitted or paroled” into the U.S. to adjust to LPR status.

For many TPS holders especially those who entered the U.S. illegally this requirement is a major hurdle.

Supreme Court Ruling:

  • In June 2021 the U.S. Supreme Court ruled in Sanchez v. Mayorkasthat TPS status alone does not constitute “inspection and admission” under the INA. This decision limits the ability of some TPS holders to adjust status unless they entered the U.S. legally or were subsequently paroled.

Senate Supermajority Requirement:

  • Section 244(h) of the INA requires a supermajority (3/5) in the Senate for any bill that would give TPS holders LPR status. This procedural hurdle makes it harder to pass legislation.

Past Legislation for Adjustment of Status

In the past Congress has passed laws allowing certain TPS or Deferred Enforced Departure (DED) recipients to adjust to LPR status. Here are a few examples:

1. Chinese Nationals Post-Tiananmen Square (1992):

  • After the 1989 Tiananmen Square massacre Congress passed Public Law 102-404 allowing DED recipients to adjust to LPR status.

2. Nicaraguan Adjustment and Central American Relief Act (NACARA) (1997):

  • This law gave LPR status to:
    • Nicaraguans, Cubans, Guatemalans, Salvadorans and individuals from former Soviet bloc countries who had applied for asylum and lived in the U.S. for an extended period.
    • Many Salvadorans and Guatemalans under TPS benefited from this law.

3. Liberian Refugee Immigration Fairness (LRIF) (2019):

  • Part of the FY2020 National Defense Authorization Act this provision allowed Liberians who had been continuously present in the U.S. since November 20, 2014 and their families to apply for LPR status.
  • Signed into law by President Trump it’s a model for addressing TPS recipients’ status through targeted legislation.

The American Dream and Promise Act

  • Introduced: H.R. 6 (117th Congress, 2021) and H.R. 16 (118th Congress, 2023)
  • Key Provisions:
    • TPS recipients as of January 1, 2017 or DED recipients as of January 20, 2021 can apply for LPR status if they meet residency and eligibility requirements.
    • TPS recipients are considered “inspected and admitted” for adjustment of status.
    • Scope:
      • 14 countries.
  • Legislative Status:
    • Passed the House in 2021 but stalled in the Senate. A new version H.R. 16 is pending in the 118th Congress.

Legislation in the 118th Congress: TPS and DED

In the 118th Congress many bills were introduced on TPS and DED covering a range of proposals. Some aim to expand benefits for TPS and DED recipients and others to limit eligibility and use. Below is a list of these bills, including new designations, increased access to federal benefits and LPR status.

Here are a few recent ones:

1. TPS Designations

Several bills would extend TPS eligibility to nationals of countries in crisis. These bills would prevent deportation and allow individuals to live and work in the U.S. temporarily. Examples:

  • H.R. 2913, H.R. 7034, H.R. 7371, S. 3618:
    • Bills to designate new countries for TPS due to ongoing conflicts or extraordinary conditions.
  • Reason:
    • Countries hit by natural disasters, political instability or armed conflict are often proposed for TPS so their nationals living in the U.S. can be safe.

2. Education for TPS and DED Beneficiaries

Some bills would provide federal financial aid for higher education to TPS and DED recipients recognizing education is key to economic contributions and social integration.

  • Key Bills:
    • H.R. 4117, H.R. 1701, S. 1963: Would make TPS and DED recipients eligible for federal financial aid, Pell Grants, loans and scholarships.
  • Impact:
    • These would open up educational opportunities that are currently not available to many TPS and DED recipients due to financial barriers.

3. Congressional Jobs

A few bills would open up federal congressional jobs to TPS and DED recipients to address the limitations on their participation in certain government positions.

  • Key Bills:
    • H.R. 1381, S. 672: Would make TPS and DED holders eligible to work in congressional offices.
  • Importance:
    • These bills would increase inclusivity in federal government employment, recognizing the value TPS and DED recipients can bring to policy making and administration.

4. TPS Beneficiaries and Military Service

Bills have been introduced to allow TPS holders to enlist in the U.S. military, recognizing their contributions to national security.

  • Key Bill:
    • H.R. 2913: Expands military enlistment eligibility to TPS beneficiaries.
  • Goal:
    • This would address military recruitment challenges and provide TPS holders with a path to permanent status through service.

5. Farm Workforce Modernization Act

  • Versions Introduced: H.R. 1603 (117th Congress, 2021) and H.R. 4319 (118th Congress, 2023).
  • Provisions:
    • Creates a path for agricultural workers, including TPS and DED recipients, to transition to legal temporary status and then LPR status.
  • Status:
    • Passed House in 2021 but pending in 118th Congress

Pathways to Lawful Permanent Residency (LPR)

Several bills would give TPS and DED recipients a clear path to permanent residency.

  • Notable Examples:
  • Obstacles:
    • Despite bipartisan support for some bills, political polarization and procedural hurdles (e.g. Senate supermajority requirements) are blocking these bills.

Restrictive Bills Targeting TPS Eligibility

While some bills expand benefits, others shrink TPS eligibility or add new restrictions.

1. Limiting Eligibility

Some bills would disqualify individuals based on criminal or political affiliations:

  • Criminal Gangs: Makes gang members ineligible for TPS.
  • Palestinian Authority Travel Documents: Bills would restrict TPS eligibility for individuals with travel documents from the Palestinian Authority.

2. Congressional Oversight

One bill would introduce broad measures to limit and regulate TPS:

  • Congressional Approval for Extensions: Requires Congress to approve TPS designations beyond the initial extension.
  • Restrictions on Reinstated Designations: Prohibits new designations for countries terminated within the last 18 months unless specific conditions are met.
  • Limitations on Grounds of Inadmissibility: Reduces DHS’s ability to waive inadmissibility criteria for TPS applicants.
  • Travel Restrictions: Adds new rules for TPS recipients traveling abroad.

Broader Legislative Trends

More Rights

  • Bills expanding TPS and DED rights recognize the value of these individuals to the U.S. economy, communities and society. Education, military service and work opportunities are key themes in pro-expansion bills.

More Oversight and Restrictions

  • On the other hand, restrictive bills aim to curb perceived TPS abuses. These measures focus on national security, tighter eligibility requirements and less DHS discretion in TPS.

Challenges and Next Steps

Political Obstacles

  • Political Polarization:
    • Immigration reform is a hot button issue with disagreements over border security and citizenship pathways derailing TPS related bills.

Senate Supermajority Requirement:

  • 60 Senate votes are required to pass TPS adjustment bills making bipartisan support a must but hard to come by.

Niche Legislation:

  • Past laws (e.g. NACARA and LRIF) were targeted to specific groups leaving many TPS recipients without a clear path to LPR status.

Judicial Decisions:

  • Court cases like Sanchez v. Mayorkas show the limits of current law and the need for legislative solutions.

Complex Legislative Process

  • Many bills face procedural hurdles, including Senate supermajority requirements.

Advocacy and Public Awareness

  • Advocacy groups and community organizations are pushing for more protections and benefits for TPS and DED recipients, highlighting their economic and social contributions.

No Adjustment Pathway Consequences

  1. Legal and Financial Uncertainty:
    • TPS recipients are often stuck in limbo, unable to invest in homes, businesses and communities.
  2. Families:
    • Many TPS recipients have U.S. citizen children or spouses, deportation would be a disaster for mixed status families.
  3. Economic Contributions:
    • TPS recipients contribute to the U.S. economy particularly in healthcare, agriculture and construction. A pathway to LPR status could amplify these contributions.

State by State Demographic Breakdown of TPS Recipients

TPS recipients, individuals allowed to stay in the U.S. due to unsafe conditions in their home countries, are in all 50 states, D.C. and U.S. territories. As of March 2024 there are 863,880 TPS recipients. This article will look at the distribution of TPS recipients, key states, regional demographics and overall implications.

States with the Most TPS Recipients

Florida: TPS Central

  • Total Recipients: 295,720 (34% of all TPS holders).
  • Key Demographics:
    • Venezuelans: 57% of Florida’s TPS population.
    • Haitians: 35%.
  • Why Florida?
    • Florida’s proximity to Latin America and the Caribbean and established immigrant communities makes it the top state for TPS holders. Cities like Miami and Orlando are TPS hotspots.
    • Economic Impact:
      • TPS holders in Florida contribute to industries like hospitality, construction and healthcare.

Texas

  • Total Recipients: 93,680.
  • Demographics:
    • Mostly Venezuelans and Central Americans (El Salvador, Honduras and Nicaragua).
  • Why Texas?
    • Large economy and jobs attract immigrants. Border proximity and existing diaspora communities help migration.

New York: Diverse TPS Population

  • Total Recipients: 67,840.
  • Demographics:
    • Haitians, Venezuelans and Central Americans.
  • Why New York?
    • Known for its immigrant population, New York has resources and community support for TPS holders, particularly in NYC and Long Island.

California: Migrant Magnet

  • Total Recipients: 67,800.
  • Demographics:
    • Central Americans, Haitians and African nations.
  • Why California?
    • California’s reputation as a welcoming state and strong immigrant networks attracts TPS holders. Opportunities in agriculture, tech and service industries.

Other States with 10,000+ TPS Recipients

Besides the top 4 states, 12 others have over 10,000 TPS recipients:

  1. New Jersey: 31,480.
    • Key Communities: Venezuelans and Central Americans, Newark and Paterson.
    • Industries: Healthcare and service sectors.
  2. Georgia: 29,630.
    • Key Communities: Central Americans and Venezuelans, Atlanta.
    • Industries: Construction and agriculture.
  3. Maryland: 28,700.
    • Key Communities: Salvadorans make up the majority of Maryland’s TPS population.
    • Why Maryland?
      • Suburban areas near Washington, D.C. have jobs and community support.
  4. Massachusetts: 27,780.
    • Key Communities: Haitians make up a large part of the state’s TPS population.
      • Industries: Education and healthcare sectors.
  5. Virginia: 26,080.
    • Key Communities: Salvadorans and other Central Americans in Northern Virginia.
    • Why Virginia?
      • Proximity to the Washington, D.C. metro area has economic and social opportunities.
  6. North Carolina: 22,140.
    • Key Communities: Central Americans (Hondurans and Salvadorans).
    • Industries: Manufacturing and agriculture.
  7. Illinois: 19,730.
    • Key Communities: Chicago is a TPS hotspot with large Salvadoran and African populations.
    • Industries: Hospitality and service sectors.
  8. Indiana: 18,775.
    • Why Indiana?
      • Affordable living and jobs in manufacturing and agriculture.
  9. Ohio: 12,775.
    • Key Communities: Central Americans and Venezuelans.
    • Why Ohio?
      • Urban areas like Columbus and Cleveland have jobs and community networks.
  10. Pennsylvania: 11,955.
    • Key Communities: Philadelphia has a large Venezuelan and Haitian population.
  11. Tennessee: 10,295.
    • Key Communities: Central Americans and Africans, Nashville.
  12. Utah: 10,215.
    • Key Communities: Venezuelans make up the majority of Utah’s TPS population.
    • Industries: Tech and service sectors attract TPS holders.

States with Growing TPS Populations

While smaller in numbers, some states are seeing TPS growth due to local job markets and affordability:

  • Colorado: 6,590 (Haitian and Venezuelan communities).
  • Connecticut: 5,510 (diverse immigrant population, Haitians and Central Americans).
  • South Carolina: 5,835 (agriculture and manufacturing growth).
  • Washington: 9,500 (diverse population, Central Americans and Africans).

Smaller States and Territories

While fewer TPS recipients live in these areas, they are still important pockets of diversity:

  • Hawaii: 230.
  • Montana: 155.
  • Vermont: 80.
  • Wyoming: 130.
  • U.S. Territories:
    • U.S. Virgin Islands: 2,560.
    • Puerto Rico: 610.

Total TPS Recipients

  • Nationwide Total: 863,880 as of March 31, 2024.
  • Geographic Distribution:
    • 34% of TPS recipients live in Florida.
    • Top 4 states (Florida, Texas, New York, California) account for 60% of all TPS holders.
  • Key Points:
    • Gateway states are still dominant, but Utah and Tennessee are emerging as new TPS hubs.

Economic Impact of TPS

TPS holders are crucial to the U.S. economy in:

  • Hospitality: Florida and Nevada.
  • Agriculture: California, Texas, North Carolina.
  • Healthcare: Maryland and New Jersey.
  • Manufacturing: Indiana, Ohio, and Tennessee draw TPS holders due to job opportunities.

Employment and Earnings

TPS holders have high labor force participation and many achieve financial stability and career advancement over decades in the U.S.

Key Facts (2021 data)

  • Total Income:
    • $10.3 billion for all TPS households in the U.S.
  • Top States by Employment Rates:
    • Virginia: 97.5%
    • Maryland: 95.9%
    • National Average: 94.6%
  • Industry Representation:
    • TPS holders work in multiple sectors, filling labor gaps in agriculture, education, healthcare and service industries.

State Examples

  • Virginia:
    • 97.5% employment rate among TPS holders, major contributions in healthcare and education.
  • Florida:
    • TPS population earned $1.6 billion, $1.2 billion in purchasing power.

Tax Contributions

TPS holders are good taxpayers, paying into public programs but not eligible for most federal benefits.

Federal Contributions

  • Support entitlement programs like Social Security and Medicare so seniors can age in the U.S.

State and Local Contributions

  • $1 billion annually to state and local services including:
    • Public education
    • Emergency services
    • Infrastructure projects

Underutilization of Public Benefits

  • TPS holders are not eligible for most federal programs including:
    • SNAP (Supplemental Nutrition Assistance Program)
    • TANF (Temporary Assistance for Needy Families)
    • Regular Medicaid (only for emergencies)

They pay more in taxes than they can access in benefits.

Consumer Spending and Purchasing Power

TPS holders are key consumers in the U.S. economy. Their spending supports small businesses, local economies and the service sector.

Key Facts (2021 data)

  • Spending Power:
    • TPS households kept $8 billion after taxes and spent it.
  • Service Industry Support:
    • 80% of U.S. jobs are in the service sector which is driven by consumer spending.
  • Local Impact:
    • Spending supports everyday services like restaurants, retail and entertainment.

State Examples

  • California:
    • TPS households had $1.5 billion in spending power, critical to the state’s economy.
  • Texas:
    • TPS holders spent $1.2 billion, in construction and retail.

Entrepreneurship and Business Ownership

TPS holders are high entrepreneurs, creating jobs and reviving local communities.

  • Entrepreneurship Rate:
    • 14.5% of TPS holders were self-employed, compared to 9.3% of U.S.-born workers.
  • Business Income:
    • $1.5 billion in business income from 38,100 TPS entrepreneurs.
  • State Breakdown:
    • Florida: 8,200 TPS self-employed generated $608.5 million in business income.
    • California: 7,800 TPS entrepreneurs generated $224.8 million.

Community Revitalization

  • Haitian TPS holders transformed Mount Olive, North Carolina by buying abandoned homes and opening businesses.
  • Salvadoran TPS holders revived declining suburbs in the Washington, D.C. area.

Housing and Real Estate

TPS holders buy homes and pay property taxes, strengthening housing markets.

Key Facts

  • Homeownership:
    • 41% of TPS households owned homes, worth $19 billion.
  • Rental Market:
    • TPS renters contributed $1.3 billion annually.
  • Neighborhood Revitalization:
    • Immigrants often stabilize declining neighborhoods, attracting U.S.-born residents and increasing property values.

State-Level Impact

  • TPS holders have a big impact in key states, varying by state.

Top States (2021 data)

  • Florida:
    • TPS population: 65,200
    • Income: $1.6 billion
    • Spending Power: $1.2 billion
  • California:
    • TPS Population: 60,100
    • Income: $1.9 billion
    • Spending Power: $1.5 billion
  • Texas:
    • TPS Population: 55,400
    • Income: $1.5 billion
    • Spending Power: $1.2 billion
  • New York:
    • TPS Population: 29,600
    • Income: $1 billion
    • Spending Power: $743.9 million

Economic Impact of TPS Termination

Terminating TPS designations would have huge economic consequences:

  • Gross Domestic Product (GDP):
    • $45.2 billion GDP loss over 10 years if TPS designations for El Salvador, Honduras and Haiti are terminated.
  • Social Security and Medicare:
    • $6.9 billion reduction in contributions over 10 years.

Higher Prices

  • Terminating TPS would mean higher prices as industries dependent on TPS workers face labor shortages.
  • Disproportionate impact on states like Florida.  Local economies in states like Florida where TPS holders are a big part of the population would be hit harder.

Employment Breakdown for TPS Holders

Based on 2017 survey:

  • Male TPS Workers: Construction (23%), driving/delivery (13.7%), building maintenance (7.3%).
  • Female TPS Workers: Cleaning (27.9%), childcare (6.6%), food preparation (5.2%)
  • They work in industries with workforce shortages:
    • Direct care for older adults and individuals with disabilities: Immigrants are 28% of this workforce, 17% of the overall labor force.
    • Manufacturing: In Northwest Ohio, TPS workers are a third of the workforce at Jeep, Ford and Stellantis plants.
    • During the COVID-19 pandemic, 131,300 TPS holders were essential workers.

FAQs on Temporary Protected Status (TPS) and What to Expect Under a Future Trump Administration in 2025

General Information on TPS

2025 Policy Changes

What TPS Holders Can Do

Possible Scenarios

Other Questions and Scenarios

General TPS Information

Under a Trump Administration

What TPS Holders Should Do Now

Termination Scenarios

Misc

Long Term

As TPS uncertainty looms with a Trump administration in 2025, TPS holders are right to be fearful and anxious about their future. The road ahead requires proactive steps, planning and knowledge of legal rights and options.

At Herman Legal Group we know the weight of this moment for TPS holders and their families. With decades of experience, deep legal knowledge and a human touch we are here to provide clear guidance and customized solutions to protect your status and your future.

Navigating immigration law requires expertise but also empathy for the human being behind each case. We are here to be with you and fight for your rights. Don’t go through this alone—contact Herman Legal Group today to schedule a consultation and start feeling better.

MORE TPS RESOURCES

  1. Jill H. Wilson, Temporary Protected Status and Deferred Enforced Departure (Washington, DC: Congressional Research Service, updated May 28, 2024), p.6, https://sgp.fas.org/crs/homesec/RS20844.pdf.
  2. U.S. Citizenship and Immigration Services, “Form I-821, Application for Temporary Protected Status Receipts, Approvals, Denials, and Pending by Country of Designation (Fiscal Year 2024, Q2),” June 12, 2024, https://www.uscis.gov/sites/default/files/document/reports/i821_radp_fy2024_q2.xlsx.
  3. U.S. Citizenship and Immigration Services, “Policy Memorandum PM-602-0188, Rescission of Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries,” July 1, 2022, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf; U.S. Citizenship and Immigration Services, “Temporary Protected Status,” https://www.uscis.gov/humanitarian/temporary-protected-statuslast accessed June 13, 2023.
  4. U.S. Citizenship and Immigration Services (USCIS), “Temporary Protected Status,” last reviewed/updated June 20, 2024, https://www.uscis.gov/humanitarian/temporary-protected-status.
  5. Extension and Redesignation of Afghanistan for Temporary Protected Status, 88 Fed. Reg. 65728 (September 25, 2023),
  6. Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013); Velasquez v. Barr, 979 F.3d 572 (8th Cir. 2020); Ramirez v. Brown, 852 F.3d 954, 958 (9th Cir. 2017); Sanchez v. Sec. U.S. Dept. of Homeland Sec., 967 F.3d 242 (3d Cir. 2020), cert. granted sub nom. Sanchez v. Wolf, 20-315, 2021 WL 77237 (U.S. Jan. 8, 2021); Solorzano v. Mayorkas,   F.3d   , No. 19-50220, 2021 WL 365830 (5th Cir. Feb. 3, 2021); Serrano v. United States Attorney General, 655 F.3d 1260 (11th Cir. 2011).
  7. Sanchez v. Mayorkas, 593 U.S. (2021), https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf.
  8. U.S. Citizenship and Immigration Services, “Policy Memorandum PM-602-0188, Rescission of Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries,” July 1, 2022, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf.
  9. U.S. Citizenship and Immigration Services, “Deferred Enforced Departure,” last updated October 20, 2021, https://www.uscis.gov/humanitarian/deferred-enforced-departure.
  10. Congressional Research Service, Temporary Protected Status and Deferred Enforced Departure (updated April 19, 2022), https://crsreports.congress.gov/product/pdf/RS/RS20844/63.
  11. U.S. Census Bureau, 1-year 2021 American Community Survey public use microdata samples, retrieved from Integrated
    Public Use Microdata Series (updated November 30, 2022), https://usa.ipums.org/usa/index.shtml.
  12. Muzaffar Chishti and Kathleen Bush-Joseph, “In the Twilight Zone: Record Number of U.S. Immigrants Are in Limbo Statuses,” Migration Policy Institute (August 2, 2023),  https:// www.migrationpolicy.org/article/twilight-immigration-status.
  13. Congressional Research Service, Temporary Protected Status and Deferred Enforced Departure (updated July 28, 2023), https://crsreports.congress.gov/product/pdf/RS/RS20844/68.
  14. Patricia Guadalupe, “Immigrants protected in U.S. for decades face another year of uncertainty,” NBC News (December 28, 2018), https://www.nbcnews.com/news/
    latino/immigrants-protected-u-s-decades-face-another-
    year-uncertainty-n949976; U.S. Citizenship and Immigration Services, “Temporary Protected Status Designated Country: Honduras” (March 27, 2019), https://www.uscis.
    gov/humanitarian/temporary-protected-status/temporary-    protected-status-designated-country-honduras.
  15. National Immigration Forum, “Fact Sheet: Immigrants and Public Benefits” (August 21, 2018),  https://immigrationforum. org/article/fact-sheet-immigrants-and-public-
  16. Alison Siskin, “Noncitizen Eligibility for Federal Public Assistance: Policy Overview” (Congressional Research Service, December 12, 2016), https://fas.org/sgp/crs/misc/ RL33809.pdf.
  17. Immigrant Legal Resource Center, “Understanding the Criminal Bars to the Deferred Action for Childhood Arrivals” (October 26, 2012), https://www.ilrc.org/sites/default/files/  documents/ilrc-2012-daca_chart.pdf; Kristina Gasson, “Temporary Protected Status (TPS): Who Is Eligible?,” NOLO, https://www.nolo.com/legal-encyclopedia/temporary-protected-status-tps-who-is-eligible.html#:~:text=Continuous%20residence%20in%20the%20United,physical%20presence%20requirement%20apply%20here.
  18. Bureau of Labor Statistics, “Employment by Major Industry Sector” (updated September 8, 2022), https://www.bls.gov/ emp/tables/employment-by-major-industry-sector.htm.
  19. Detailed methodology of estimating the spending power and tax contribution can be found in the Appendix.
  20. Mike Charbonneau, “‘Little Haiti’ Springs Up in Wayne County Town,” WRAL News (February 15, 2012), www.wral.com/news/local/video/10736819/; Damian Paletta, “Haitian immigrants revived America’s turkey town. This Thanksgiving together might be their last,” The Washington Post (November 20, 2018), https://www.washingtonpost.com/ business/economy/haitian-immigrants-revived-americas-turkey-town-this-thanksgiving-together-might-be-their-last/2018/11/20/7cb258d0-e78f-11e8-b8dc-66cca409c180_ story.html.
  21. Carolyn Gallaher, “This region has one of the nation’s largest Salvadoran communities. A federal program puts that in jeopardy.,” Greater Greater Washington (August 23, 2017),  https://ggwash.org/view/64531/dc-has-one-of- the-nations-largest-salvadoran-communities.-a-federal- program#:~:text=Immigrants.
  22. New American Economy, “The Impact of Immigration on the Housing Market,”  https://www.newamericaneconomy.org/housingmap/.
  23. New American Economy, “How 40 Million Immigrants Create Housing Wealth and Stabilize Communities,” https://www.newamericaneconomy.org/housing/.
  24. Ibid.
  25. Michal Rubaszek and Margarita Rubio, “Does the rental housing market stabilize the economy? A micro and macro perspective,” Empirical Economics, Vol. 59, pgs. 233-257, 2020 (February 12, 2019),  https://link.springer.com/ article/10.1007/s00181-019-01638-z.
  26. Lautaro Grinspan, “Here’s Why the Fate of TPS Has Such Major Implications for DC,” Washingtonian (October 16, 2018), https://www.washingtonian.com/2018/10/16/temporary-    
    protected-status-tps-el-salvadoran-community-washington-    dc-trump-federal-judge/.
  27. Amanda Baran, Jose Magana-Salgado, and Tom K. Wong, “Economic Contributions by Salvadoran, Haitian, and Honduran TPS Holders: The Cost to Taxpayers, GDP, and Businesses of Ending TPS” (Immigrant Legal Resource Center, April 2017).
  28. Congressional Research Service, Temporary Protected Status and Deferred Enforced Departure (updated August 9, 2021), https://crsreports.congress.gov/product/pdf/RS/RS20844/62.
  29. George J. Borjas, “The Labor Supply of Undocumented Immigrants,” NBER Working Papers 22102 (National Bureau of Economic Research, Inc., 2016), https://ideas.repec.org/p/nbr/ nberwo/22102.html.
  30. Donald Kerwin and Robert Warren, “A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti” (Center for Migration Studies, 2017), https://cmsny.org/publications/jmhs- tps-elsalvador-honduras-haiti/.
  31. Congressional Research Service, Temporary Protected Status and Deferred Enforced Departure (updated April 19, 2022),https://crsreports.congress.gov/product/pdf/RS/RS20844/63.
  32. Institute on Taxation and Economic Policy, “Who Pays? A Distributional Analysis of the Tax Systems in All 50 States, 6th Edition,” (October 2018), https://itep.org/whopays/.
  33. Congressional Budget Office, “The Distribution of Household Income and Federal Taxes, 2019,” (updated November 15, 2022),   https://www.cbo.gov/publication/58353

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H4 EAD, Trump: Which Will Prevail?

The H4 EAD has been a lifeline for thousands of H1B spouses, allowing them to work in the US while their family goes through the long green card process.

The H4 visa allows spouses and children of H1B visa holders to live in the US. Over time, the Employment Authorization Document (EAD) for H4 visa holders has allowed some H4 spouses to work, contribute to the economy and support their families. This policy is particularly significant for highly skilled workers in the EB-2 and EB-3 categories, as it helps them navigate the lengthy green card process.

The H4 EAD program for spouses and children of H1B visa holders has tremendous untapped potential to address labor shortages, drive economic growth and attract global talent. Current US policies limit work eligibility for H4 spouses much more than countries like Canada. Expanding work authorization for all H4 visa holders would bring huge benefits to US economy, workforce and innovation ecosystem.

Trump’s Return

On January 20, 2025, President Donald Trump will be back as US President. With Republican controlled Congress, Trump will likely repeat what he did in his first term and try to make significant changes and possibly eliminate the H4 EAD program launched by Obama in 2015.

Trump’s second term will be all about American workers and H4 work permits are on the chopping block again.

Key Questions

  • Not If, But When: Advocates believe the debate will be on the timing and not whether or not changes, such as elimination, will happen. There are ongoing legal challenges to the H-4 EAD rule, with various lawsuits claiming it impacts job availability for American workers.
  • Sectoral Impact: Elimination of H4 work permits will impact industries where H4 spouses currently work, IT, healthcare and finance.

H1B holders and their H4 spouses are getting anxious again. The rollback of Employment Authorization Documents (EADs) for H4 visa holders will disrupt lives of H4 spouses of H1B workers who rely on this provision for employment, independence and social integration.

Trump’s First Term

We will discuss and analyze Trump’s attempts to restrict and eliminate the H4 EAD in the article below, but here are the major points for now:

  • Attempted Elimination:
    • Under the first Trump administration, DHS attempted to eliminate the H4 EAD through a proposed regulation. A second Trump administration could bring significant changes to U.S. immigration policies, including stricter immigration compliance and possible reinstatement of previous employment-related restrictions.
  • Biometric Requirements:
  • Processing Delays:
    • Lawsuits showed that simple processes that took 12 minutes under normal circumstances took over a year.
  • Intentional Barriers:
    • USCIS policies seemed to be designed to prevent H4 spouses from getting work authorization and many lost their jobs.

Here’s a detailed analysis of the program history, risks under Trump 2.0 and what H4 EAD holders and applicants can do to prepare.

What’s at Stake for Families?

For hundreds of thousands of H1B/H4 families who are waiting years (and even decades) for employer based green cards, the rollback of work permits is not just a policy change but a question of livelihood, independence and future stability.

Key Concerns

  1. Financial Dependence: Many families rely on dual incomes to manage high cost of living in the US.
  2. Career Loss: Skilled professionals will stagnate in their careers, lose years of experience and opportunities.
  3. Community Integration: Without work permits, spouses will lose access to basic tools like SSNs and driver’s licenses and will be further isolated.

What’s at Stake for US Economy?

Rolling back H4 EAD eligibility will shrink the US economy by at least $7.5 billion to $13 billion annually and more if families leave for more welcoming countries.

Keeping dual income families will lead to higher consumption, savings and investments and long term economic stability.

Economic and Social Impact of H4 EAD

Boosting US Workforce

  1. Addressing Labor Shortages:
    • Many H4 spouses are qualified for high demand STEM roles where unemployment rates are very low and job vacancies are high.
    • US can tap into this skilled workforce to address critical shortages in technology, healthcare and engineering.
    • Median salary for H4 EAD holders: $111,632/year (more than double the median US salary of $53,490).
    • Businesses should prioritize workforce planning to prepare for potential changes in U.S. immigration policy, ensuring compliance and mitigating risks associated with disruptions.

Encouraging Entrepreneurship:

  • H4 EAD holders can start businesses and create jobs for US workers.
  • 7% of H4 EAD holders are entrepreneurs and employ over 30,000 US workers, showing their potential to contribute to economic growth.

Productivity:

  • H4 spouses can work and get better job matches for their skills and increase overall economic efficiency and innovation.

Talent Retention

  • Green Card Backlogs:
    • Long wait times (10-15 years for Indian applicants) discourage H1B workers from staying in the US. H4 EAD provides financial and psychological stability and encourages families to stay.
  • Attracting Talent: Global Competitiveness:
    • Countries like Canada and Australia already allow spousal work authorization. US is less attractive without programs like H4 EAD.

Canada Is Moving In, Luring skilled migrants away from US.

  • Spouses of skilled temporary foreign workers in Canada can work for any employer in any occupation upon arrival without needing a separate EAD application.
  • Processing times are as short as 2 weeks for spousal work permits.
  • Canada has no country based green card caps so faster transition to permanent residency.
  • Global Skills Strategy ensures quick visa approvals for high-skill immigrants. Between 2016 and 2021, number of Indians becoming permanent residents in Canada increased by 115% while number of Indian students in STEM graduate programs in US decreased by 15% during the same period.

Overview of H4 EAD

For those who are not familiar with H4 EAD, first let’s understand H-1B and H-4 visas.

H1B Visa: A Gateway for Skilled Workers

H1B is a non-immigrant worker visa for professionals.

  • Purpose: Allows foreign nationals with specialized knowledge and bachelor’s degree or higher to work in US in fields like technology, engineering, healthcare and finance.
  • Salary: The salary must meet or exceed the prevailing wage as determined by Department of Labor.
  • Duration: 3 years initially and extendable up to 6 years.
  • Green Card Pathway: Many H1B workers transition to lawful permanent residency (LPR) through employer sponsorship but due to annual caps and per-country quotas, wait times can be decades for applicants from high demand countries like India and China.

H4 Visa: For Family Dependents

H4 visa is a temporary nonimmigrant visa for spouses and minor children of H visa holders, mainly H1B workers.

  • Eligibility: Issued to spouses and unmarried children (under 21) of H1B visa holders.
  • Validity: Matches the duration of H1B holder’s visa including extensions. H4 visa is tied to H1B visa holder’s status. If H1B worker loses their status (e.g., through job loss or visa expiration), their H4 dependents also have to leave US.
  • Purpose: To allow families to stay together while H1B holder works or transitions to permanent residency.

What Is H4 Work Permit?

H4 EAD was introduced in May 2015 under Obama administration. H4 EAD allows spouses of H1B visa holders to work in US, to help families maintain financial stability. This work authorization was a lifeline for many families facing green card backlogs, so spouses can:

  • Earn extra income.
  • Get Social Security Numbers (SSNs).
  • Open bank accounts.
  • Get state issued driver’s license.
  • Build careers and contribute to US industries.

The H4 EAD plays a significant role in legal immigration policies by providing employment opportunities to spouses of H1B visa holders.

Without EAD, H4 visa holders are stuck in dependent status with no way to work legally in US, restricting their financial stability and social integration.

Created Through Executive Action

Like DACA, H4 EAD program is vulnerable to elimination through new executive orders or legislation.

Eligibility for Employment Authorization (EAD)

Pursuant to the 2015 DHS ruleH4 visa holders can apply for EAD if:

  • H1B spouse has I-140 approved OR
  • H1B is extending beyond 6 years due to green card backlogs under AC21.
  • Submit I-765. H4 visa holder submits employment authorization application
  • Flexibility: Unlike H1B, H4 EAD allows unrestricted employment—H4 visa holders can work for any employer, be self employed, work as freelancer, start a business and hire employees
  • Validity: EAD is tied to H4 visa and requires renewal upon expiration.

Why H4 Work Permit Matters

H4 EAD is not just about income; it’s about independence and inclusion. Losing this authorization means:

  • Financial Instability: Many families rely on dual incomes, especially with high cost of living in US.
  • Career Delay: Skilled professionals on H4 visas, many with advanced degrees, may lose years of career momentum.
  • Integration & Social Isolation: Not being able to get SSN or driver’s license creates barriers to everyday activities like banking and commuting. Working spouses integrate more into American society, achieve higher socio-economic mobility.
  • Family Dynamics: Employment reduces dependence on H1B holder and promotes gender equality within immigrant families.

This has been a lifeline for many, especially in Indian diaspora, for H4 spouses not only to join the US workforce, but also create a dual income stream into the home, either through employment or entrepreneurship.

In short, EAD is not just about employment; it’s a lifeline for many families and a pathway for dependent H4 spouses to integrate into American society.

H4 EAD by the Numbers

H4 Visa Issuance Trends

  • H4 visa issuances have increased:
    • 1992: 24,756 visas.
    • 2019: 125,999 visas.
  • Most are issued to Indian nationals since they have high representation in H1B visas.

Characteristics of H4 Spouses

  • Highly Educated: 90% of H4 visa holders have bachelor’s degree and over 50% have graduate degree.54% have STEM degrees and are prime candidates for technology, engineering and science roles.
  • Mostly Female:90% of H4 visa holders are women. 67% are from India and 6% are from China.
  • Underutilized Workforce: Only 27% of H4 spouses with temporary visa are employed and many face barriers to get jobs due to restrictive policies. Among employed, 42% work in STEM fields, they can address talent shortages in these areas.

Characteristics of H4 EAD Holders

Educational Background of H-4 EAD Holders

  • 90% of H4 EAD holders have bachelor’s degree or higher, many in high demand industries like technology and healthcare.

H4 EAD Employment Statistics

  • 2/3 of H4 EAD holders work in computer and math occupations.
  • Major employers are Google, Microsoft, Amazon and Facebook.

H4 EAD Geographic Distribution

  • Top States: California (28,033 EAD holders), Texas (13,579), New Jersey (11,996) have the most approvals.
  • Tech Hubs: Cities like Silicon Valley, Seattle and Austin are top due to high concentration of H1B workers.

H4 ED Gender and Nationality

  • Gender: 93% of H4 EAD holders are women, same as the broader gender imbalance in family based immigration.
  • Nationality: 93% of EAD holders are Indian nationals, 5% are from China.

Number of Approved H4 EADs

  • 2015: 26,858
  • 2016: 41,526
  • 2017: 36,366

Potential Impacts of H4 EAD Rescission

Job Loss:

  • Over 90,000 H4 EAD holders will lose their jobs, 93% of them are women.

Economic Costs:

  • Businesses will face higher turnover and recruitment costs to replace skilled workers who might leave US.

Family Separation or Exodus From U.S.:

  • Financial pressure may force families to separate or leave the U.S. H1B workers may move to countries that offer better opportunities for their spouses.

H4 EAD History

“You have to know the past to understand the present.”

Carl Sagan

To know the risks and shape of future, let’s first look back to the history and evolution of H4 EAD program.

The EAD rule was implemented to address the problems faced by immigrant families stuck in green card backlogs, especially those from India.

How H4 Work Authorization Was Established?

  • May 12, 2014: DHS proposed the rule and opened it for comments.
  • February 25, 2015DHS finalized the rule after comments and minor revisions for clarity.
  • May 26, 2015Rule became effective, eligible H4 spouses can start applying for EADs.

Public Comments

  • Supporters: Economic and personal benefits, no disruption to businesses.
  • Opponents: Labor market competition and misuse.
  • Resolution: DHS kept the rule, minimal impact on overall workforce (<1%).

Purpose of the Regulation

This regulation addresses several problems faced by H1B families:

  1. Long Green Card Wait Times: As of 2023, the employment based green card backlog for Indian workers (EB-2 and EB-3 categories) is over 1 million. Without reforms, some may face 54-134 years of wait for permanent residency.
  2. Economic Impact: Highly educated spouses, many of whom work in critical sectors like healthcare and tech, contribute to US economy.
  3. Reducing Economic Hardship: Many families rely on one income during long green card wait times, financial strain. H1B families face financial strain, especially in high cost areas like California and New York.
  4. Retaining Skilled Workers: Prevents H1B workers from giving up on green card due to family financial pressure. Businesses lose H1B talent when families struggle financially.
  5. Global Standards: Brings US immigration policies in line with competing countries like Canada and Australia which allow work for immigrant spouses. Other countries with similar immigration systems grant work authorization to spouses, giving them an edge in attracting top talent.
  6. Entrepreneurship: Promotes innovation and economic growth by allowing skilled H4 spouses to contribute to the workforce.

Legal Authority for the Rule

DHS authority comes from:

  • Homeland Security Act of 2002: Gives the Secretary of Homeland Security authority over immigration laws.
  • Immigration and Nationality Act (INA): Employment eligibility for noncitizens, Section 274A(h)(3)(B).

Criticism and Challenges

While the rule has broad support, it faces opposition:

Critics argue that the H4 EAD rule takes jobs away from American workers and undermines the integrity of the immigration system. They also claim that it encourages more people to come to the U.S. illegally, hoping to benefit from similar programs in the future. Additionally, there are concerns about potential future restrictions on temporary protected status under a second Trump administration, which could impact many individuals and their employers who depend on TPS for extended work authorization.

Labor Market:

  • Critics argue H4 spouses working increases competition for US workers.

Fraud:

  • Misuse (falsified credentials or marriage fraud) was raised but largely unsubstantiated.

In 2015, the Projected Impact of the Rule

First Year Impact

  • 179,600 H4 spouses will be eligible for EADs.
  • 55,000 new applicants projected annually after first year.

Economic Benefits

For Families:

  • Two incomes reduce financial strain and better quality of life.

For Employers:

Retain skilled H1B workers and reduce turnover costs.

For the Economy:

  • Promotes entrepreneurship and innovation, especially in STEM.

Costs

  • Application fees and time spent filing are by applicants.
  • Federal processing costs are offset by fees collected.

H4 EAD Eligibility Requirements

To apply for H4 EAD you must meet both of the following:

H1B Relationship:

You must be in H4 status, which is granted to dependents (spouses or children) of H1B visa holders.

H1B Spouse’s Eligibility:

Your H1B spouse must be one of the following:

  • Approved Form I-140: Your H1B spouse is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; OR
  • H1B Extension under AC21: Your H1B spouse has been granted H1B extension beyond 6 years under AC21 because they:
    • Filed labor certification or Form I-140 at least 365 days before reaching H1B limit.
    • Are waiting for green card due to employment based green card backlogs (priority date is not current).

How to apply for H4 EAD

Step 1: Fill out Form I-765

  • Use the latest version of Form I-765 from the USCIS website.
  • Use eligibility code (c)(26) for H4 dependent spouses applying for EAD.

Step 2: Gather Required Documents

Include the following with your application:

Proof of H4 Status:

  • Current I-797 approval notice for I-539.
  • OR copy of I-94 showing current H4 admission or extension.

Identity:

  • Government issued photo ID such as:
  • Passport (biometric page).
  • Previous EAD (if any).
  • National ID card with photo.
  • Visa issued by a US consulate.

Proof of H1B Spouse:

  • Copy of marriage certificate.

Proof of H1B Spouse’s Status:

  • Copies of H1B holder’s:
  • Current and prior I-94.
  • Current and prior I-797 (for I-129).
  • Passport pages showing validity.

Eligibility: Depending on your spouse’s status:

  • For Approved Form I-140: Copy of I-140 approval notice (I-797).
  • For H1B Extension under AC21:Evidence that I-140 or labor certification was filed 365+ days before H1B limit.DOL correspondence or I-140 receipt notice showing AC21 eligibility.

Passport Style Photos:

  • 2 identical color photos, 2×2 inches, USCIS requirements.

Translations (if applicable):

  • If submitting non-English documents, include certified English translations. Translator must certify the accuracy and their ability to translate.

Step 3: Submit I-765

Choose the correct filing address based on your application type:

  • Standalone I-765: Submit to the Lockbox address on the Direct Filing Addresses for I-765 webpage. Alternatively, file online.
  • Filing with other forms:If filing with I-539 (Change/Extend H4 status) or I-129 (H1B petition for spouse), file at the service center processing I-129.

How USCIS Processes H4 EAD

Processing Time:

  • USCIS processes I-765 applications in 3-6 months, but varies.
  • Check your application status online using your receipt number.

Decision:

  • USCIS will only adjudicate H4 EAD application after confirming H4 status and H1B eligibility of your spouse.

Approval and Validity:

  • EAD validity is same as H4 status, as shown on I-94.
  • If H4 or EAD expires, you need to file for extensions to continue working.

Renewal and Automatic Extensions

Renewing H4 EAD:

  • File another I-765 no more than 180 days before current EAD expires.
  • Include updated evidence of eligibility.

Automatic EAD Extensions:

  • In some cases, you may be eligible for automatic extension of work authorization while renewal application is pending.

Bundling H4 EADS with H1B Extension Application

Edakunni v. Mayorkas.  Over 40 companies including Amazon, Google and Apple are part of a lawsuit to bundle H4 EAD applications with H1B extensions to speed up processing.

The settlement now permits bundling but a new administration can bring back similar hurdles.

Bundled Processing

  • How It Works: USCIS allows H1B, H4 and H4 EAD to be filed together, known as “bundled processing”.
  • When bundled, all applications are adjudicated at the same time. If H1B is filed under premium processing, H4 and H4 EAD will be processed faster even though standalone H4 EAD is not eligible for premium processing.

Benefits: Faster approval for H4 and H4 EAD when bundled with premium processing H1B applications. Reduced waiting time for employment authorization.

Auto-Extensions

Current Policy:

  • H4 EAD holders who file for timely renewal are eligible for automatic extensions of work authorization if their H4 status is already extended.
  • Impact:
    • This policy reduces employment gaps and provides more stability for individuals and employers.

Common Mistakes and How to Avoid Them

Incomplete Applications:

  • Make sure all sections of I-765 are filled out correctly.
  • Review your supporting evidence to avoid RFEs.

Incorrect Filing Fees:

  • Pay the exact fee amount listed for I-765. USCIS will reject incorrect payments.

Misfiling Forms:

  • Make sure I-765 is filed at the correct Lockbox or service center. Filing at the wrong address will delay or invalidate your application.

Fraud or Scams:

  • Be careful of unauthorized practitioners who offer false promises. Use only official USCIS resources or a licensed immigration attorney.

Problems with Current Policy

Barriers to Entry and Delayed Access:

  • Spouses typically wait 6+ years before they can get EAD as eligibility depends on the H1B holder’s green card application progress.
  • EAD processing time is 6-8 months which means more delays and employment gaps.

Complex Alternatives:

  • Some H4 spouses apply for their own H1B visa which requires:
  • Employer sponsorship which is expensive and uncertain.
  • H1B lottery which has less than 20% success rate due to caps on visa issuance.
  • These barriers keep many H4 visa holders out of the workforce.

The Case for Automatic H4 EAD

Instead of eliminating or restricting H4 EAD, the White House and Congress should work together to unleash the potential of H4 visa holders by:

Immediate Work Authorization for H4 Spouses:

  • Remove the requirement for H1B spouse to be in green card queue before H4 spouse can apply for EAD.
  • Grant work authorization to H4 visa holders upon arrival in US.
  • A larger talent pool makes US more competitive in the global economy.
  • Granting work eligibility could free up H1B slots for more skilled workers to come to US.

Equity/Parity with Other Visa Categories:

Spouses of L1 (intra-company transferee), E1 (treaty trader) and E3 (Australian specialty worker) visa holders are automatically eligible to work. Granting similar rights to H4 spouses aligns US policy with these precedents

Retain Talent:

Dual income families are less likely to leave US for countries like Canada and will keep top talent in the American economy

Simplify Processing:

  • Reduce EAD processing time from 6-8 months to less than 30 days.
  • Concurrent processing of H4 visa and EAD with H1B application.

Increase Public Awareness:

  • Educate employers and policymakers about the economic benefits of using H4 talent to fill talent gaps.

Trump’s Administration’s Previous Position on H4 Work Permits

During his previous presidency, Donald Trump issued the “Buy American, Hire American” executive order to protect US workers.

Trump’s Efforts at H4 EAD Rescission (2017-2021)

During his first presidency, Trump’s “Buy American, Hire American” executive order aimed to prioritize US workers for jobs.

In 2018, Department of Homeland Security (DHS) proposed a regulation titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”.

Under this policy:

  • The administration proposed to rescind H4 EAD rule citing job competition. In 2021, Biden withdrew Trump’s propsal.

Although the proposal was not finalized, it created uncertainty for thousands of families.

Timeline

Original Date Announced

December 14, 2017

DHS published a notice in the Unified Agenda of Regulatory Actions that it intends to rescind a rule making spouses of H1B visa holders who hold H4 visas eligible to work. [ID #492]

RIN: 1615-AC15: Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

April 4, 2018 USCIS reports efforts to narrow eligibility for nonimmigrant worker programs

Subsequent Trump-Era and Court Action(s)

November 1, 2018

Removing H­4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

DHS once again published in the Unified Agenda its intention to rescind the rule providing for work authorization for certain H-4 nonimmigrants.

View Document

August 26, 2020

Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization

The Unified Agenda published on August 26, 2020, noted that DHS will publish a notice of proposed rulemaking (NPRM) in September 2020 modifying the final rule published by DHS in 2015 that extended eligibility for employment authorization to certain H– 4 dependent spouses of H–1B. The new proposed rule will rescind the earlier 2015 rule, making this class of aliens ineligible for employment authorization.

View Document

Problems with H4 EAD Rule Rescission

The proposal was widely panned for its economic and social impact, especially for skilled professionals in critical sectors like healthcare, IT and education

The Trump era proposal to rescind H4 EAD faced both procedural and moral challenges:

  1. Economic Impact: Many skilled professionals, mostly women, would have been forced out of the US workforce.
  2. Family Strain: Families dependent on two incomes would have faced financial difficulties.
  3. Industry Impact: Tech, healthcare and education would have lost talent.

Expert Analysis

  • 2019 Forbes article noted the high economic and social cost of removing H4 visa holders from the workforce.

Advocates pointed out the H4 EAD promotes gender equality and financial independence for immigrant families

Why Was the Rescission Rule Withdrawn by Biden?

Biden reversed Trump’s move and kept H4 EAD. This decision:

  • Gives stability to families waiting in green card backlog.
  • Allows skilled spouses to contribute to sectors with labor shortages.
  • Eases economic disruption in immigrant communities.

Immigration experts said removing H4 work permits would disproportionately harm families already waiting for years in green card processing.

Biden issued a regulatory freeze memo on January 20, 2021 and all rulemaking was put on hold. As a result:

  • January 25, 2021: The H4 EAD Rescission Regulation was withdrawn from OMB review.
  • This fits with President Biden’s overall immigration agenda which is inclusive and immigrant workforce integration.

The Legal Challenge: Save Jobs USA vs. DHS

It was just Trump. Since its introduction, the EAD rule has been opposed by many, mainly those who claim it hurts American jobs.

From the beginning, the H4 EAD rule has been challenged in court. Save Jobs USA, an organization of U.S. born tech workers, has argued:

  • DHS has no authority to issue work permits to H4 visa holders.
  • Allowing H4 spouses to work creates unfair competition for American workers.

Timeline of the Lawsuit

  1. 2015: Save Jobs USA filed the initial lawsuit.
  2. 2017-2020: Trump administration considered rescinding the rule but did not finalize any changes.
  3. 2021: Biden administration sided with H4 EAD and Save Jobs USA filed motions for summary judgment.
  4. March 2023: US District Court ruled in favor of DHS.
  5. August 2024: US Court of Appealsaffirmed the district court’s decision.  In a big win for immigrant families and the industries that rely on them, the US Court of Appeals for the DC Circuit upheld the 2015 H4 EAD. This means the government has the authority to issue work permits to H4 spouses.

Federal Court Ruling: Highlights

US Court of Appeals for the DC Circuit, Judge Justin R. Walker wrote the opinion. Key points:

  • DHS Authority: The court cited previous cases that upheld DHS’s authority to create work authorization programs, including OPT for F-1 students.
  • Binding Precedent: The court found Save Jobs USA did not present substantial evidence to distinguish H4 EAD from similar precedents.

Support from Major Organizations

Companies and business groups filed an amicus brief in support of H4 EAD during the lawsuit. They argued:

  • Repealing H4 work authorization would slow down U.S. economic growth.
  • It would push highly skilled immigrant talent to other countries, hurt innovation and global competitiveness.

Court Decisions: The courts have upheld the EAD rule, the Department of Homeland Security has the authority to issue work permits to H4 visa holders.

Despite these decisions, advocacy groups are still challenging the policy, adding more uncertainty for affected families More importantly, the rule can still be rescinded or restricted by Trump’s incoming administration.

Biden’s H4 EAD Codification

President Biden’s U.S. Citizenship Act of 2021, announced on January 20, 2021, attempted to create a more permanent H4 EAD. Key points:

  • Codify H4 EAD into law to prevent policy changes.
  • Fix systemic issues:
    • Clear green card backlogs.
    • Recapture unused visas.
    • Reduce wait times for employment based visas.
    • Eliminate per-country visa caps.

The bill did not pass.

What Is Likely to Happen to the H-4 EAD Program by Trump in 2025?

The Trump administration previously tried to rescind H4 EAD as part of the “Buy American, Hire American” agenda. Though it didn’t happen during the first term, a second term could bring it back. Key risks:

1. Elimination Through Executive Action

  • Process: Rescinding H4 EAD through executive rulemaking would likely involve a notice-and-comment period, so implementation would be delayed by several months.
  • Impact: This would give affected families some time to find alternatives, but uncertainty would remain until the process is complete.
  • This would have huge implications:
    • Economic Impact: Families would lose income, impact spending and investment.
    • Career Disruption: Many H4 visa holders in key industries would have to leave their jobs.
    • Community Integration: Without work authorization, spouses can’t fully participate in American life.

2. Legislative

  • Republican-Controlled Congress: With Republican majorities in both chambers, changes can be made through legislation, faster to pass and harder to undo.
  • Broader Impact: Legislative changes can target not only H4 EAD but also other immigration programs like OPT or STEM visas.

3. Bundled Adjudication

  • Current Practice: USCIS allows H4 and H4 EAD to be bundled with the H-1B petition, so if premium processing is used for the H-1B, processing is faster.
  • Impact: Trump could eliminate this policy, forcing standalone processing of H4 EAD applications, which would mean longer wait times.

4. Biometrics Requirement

  • Background: Previous administrations required biometrics for H4 and H4 EAD applicants and it caused huge processing delays.
  • Impact: Requiring biometrics again could mean long wait times and employment gaps for H4 EAD holders during renewals.

5. Automatic Extensions

  • Current Practice: H4 EAD holders with timely filed applications get automatic extensions if their H4 status is valid.
  • Impact: Stopping automatic extensions would mean applicants would have to stop working while waiting for approval, affecting families and employers.

What Should H-4 Holders Due to Prepare for Trump 2.0?

Proactive planning is key to minimize the risks. Here are the steps H4 EAD holders and applicants can take to protect their status and work authorization:

1. Apply for H4 EAD Now

  • Why Now? With changes possible, apply for work authorization before new policies kick in.
  • Who Should Apply? H4 spouses who haven’t applied for H4 EAD yet. H4 EAD holders whose EAD is about to expire.

2. Renew Early

  • When to Renew: File extension within 180 days of EAD expiration.
  • Benefits of Early Renewal: Avoid employment gaps due to processing delays or new rules.

3. File Under Premium Processing

  • Why: Bundling H4 and H4 EAD with premium processing H1B petition gets faster adjudication.
  • What to Do:If your spouse’s H1B is due for renewal, file all applications together under premium processing.

4. Expedite I-140

  • Premium Processing: If the principal H1B has a pending I-140, consider upgrading to premium processing for faster approval. Talk to your spouse’s employer to request premium processing for I-140.
  • Why: I-140 approval is often required for H4 spouse to qualify for EAD.

5. Talk to Your Employer About Premium Processing

  • PERM and I-140 Filing: If your employer hasn’t filed PERM or I-140 yet, discuss filing under premium processing to make H4 EAD eligible.

6. Keep Documents

  • Stay Ready:
    • Keep all required documents (e.g. I-94, approval notices) up to date to avoid delays in application processing.
  • Be Prepared:
    • Make sure all applications are fully documented to avoid RFEs.

7. Explore Other Work Authorization Options

  • If H4 EAD is eliminated, explore other visa categories or work authorization pathways like O-1, H1B, E-2, TN, EB-5. Talk with an immigration attorney to explore other options,

8. Talk to Immigration Attorneys

  • Find immigration law experts that you trust to keep you advised on the latest developments and innovative workarounds. Talk to your own immigration attorney or your employer’s legal team to plan for different scenarios.

9. Build Financial Cushion

  • Plan now to minimize financial impact of EAD revocation.

10. Employment Gaps

  • If you’re using H4 EAD for work, plan for employment gaps due to policy changes or processing delays.

11. Communicate with Employer

  • If you’re working on H4 EAD, keep your employer informed about your immigration status and potential changes to avoid confusion.

12. Stay Informed

  • Follow Policy Updates: Monitor USCIS, advocacy group and legal expert news to stay ahead of changes.

Join Advocacy Groups

  • Organizations like Immigration Voice support H4 EAD holders. Join them for support and resources. Contribute your voice and perspective.

Challenges for H4 EAD Holders

Even if H4 EAD program isn’t eliminated completely, other changes could affect work authorization:

  • Longer Processing Times: Standalone applications without premium processing could take months.
  • Employment Gaps: Without auto-extensions, renewal applicants would have to stop working while applications are pending.
  • More Stringent: Applicants may face more documentation requirements and higher denial rates under new rules.

A Tough Road Ahead

H4 work permits are uncertain with Trump’s return and policy rollbacks. For many H1/H4 families, EAD is not just about jobs, it’s about independence, dignity and ability to contribute to American dream.

Background on 2015 DHS Rule that created H-4 EAD

For those interested in the rationale of the 2015 H-4 EAD Rule should read the Rule published in the Federal Register. The summary of the Rule follows and will provide additional evidence and support for those looking to support the program in 2025 and beyond.

H-4 EAD Overview

The Department of Homeland Security (DHS) created a rule to allow H-4 visa holders—spouses of H-1B visa holders—to work in the US to alleviate hardships and support US businesses by keeping highly skilled foreign workers. Here is a summary of the current framework, eligibility, public comments and the final rule.

H-4 Visa: Supporting H-1B Families

  • Eligibility: Issued to spouses and unmarried children (under 21) of H-1B visa holders.
  • Duration: Same as the primary H-1B visa holder’s stay.
  • Work Authorization: Previously H-4 visa holders could not work in the US, causing financial and personal hardships for many families.

Background: Green Card Backlog

H-1B Families Challenges

Long Wait Times:

  • Employment based (EB) immigrant visas especially for individuals from oversubscribed countries like India and China have long backlogs—often decades.
  • H-1B workers cannot file for adjustment of status unless their priority date is current.

Economic and Emotional Strain:

  • Single income households struggle financially while waiting for green card approval.
  • Dependents face isolation and lack of integration opportunities due to work restrictions.

Impact on US Employers

  • Workforce Disruptions:
    • Skilled workers may leave the US due to green card delays and businesses have to find replacements.

Legislative Relief:

  • To address this issue Congress passed provisions under AC21 to allow H-1B extensions beyond 6 years and to reduce disruption to employers.

DHS’s Rule for H-4 Work Authorization

Proposed Rule (2014)

May 12, 2014

DHS proposed to amend the regulations to allow certain H-4 dependent spouses to apply for employment authorization if the H-1B visa holder:

  1. Is the principal beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker), or
  2. Has extended H-1B status under AC21 due to pending or approved employment based immigration petitions.

Key Changes in the Rule

  • Eligibility: Added H-4 spouses to the list of individuals who can file Form I-765 (Application for Employment Authorization).
  • Documentation Requirements: Listed the supporting evidence H-4 spouses need to submit to establish eligibility.

Public Comments on the Proposed Rule

During the 60 day comment period, DHS received almost 13,000 comments. Here are the comments:

Supportive Comments (85%)

Economic Benefits:

  • Dual income households lead to more disposable income, tax revenue and community contributions.
  • H-4 spouses joining the workforce will strengthen US innovation and economic growth.

Social Impact:

  • Reduces isolation, financial dependence and empowers women, reduces domestic stressors and mental health challenges.
  • Promotes family stability and integration into US communities.

Competitiveness:

  • US immigration policies should be aligned with other countries that offer work rights to dependents.
  • Helps retain highly skilled H-1B workers, reduces workforce disruption to employers.

Opposing Comments (10%)

  • Labor Market Concerns:Some feared competition to US workers and potential downward pressure on wages.
  • Others questioned DHS’s authority to grant employment authorization to H-4 dependents.

Mixed Comments (3.5%)

Eligibility Scope:

  • Some commented that the rule was too narrow and excluded dependents of other visa categories.
  • Others felt it was too broad and would invite misuse or fraud.

Final Rule

After comments, DHS finalized the rule with minor tweaks to clarify and address filing issues.

Eligibility Clarifications

H-4 spouses can file for employment authorization if:

  • The H-1B visa holder is the principal beneficiary of an approved Form I-140, or
  • The H-1B visa holder has extended status under Section 104(c) of AC21.

Filing Process Changes

  • Allowed to file Form I-765 with Form I-539 (Application to Extend/Change Nonimmigrant Status) for expedited processing.

Projected Numbers

  • Year 1: 179,600 H-4 spouses eligible to apply.
  • Annual growth: 55,000 new applicants per year.

H-4 Work Authorization Benefits

For Families

  • Dual income, less financial stress.
  • Integration into US society, long term stability.

For Employers

  • Retain H-1B workers during green card processing, reduced turnover costs.
  • Helps businesses in key STEM fields.

For the Economy

  • Adds skilled workers to the workforce, innovation and productivity.
  • Consumer spending and homeownership, local economies.

Background and Public Comments

1. H-4 Dependents of H-1B1, H-2, H-3 Nonimmigrants

Public Comments

  • Over 200 commenters suggested to extend employment authorization to H-4 dependents of non-H-1B visa holders, including:
    • H-1B1: Specialty workers from Chile and Singapore.
    • H-2A: Temporary agricultural workers.H-2B: Temporary non-agricultural workers.
    • H-3: Trainees.
  • Reason: Expanding eligibility would make US more competitive by bringing in more skilled workers and economic contributions from a larger pool of dependents.

DHS Response

  • Current Limitations:
    • H-1B visa holders have “dual intent” and can pursue LPR without losing nonimmigrant status. This is not available to H-1B1, H-2 or H-3 visa holders.
    • Congress, through AC21, specifically allowed H-1B visa holders to extend their stay during green card processing, which is not applicable to other H categories.
  • Future Options:
    • DHS recognized the idea has merit but wants to address these issues step by step. Expanding eligibility might be considered in future rulemaking.

2. All H-4 Dependents of H-1B Visa Holders

Public Comments

  • Over 150 commenters asked DHS to grant employment authorization to ALL H-4 dependents of H-1B visa holders, not just those whose spouses are on a green card path.
  • Reason:
  • The rule should be consistent with other visa categories like L-1, E-1, E-2 and E-3 where all dependent spouses are eligible for employment authorization.

DHS Response

Legal Barriers:

  • Congress explicitly allowed employment authorization for dependents of L-1, E-1, E-2 and E-3 visa holders but not H-1B dependents. DHS’s regulatory authority does not permit to extend the same to all H-4 dependents.Policy Focus:
  • DHS focused on dependent spouses of H-1B visa holders who are actively pursuing LPR status to address green card delays while staying aligned with AC21.

3. Employment Authorization “Incident to Status”

Public Comments

  • Over 60 commenters asked for automatic employment authorization upon H-4 approval, eliminating the need to file Form I-765.
  • Reason:
    • Streamlining would reduce administrative burden and allow dependents to start working immediately.

DHS Response

Administrative Barriers:

  • Automatic employment authorization requires USCIS systems to verify eligibility independently. Current systems cannot verify spousal relationships or green card progress without manual adjudication.
  • Accuracy:
    • Filing Form I-765 ensures only eligible applicants get employment authorization, minimizing errors or unauthorized work.

4. Timing of Employment Authorization

Public Comments

  • Some commenters asked for employment authorization EARLIER in the green card process, such as:When a PERM labor certification is filed.When a Form I-140 petition is pending.

DHS Response

Approval-Based:

  • Employment authorization tied to approved Form I-140 petition ensures applicants are on the LPR path, reduces frivolous filings.
  • Allowing based on pending applications could result in ineligible individuals getting benefits if the applications are denied.
  • Policy Balance:
    • Limiting to approved cases is consistent with DHS’s goal of promoting compliance with U.S. immigration laws and efficient resource management.

5. H-4 Dependent Minors

Public Comments

  • Less than 40 commenters asked for employment authorization for H-4 dependent minors citing:
  • Lack of work experience.
  • Financial burden of post-secondary education.
  • Risk of aging out of H-4 status before green card eligibility.

DHS Response

  • Consistency Across Categories:
    • Employment authorization is limited to dependent spouses in other visa categories (e.g., L and E visas). Extending to minors would create inconsistencies.
  • Focus on Spouses:
    • DHS focused on addressing family economic burdens through spousal work authorization which indirectly supports dependent minors.
  • DACA Comparison:
    • The Deferred Action for Childhood Arrivals (DACA) program is for a different context and does not provide a basis to extend employment to H-4 minors.

Final Rule and Policy Priorities

Key Points

Employment authorization is for H-4 dependent spouses of H-1B visa holders who:

  1. Have an approved Form I-140.
  2. Have extended H-1B status under AC21.
  • Not for:
    • H-4 dependents of other H visa categories.
    • H-4 minors.
    • H-4 spouses at earlier stages of the green card process.

Policy Reasoning

  • Targeted Impact:
    • Focused on H-1B spouses addresses the biggest economic and personal burdens.
    • Incremental

DHS will consider further expansion but wants to take it slow and administratively feasible.

Requests for Expansion

1. Employment Authorization for H-1B Nonimmigrants

  • Public Comments:
    • Some commenters asked that H-1B visa holders get EADs to work for any employer, no employer specific restriction.
    • Some suggested a single EAD for households with dual H-1B spouses to avoid having one spouse to switch to H-4 status.
  • DHS Response:
    • H-1B employment authorization is incompatible with the visa’s employer specific nature.
    • Allowing EADs for H-1B workers would violate the terms of the H-1B classification which ties work authorization to a specific petitioning employer.
    • Dual H-1B households can use existing options but an H-1B holder must change to H-4 status to be eligible for an EAD as a dependent.

2. H-4 Dependents not selected in the H-1B lottery

  • Public Comments:
    • Less than 20 commenters asked for employment eligibility for H-4 dependents whose H-1B petitions were not selected in the lottery.
  • DHS Response:
    • This rule is to retain H-1B workers already pursuing lawful permanent residency (LPR) and not to address broader issues in the H-1B program.

3. Dependents of other nonimmigrant categories

  • Public Comments:
    • Some asked for dependents of O-1 (extraordinary ability) and TN (NAFTA professionals) visa holders to be eligible for employment.
  • DHS Response:
    • There are significant differences between these categories and H-1B classification:
      • O-1 and TN Visa Context: These categories have fewer visa backlogs and faster LPR processing for dependents.
      • Foreign Policy Considerations: TN visas are governed by international trade agreements like NAFTA which are outside the scope of this rule.

Opposition to the H-4 EAD Rule

1. Displacement of U.S. Workers

  • Comments:
    • Some thought the rule would increase competition for jobs, unemployment and lower wages.
  • DHS Analysis:
    • The rule is targeted, affects a small population (0.1156% of the U.S. civilian labor force).
    • High skilled immigration including H-4 dependent employment benefits the U.S. economy in the long run through innovation, consumption and job creation.
    • Existing anti-discrimination laws protect U.S. workers from being unfairly displaced by nonimmigrant labor.

2. Not Necessary

  • Comments:
    • Some argued existing immigration laws already allow H-4 dependents to change to employment authorized categories so the rule is redundant.
  • DHS Analysis:
    • The rule addresses gaps that prevent H-1B visa holders from remaining in the U.S. because their spouses can’t work.
    • DHS quoted many H-1B families and employers that the rule is necessary to retain workers and prevent families from leaving the U.S.

3. Impact on other immigration categories

  • Comments:
    • F-1 student graduates and other nonimmigrants felt the rule was unfair as they have more stringent paths to employment than H-4 dependents.
  • DHS Response:
    • The rule is targeted to address the specific challenges faced by H-4 dependents of H-1B workers including long green card backlogs.

4. Impact on Universities

  • Comments:
    • Universities worried about decline in enrollment if H-4 dependents choose to work over education.
  • DHS Response:
    • The rule gives more choices to H-4 dependents but does not take away their ability to pursue education.

The net effect on university enrollment is unknown, some say increased family income will lead to more educational spending.

Requests for more restrictive policies

1. Limit eligibility by skills or sectors

  • Public Comments:
    • Some asked to limit eligibility to H-4 dependents with advanced degrees, STEM qualifications or specific skillsets.
  • DHS Response:
    • The rule is to support U.S. businesses and retain H-1B workers regardless of the academic or professional background of their spouses.

2. Reciprocal employment policies

  • Public Comments:
    • Some suggested to grant employment authorization only to dependents from countries that offer similar rights to U.S. citizens abroad.
  • DHS Response:
    • The rule is to retain skilled workers for U.S. economic benefit and does not consider foreign reciprocity agreements which are foreign policy issues outside the scope of this rule.

3. Limit eligibility to AC21 extensions

  • Public Comments:
    • Some suggested to limit eligibility to spouses of H-1B workers who are benefiting from AC21 extensions.
  • DHS Response:
    • Including spouses of H-1B workers with approved Form I-140 petitions supports broader goals of retaining workers and minimizing disruption to U.S. employers.

Legal authority for the rule

  • Challenges:
    • Some argued DHS doesn’t have the authority to grant employment eligibility to H-4 dependents as Congress explicitly gave similar rights to L and E visa dependents.
  • DHS justification:
    • The Immigration and Nationality Act (INA) gives the Secretary of Homeland Security broad authority to determine the conditions of nonimmigrant admissions including employment authorization.
    • Precedents show the Executive Branch has the authority to grant work eligibility by regulation without congressional approval.

Economic and labor market impacts

  • Positive outcomes:
    • DHS expects minimal disruption to the labor market as the number of eligible participants is small.
  • Benefits:
    • Increased household income for H-1B families.
    • More economic contributions through consumer spending, real estate investments and tax revenue.
    • Family unification and better integration into U.S. communities were mentioned by commenters.
  • Displacement concerns:
    • DHS found no evidence that the rule would harm native born workers or highly skilled H-1B visa holders.

Responses to comments on volume estimates and methodology

Comments on DHS’s estimates

  • Opposing comments:
    • Many commenters argued that DHS underestimated the number of H-4 spouses eligible for employment authorization.
  • Alternate methodology:
    • A commenter cited the Yearbook of Immigration Statistics and suggested using historical averages of spouses adjusting to Lawful Permanent Resident (LPR) status to estimate the volume of H-4 spouses.

DHS Response:

  • Limitations of the suggested approach:
    • The historical average doesn’t account for current H-1B nonimmigrants waiting for visas or distinguish between H-4 and other statuses.
    • Not all H-1B spouses are in H-4 status so these calculations are less precise.
  • Refined methodology:
    • DHS used current data, considering the backlog of H-1B workers with approved I-140 petitions waiting for immigrant visas and the new flow of H-4 spouses becoming eligible.
    • This approach captures the population more accurately.

Final estimate:

  • Updated numbers:
    • DHS revised its estimates to up to 179,600 H-4 spouses in the first year.
    • This is a tiny fraction of the U.S. workforce (0.1156%) and doesn’t disrupt the labor market.

Costs and benefits

Comments on economic calculations:

  1. Cost concerns:
    • One commenter thought DHS overestimated costs by including opportunity costs (time H-4 spouses spend applying).
  2. Benefits undervalued:
    • Another commenter felt the rule didn’t account for economic and social benefits, including losses under current rule where H-4 spouses can’t work.

DHS’s position:

  • Costs:
    • Opportunity costs were calculated using minimum wage as a proxy for time value, which is a reasonable assumption.
    • Even if H-4 spouses aren’t working, they face opportunity costs in deciding how to use their time.
  • Benefits:
    • The rule increases household income, social integration and reduces economic burden on H-1B families.
    • It also helps U.S. employers by reducing H-1B workers abandoning the LPR process.

Improving the application process

1. Simplified filing process

  • Comments:
    • Commenters asked for streamlined or electronic filing options for Form I-765 (Employment Authorization Application).
  • DHS Response:
    • USCIS ELIS System:
      • DHS is moving to an electronic system that will have real-time updates and notifications for all benefit programs including H-4 employment authorization.
      • Paper filing until May 26, 2015 to avoid H-1B cap season overlap.

Employment Authorization Document (EAD) validity periods

Comments:

  1. Match EAD to H-4 admission period:
    • 9 commenters asked to align EAD with H-4 spouse’s authorized stay (up to 3 years).
  2. Shorter probationary EADs:
    • 1 commenter suggested 6 or 12 month EADs with proof of lawful work and tax payments.

DHS Response:

  • Aligned validity periods:
    • Will issue EADs matching H-4 dependent’s authorized stay to avoid gaps in authorization and reduce renewal frequency.
  • Probationary EADs:
    • Denied due to:
      • No evidence of fraud or tax evasion among H-4 dependents.
      • Administrative burdens from frequent renewals and potential gaps in employment authorization.

EAD renewals

Comments:

  • 5 commenters asked to renew up to 6 months in advance to align with H-1B extension filing timeline.

DHS Response:

  • Will allow concurrent filing of Form I-765 (EAD application with:
    • Form I-539 (H-4 extension/change of status).
    • Form I-129 (H-1B employer petition).
    • USCIS will process Form I-765 after related petitions are adjudicated.

Documentation requirements

Comments:

  • Commenters asked for clearer guidance on acceptable evidence for Form I-765 and how to get the required documents.

DHS Updates:

  1. More guidance:
    • Revised Form I-765 and instructions to make it clearer.
    • Added checkbox for H-4 dependents to simplify processing.
  2. Flexibility in documentation:
    • Acceptable secondary evidence (e.g. affidavits) if primary evidence (e.g. original petitions) is not available.
    • Applicants can also request documents from USCIS through FOIA.

Public concerns about volume, cost and integration

Integration and workforce concerns:

  • DHS said the rule allows labor market entry for a small group and is in compliance with immigration laws.
  • Expected outcomes:
    • Financial stability for H-1B families.
    • More income for local economies through employment.
    • Less labor disruption for U.S. businesses that rely on H-1B workers.

Concurrent filings for employment authorization

What was asked:

  • Commenters asked DHS to allow Form I-765 (Employment Authorization Application) to be filed with:
  • Form I-140 (Immigrant Petition for Alien Worker).
  • Form I-539 (Application to Extend/Change Nonimmigrant Status).

DHS Response:

  • Allowed: Form I-765 with Form I-539 and if applicable, Form I-129 (H-1B Petition).
  • Not allowed: Form I-765 with Form I-140.

Why Form I-765 can’t be filed with Form I-140:

  • Different processing centers: Form I-140 and Form I-765 are processed at different USCIS locations.
  • Separate eligibility processes: Determining the spousal relationship (required for H-4 eligibility) is not required for Form I-140 adjudication and complicates joint processing.

Premium Processing

What was asked:

  • Premium processing for Form I-765 applications to speed up processing.

DHS Response:

  • Denied:
    • Operational challenges prevent us from meeting premium processing times for Form I-765.
    • Premium processing is typically for employment petitions like H-1B, L-1 or E categories and select immigrant visa petitions.

Automatic extensions of work authorization

What was asked:

  • Automatic 240-day extensions of work authorization after the current EAD expires.

DHS Response:

  • Denied:
    • Automatic extensions could allow H-4 spouses to work if their underlying H-4 or H-1B status extensions are denied.
  • Recommendation:
    • File all necessary forms (I-539, I-129, I-765) on time to avoid gaps in work authorization.

Filing fees

Key comments:

  • Commenters mentioned fees:
    • Some asked for fees to be waived for H-4 dependent spouses.
    • Some said fees would generate revenue for USCIS.

DHS Response:

  • No Fee Waivers:
    • H-4 dependent spouses are married to employed H-1B workers so it’s unlikely they can’t pay the application fees.
    • Fee waivers are available on a case-by-case basis as per 8 CFR 103.7(c)(3)(viii).

EAD restrictions for H-4 dependent spouses

Proposed restrictions:

  • Caps on the number of EADs issued.
  • Prohibit working in the same occupation or with the same employer as the H-1B spouse.
  • Restrictions on specific employers or industries.

DHS Response:

  • Denied All:
    • The purpose of the rule is to retain highly skilled H-1B workers and their families by giving flexibility to H-4 spouses.
    • Quotas, limits or restrictions would defeat this purpose.

Circular EADs

Issue:

  • A commenter asked what would happen if spouses switch between H-1B and H-4 status to maintain EAD eligibility.

DHS Response:

  • Not likely:
    • Switching status would not help avoid the waiting period for LPR.
    • LPR offers many advantages (e.g. unrestricted work, U.S. citizenship eligibility) over status changes.

Fraud and Public Safety Concerns

Key issues:

  1. Resume or Credential Fraud:
    • Commenters worried H-4 spouses would fake credentials.
  2. Marriage Fraud:
    • Concerns about marriages to get employment benefits.
  3. Criminal Records:
    • Request to exclude applicants with felony charges or convictions.

DHS Safeguards:

  • Resume Fraud: Employers verify applicant credentials not DHS.
  • Marriage Fraud: H-4 spouses must submit proof of marriage to the H-1B worker. Fraud detection measures include USCIS officer training and referrals for criminal investigations.
  • Criminal Records: DHS will review on a case-by-case basis and deny if adverse findings.

Other Decisions

EAD validity:

  • EAD will match H-4 spouse’s authorized stay (up to 3 years) so no need for frequent renewals.

EAD renewals:

  • Renewal forms (I-765, I-539, I-129) can be filed up to 6 months in advance to avoid gaps in employment.

Simplified filing process:

  • I-765 instructions clarified to include acceptable evidence for spousal relationship and status.
  • Secondary evidence or affidavits allowed when primary evidence is not available.

No changes to H-1B program:

  • Comments to eliminate or modify H-1B cap, flexible filing dates or exempt H-4 spouses from H-1B cap were outside the scope of this rulemaking and need congressional action.

Immigrant Visa Processing and Adjustment of Status

Public Comments:

  • Over 30 commenters said:
    • Eliminate worldwide visa quotas to reduce backlogs.
    • Allow pre-registration of AOS applications even if visas are not available.
    • Expedite for EB-2 and EB-3 categories.
    • Issue one skilled worker visa per family unit instead of separate visas for family members.

DHS Response:

  • These are outside the scope of this rulemaking as they would require changes to the immigration laws which can only be done by Congress.

H-1B Nonimmigrants and H-4 Dependent Status

Key points:

  • H-1B status changes for H-4 spouse:
    • H-4 dependent spouse’s employment authorization is dependent on the H-1B worker maintaining status.
    • If the H-1B nonimmigrant loses status due to job loss or failure to extend status, the dependent spouse will also lose H-4 status and employment eligibility.

Environmental Considerations

Comments:

  • 9 commenters raised concerns about population growth due to increased work authorizations.

DHS Analysis:

  • Most of the people affected by this rule are already in the U.S. waiting for immigrant visas. This rule just speeds up their entry into the labor market and will not have significant environmental impacts.

Monitoring and Reporting

Public Comments:

  • Some commenters asked DHS to:
    • Track EAD adjudications for H-4 spouses.
    • Publish annual reports on this rule.

DHS Response:

  • DHS will keep records of all immigration benefits and will include H-4 EAD in the existing annual reporting.

Rule Effective Date

Public Comments:

  • Many commenters wanted the rule to be effective immediately. Some wanted a sunset provision to review after a certain period of time.

DHS Decision:

  • Effective 90 days from publication (May 26, 2015).
  • A sunset provision was not practical as it would create unequal employment authorization validity periods.

Regulatory Impact Analysis

Key Points:

  • Unfunded Mandates Reform Act of 1995:
    • This rule will not impose unfunded mandates on state, local or tribal governments or private sectors over $155 million annually (adjusted for inflation).
  • Small Business Regulatory Fairness Act of 1996:
    • This rule will not cause economic disruption, increase cost or price or negatively impact competition or productivity.

Population Impact and Volume Estimates

Current Backlog:

DHS estimates:

  • 179,600 H-4 dependent spouses will be eligible to apply for employment authorization in the first year.

New Eligibility per Year:

  • 55,000 H-4 spouses.

Methodology:

  • Data includes:
    • Approved I-140s (employment-based immigrant petitions).
    • H-1B extensions granted under AC21.

Key Assumptions:

  • Historical H-1B data shows most applicants in these categories will adjust status in the U.S.
  • Upper-bound estimate accounts for marital status and visa processing conditions.

Applicant Costs

Costs:

  • Each applicant will pay:
    • $380 I-765 filing fee.
    • $56.18 for passport-style photos and time-related expenses.
    • Total cost per applicant: $436.18.

Long-term Cost Projections:

  • Year 1:
    • 179,600 applicants: $78.3 million.
  • Subsequent years:
    • 55,000 applicants: $24 million.
    • 10 years: $219 million – $257 million (depending on discount rate).

Broader Economic and Social Benefits

Benefits:

  • Financial independence for H-4 spouses.
  • H-1B family integration into U.S. communities.

Retention of high-skilled talent for economic growth, innovation and competitiveness.

Costs related to H-4 EAD

1. Applicant Costs

H-4 dependent spouses applying for employment authorization will incur the following costs:

  • Filing Fees:
    • The I-765 filing fee for an H-4 EAD is $410 (up from $380 as USCIS increased fees recently).
    • Two passport-style photos: $20.
  • Time Costs:
    • Filing I-765 takes approximately 3 hours and 25 minutes (DHS estimate).
  • Opportunity Cost of Time:
    • DHS uses the federal minimum wage of $7.25 per hour. Adjusted for benefits (paid leave, insurance, retirement) to $10.59 per hour.
    • Opportunity cost per applicant: $36.18.
  • Total Costs per Application:
    • Fees + photos + opportunity cost = $466.18.

2. Total Costs

  • Year 1:
    • 179,600 applicants: $83.7 million.
  • Subsequent years:
    • 55,000 applicants: $25.6 million.

3. Renewals

  • Renewals will cost the same: $466.18 per application. But the number of renewals will depend on the availability of employment-based green cards which varies by preference category and country of origin.

Cost to the Federal Government

  • Fee-Based Funding:
    • USCIS fees are designed to fully recover costs of adjudication, including overhead.
    • So there is no additional cost to the federal government from the H-4 EAD program.

Economic and Geographic Impacts

1. U.S. Labor Market

  • Labor Force Entry:
    • 179,600 in year 1. 55,000 in subsequent years.
    • That’s 0.1156% of the total U.S. civilian labor force (2013 data: 155.4 million).
  • Top States:
    • States with the most H-1B visa holders (California, New York, Florida, Texas, New Jersey) will be most impacted.
  • Projected first-year workforce additions:
    • California: 35,920 (0.19% of state labor force).
    • New York: 25,144.
    • Florida: 17,960.
    • Texas: 16,164.
    • New Jersey: 8,980.

2. Wider Impacts

  • The program doesn’t introduce new workers into the U.S. economy but accelerates their entry into the labor market. This may help retain high-skilled workers by keeping families in the U.S. instead of leaving due to long green card waits.

Benefits of H-4 EAD

1. Economic Benefits

  • Financial Relief for Families:
    • Allowing spouses to work reduces financial burden on H-1B families and makes it easier to manage the cost of living in the U.S.
  • Talent Retention:
    • By supporting H-1B families, H-4 EAD helps retain high-skilled professionals in the U.S., technology, research and entrepreneurship.
  • Global Standards:
    • The U.S. is joining Canada and Australia which allow spousal work permits for temporary visa holders, making it more competitive in attracting global talent.

2. Social Benefits

  • Integration into American Society:
    • Employment opportunities lead to socio-economic advancement which correlates with better cultural integration for immigrant families.

Regulatory Impacts

1. Alternatives Considered

DHS considered several options before finalizing the H-4 EAD program:

  • Broad Eligibility for All H-4 Spouses:
    • Rejected because it would allow work authorization for spouses of H-1B holders not pursuing green cards, watering down the program.
  • Limited Eligibility:
    • Considered restricting eligibility to only H-4 spouses of H-1B holders with extensions under AC21 (H-1B extensions beyond the 6-year limit). But that was deemed too narrow and not enough to address the green card backlog.

2. Final Eligibility Criteria

  • Work authorization is available to H-4 spouses of H-1B holders who:
    • Have approved I-140 petitions, or
    • Have H-1B extensions under AC21.

3. Regulatory Changes

  • Update to Form I-765:
    • The form now has a checkbox for H-4 dependent spouses, making it easier to process and reducing errors.
  • Concurrent Filing:
    • Eligible applicants can file Form I-765 with Form I-539 (H-4 status changes), faster adjudication.

1. Public Comments

  • Over 180 comments raised issues like:
    • Filing and renewal process.
    • Premium processing for Form I-765.
    • Fraud and documentation requirements.

2. DHS Response

  • Premium processing is not available for H-4 EAD due to resource constraints.
  • Applicants do not need to demonstrate financial necessity.

Projected Outcomes and Long-Term Impact

  • Green Card Pursuits:
    • By relaxing work restrictions, H-4 EAD encourages families to stay in the U.S. while waiting for green cards.
  • Talent Retention:
    • So workers don’t abandon the process.
    • The rule: over posting

The Rule

Accordingly, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 110111021103118211841186a11871221128112821301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 18068 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(9)(iv) to read as follows:

§ 214.2

Special requirements for admission, extension, and maintenance of status.

(iv) H-4 dependents. The spouse and children of an H nonimmigrant, if they are accompanying or following to join such H nonimmigrant in the United States, may be admitted, if otherwise admissible, as H-4 nonimmigrants for the same period of admission or extension as the principal spouse or parent.

H-4 nonimmigrant status does not confer eligibility for employment authorization incident to status. An H-4 nonimmigrant spouse of an H-1B nonimmigrant may be eligible for employment authorization only if the H-1B nonimmigrant is the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or the H-1B nonimmigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (2002).

To request employment authorization, an eligible H-4 nonimmigrant spouse must file an Application for Employment Authorization, or a successor form, in accordance with 8 CFR 274a.13 and the form instructions. If such Application for Employment Authorization is filed concurrently with another related benefit request(s), in accordance with and as permitted by form instructions, the 90-day period described in 8 CFR 274.13(d) will commence on the latest date that a concurrently filed related benefit request is approved.

An Application for Employment Authorization must be accompanied by documentary evidence establishing eligibility, including evidence of the spousal relationship and that the principal H-1B is the beneficiary of an approved Immigrant Petition for Alien Worker or has been provided H-1B status under sections 106(a) and (b) of AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act, the H-1B beneficiary is currently in H-1B status, and the H-4 nonimmigrant spouse is currently in H-4 status.

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

3. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 110111031324a; Title VII of Public Law 110-22948 U.S.C. 18068 CFR part 2.

4. Section 274a.12 is amended by adding a new paragraph (c)(26), to read as follows:

§ 274a.12

Classes of aliens authorized to accept employment.

*

(c) *

(26) An H-4 nonimmigrant spouse of an H-1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).

*

5. Section 274a.13 is amended by revising the first sentence of paragraph (d), to read as follows:

§ 274a.13

Application for employment authorization.

*

(d) Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application, except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) and 245.15(n). *

*

Jeh Charles Johnson, Secretary.

Background on Save Jobs USA Litigation

Regardless of what Trump does in 2025 on the H-4 EAD, there will likely be extensive litigation in federal courts. Becoming familiar with the history of the litigation will be helpful in understanding how future litigation may play out.

D.C. Circuit Affirms District Court’s Grant of Summary Judgment to DHS in Save Jobs USA v. DHS H-4 EAD Litigation

8/2/24  AILA Doc. No. 15052675. Business ImmigrationH-1B & H-1B1 Specialty Occupation

August 2, 2024

The D.C. Circuit affirmed the district court’s decision awarding summary judgment to DHS, holding that Save Jobs USA had not meaningfully distinguished the case from binding precedent in Washington Alliance of Technology Workers v. DHS, in which the court held that the 2016 STEM Optional Practical Training (OPT) regulations were within DHS’s statutory authority to set the time and conditions of F-1 admission. The court reasoned that its recent decision in WashTech interpreted the INA to authorize immigration-related employment rules like the H-4 EAD rule, and that Save Jobs USA had made little effort to dispute that reading of WashTech. (Save Jobs USA v. DHS, et al., 8/2/24)

February 8, 2024

After SCOTUS denied cert. in Save Jobs USA v. DHS, et al., the plaintiffs appealed to the DC circuit court. AILA and AIC filed an amicus brief urging the circuit court to affirm the district court decision granting summary judgment.

The amici brief counters appellant’s argument that DHS does not have the authority to permit certain H-4 spouses to work by providing a detailed explanation of the shared congressional and executive responsibility in the INA that the executive followed for almost 35 years in authorizing work for certain categories of noncitizens and its subsequent ratification in 1986 when Congress explained that a noncitizen was “unauthorized” for purposes of the new employment verification provisions if not “authorized to be so employed by this Act or by the Attorney General.” 8 U.S.C. § 1324a(h)(3)(B).

October 30, 2023

The U.S. Supreme Court denied the petition for a writ of certiorari before judgment, leaving in place the March 2023 ruling from the U.S. District Court for the District of Columbia granting summary judgment in favor of DHS. Justice Kavanaugh took no part in the consideration or decision of the petition. (Save Jobs USA v. DHS, et al., 10/30/23)

March 28, 2023

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia granted DHS’s motion for summary judgment, concluding that DHS possessed the requisite statutory authority to issue the H-4 EAD rule, and that the plaintiff had failed to demonstrate that the H-4 EAD rule was arbitrary and capricious. (Save Jobs USA v. DHS, et al., 3/28/23)

April 2, 2021

On April 2, 2021, Save Jobs USA filed its second renewed motion for summary judgment in the U.S. District Court for the District of Columbia. The updated court schedule is provided below:

May 3 – Defendant’s combined opposition and cross-motion
May 17 – Intervenor’s combined opposition and cross-motion
May 31 – Plaintiff’s combined oppositions and replies
June 14 – Defendant’s reply
June 28 – Intervenor’s reply

February 2, 2021

In light of recent executive and administrative actions, on February 2, 2021, Judge Chutkan ordered a joint status report due by March 5, 2021, advising the court: 1) whether the current dispute has been mooted or the parties anticipate that it will be mooted; 2) whether the parties wish to stay this action for any reason, including the parties’ negotiations over resolving this dispute; or 3) whether the parties agree that this litigation should continue as anticipated pursuant to the federal rules, local rules or a scheduling order.

October 5, 2020

On October 5, 2020, the parties provided a joint status report to the court. In the joint status report, DHS stated “[A]lthough DHS formally submitted the proposed rule, titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization (“H-4 EAD proposed rule”) to both the Office of Management and Budget (“OMB”) and Office of Information and Regulatory Affairs (“OIRA”) for review under Executive Order 12866 on February 20, 2019, this proposed rule is still in the same stage due to urgent competing priorities that have arisen during the COVID-19 pandemic.”

Save Jobs asked to move promptly for summary judgment. Immigration Voice (Intervenors) asked for a stay until after the Presidential election.

November 8, 2019

The court reversed the U.S. District Court for the District of Columbia’s 2016 grant of summary judgment in favor of DHS, concluding that Save Jobs USA had demonstrated that DHS’s H-4 EAD rule would subject its members to an actual or imminent increase in competition, and that it therefore has standing to pursue its challenge. (Save Jobs USA v. DHS, 11/8/19)

September 16, 2019

In a letter to the court, DHS states that,
“The proposed rule is currently undergoing the interagency process as required by Executive Order 12866. As previously indicated, DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020. Although that timeframe is aspirational, DHS believes that the September 27, 2019 oral argument should be removed from the calendar and postponed and DHS ordered to provide status updates in accordance with a schedule the Court deems appropriate.” (emphasis added)

In a response to order to show cause, Save Jobs USA argued that the appeal should move forward and that the court should hold oral argument as scheduled.

Immigration Voice, Sudarshana Sengupta, and Anuj Dhamija, submitted a letter, arguing that “based on prudential considerations and in the interest of judicial economy the oral argument should be removed from the argument calendar and indefinitely postponed.”

March 13, 2019

On March 13, 2019, the D.C. Circuit Court of Appeals granted the appellee’s consent motion for a 14-day enlargement of all parties’ briefing deadlines. The following revised briefing schedule will now apply in this case:

  • Appellee’s Brief – April 1, 2019
  • Intervenor for Appellee’s Brief – April 8, 2019
  • Appellant’s Reply Brief – April 29, 2019

(Save Jobs USA v. DHS, 3/13/19)

January 23 , 2019

On January 23, 2019, the D.C. Circuit Court of Appeals granted the appellee’s motion for an enlargement of all parties’ briefing deadlines. The following revised briefing schedule will now apply in this case:

  • Appellee’s Brief – March 18, 2019
  • Intervenor for Appellee’s Brief – March 25, 2019
  • Appellant’s Reply Brief – April 15, 2019

(Save Jobs USA v. DHS, 1/23/19)

December 17 , 2018

On December 17, 2018, the D.C. Circuit Court of Appeals granted a motion to intervene that Immigration Voice, a non-profit organization, filed with the court in March 2017. The court also ordered the case to be removed from abeyance and directed the clerk to enter a briefing schedule. The following briefing schedule will apply in this case:

  • Appellant’s Replacement Brief & Appendix – January 16, 2019
  • Appellee’s Brief – February 15, 2019
  • Intervenors for Appellee’s Brief – February 22, 2019
  • Appellant’s Reply Brief – March 15, 2019

(Save Jobs USA v. DHS, 12/17/18)

September 21, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicates that DHS’s intention to proceed with publication of an NPRM concerning the H-4 EAD Rule remains unchanged and that DHS continues to proceed in line with that intention. Since the filing of the status report on 8/20/18, DHS senior leadership has reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB. DHS anticipates that the rule will be submitted to OMB within three months. (Save Jobs USA v. DHS, 9/21/18)

August 20, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that final DHS clearance of the proposed rule to remove from regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization is ongoing. Senior levels of DHS leadership are actively considering the terms of the proposed rule for approval. Once it is cleared through DHS, it will be sent to the Office of Management and Budget (OMB) for review. (Save Jobs USA v. DHS, 8/20/18)

May 22, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that the proposed rule to remove from regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization is currently in final DHS clearance. Once it is cleared through DHS, it will be sent to the Office of Management and Budget for review. (Save Jobs USA v. DHS, 5/22/18)

February 28, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that DHS intends to publish a Notice of Proposed Rulemaking to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization by June 2018. (Save Jobs USA v. DHS, 2/28/18)

According to USCIS data, 104,750 H-4 spouses have received employment authorization under the current H-4 employment authorization rule, which was published at 80 FR 10284 on 2/25/15.

November 17, 2017

The D.C. Circuit Court of Appeals granted the government’s motion to hold proceedings in abeyance pending further order of the court and denied the motion to reschedule briefing and oral argument. Parties were directed to file motions to govern further proceedings by January 2, 2018.

 September 27, 2017

DHS filed a motion to hold proceedings in abeyance through December 31, 2017. (Save Jobs USA v. DHS, 9/27/17)

September 20, 2017

Save Jobs USA filed a motion to reschedule briefing and oral argument.

June 23, 2017

The D.C. Circuit Court of Appeals granted the government’s motion to hold the proceedings in abeyance and denied the motion to reschedule briefing and oral argument. Parties were directed to file motions to govern further proceedings by September 27, 2017.

April 3, 2017

The government filed a motion with the D.C. Circuit Court of Appeals requesting that the court hold the proceedings in abeyance for 180 days, up to and including September 27, 2017, to permit DHS to reconsider the H-4 EAD rule and whether it should revise the rule through notice-and-comment rulemaking. (Save Jobs USA v. DHS, 4/3/17)

 September 27, 2016

The U.S. District Court for the District of Columbia granted summary judgment in favor of DHS, holding that Save Jobs USA lacked Article III standing to challenge DHS’s H-4 EAD rule.

May 24, 2015

Memorandum opinion denying Save Jobs motion, finding that Save Jobs failed to show it would suffer irreparable harm absent preliminary relief.

April 23, 2015

A group of tech workers formed by Americans who were employed at Southern California Edison, filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction staying the implementation of USCIS’s final rule on employment authorization for certain H-4 dependent spouses.

H-4 EAD FAQs under Trump Policies 2025

H-4 EAD General Questions

Legal and Preparatory Steps

Work and Employment Issues

Family and Personal Issues

Policy Questions

Long term Immigration Strategies

Special Cases

If you are on H-4, navigating work authorization and preparing for potential changes under a Trump administration requires expertise. Herman Legal Group has the experience and personal attention to help you understand your rights, H-4 EAD options and alternative paths to work authorization.

With a history of advocating for immigrants through changing regulations, their team will provide you with current and customized legal strategies for your situation. By working with Herman Legal Group you will feel at ease and have a plan for your professional and personal life in the US.

Related Resources

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

F1 Visa: What Does Trump 2.0 Mean for International Students?

With Trump re-elected to be President and prepared to be inaugurated on January 20, 2025, F-1 international students in the US are getting worried about being able to continue their studies and get post-graduation opportunities.

The uncertainty around immigration policies has created anxiety and fear on campuses, especially for students from countries that have been affected by US visa rules in the past. This will impact how international students apply, maintain and extend their student visas and the US higher education landscape.

This article explains the impact of Trump’s immigration policies on international students, universities and global talent and provides practical advice to help you navigate this situation.

Student and Work Visa Basics

  • F-1 and J-1 Student Visa: The most common visa for international students, requires proof of admission, financial stability and intent to go back home after graduation. These student visa rules are subject to change under different administrations, impacting the eligibility and application process for international students.
  • OPT (Optional Practical Training): A program that allows students to work up to 12 months after graduation (up to 36 months for STEM students).
  • H-1B Visa: A highly competitive work visa, 114,017 granted in 2024 out of 442,000 applications (~26%).

Visa and Economic Barriers

Average cost of studying in a U.S. university is $40,000 per year, too high for many students.

  • Visa denials based on intent to stay in the U.S. adds to the complexity, despite many students meeting the requirements.

Despite their contributions to academia and U.S. economy, many students face challenges in navigating a complex and limited visa system. Students are not only worried about getting an F-1 student visa but also about transitioning from OPT to H-1B and maintaining their immigration status.

The Stakes: Why International Education Matters

Current Situation

International students’ economic impact is huge:

  • $40 billion to the U.S. economy annually.
  • 370,000 jobs supported by their presence.
  • 100,000 foreign students graduate from U.S. universities every year.
  • China and India are the largest source of international students, but Africa is the fastest growing demographic.

Not Evenly Distributed Across States

  • States like California, New York and Massachusetts benefit the most from international students, with billions of dollars.
  • Smaller states and Republican led states like Texas and Florida also benefit economically, showing international education has a broad impact.

Beyond Numbers

International students bring diversity to campuses and a pipeline of skilled workers to key industries, especially STEM fields. Their enrollment also boosts the global reputation of U.S. higher education.

1. Global Talent Shift

Stricter immigration policies could lead to a big “brain drain” effect:

  • Students may choose to study in more open countries. Stricter policies could severely impact international students’ ability to study in the U.S., forcing them to seek education in more welcoming countries.
  • This would deprive the U.S. of future leaders in tech, business and science.

2. Economic Growth

International students are key to:

  • Research and development projects.
  • Entrepreneurship, many startups founded by former international students.
  • Filling skills gap in high demand fields.

Restricting international student visas also will harm the U.S. economy in the long run.

Presidential Power

A U.S. president has a lot of power over visa policies, often through executive actions that can:

  • Direct consular officers to tighten or loosen visa approval standards.
  • Allocate resources that impact processing times and application backlogs.
  • Shape the perception of U.S. as a welcoming country for international students.

Under the incoming Trump administration, changes to these programs will limit job opportunities and make it harder for international graduates

Why Students Are Worried

1. Day-One Immigration Restrictions

  • Trump administration’s history of quick immigration decisions has raised concerns that new restrictions will take effect on January 20, 2025 itself.
  • In response, some colleges are advising international students to come back to campus before the inauguration to avoid travel bans or stricter entry requirements.

2. History of Stricter Visa Policies

During Trump’s previous presidency there was:

  • Higher visa rejection rates, especially for students from developing countries or Muslim majority countries.
  • More scrutiny of visa applications, including additional interviews and background checks.
  • Policies targeting countries with strained relations with U.S. like Uzbekistan, Ukraine and China.

The Department of Homeland Security (DHS) played a significant role in implementing these stricter visa policies, citing national security concerns.

Many students are worried about their ability to renew or maintain their visas under Trump’s second term.

Project 2025

One clue on what the new administration will do on immigration can be found in Trump’s new agenda “Project 2025” means more immigration cuts. It includes:

  • Merit-based immigration system.
  • Stricter visa approval criteria.
  • Reduction in family reunification and refugee resettlements.

These will impact international students who want to study in the U.S.

Know the Past to Understand the Future

As Albert Einstein, one of the most famous and accomplished American immigrants, said:
“If you want to know the future, look at the past”
F-1 policies under Trump I tells us what to expect from Trump II.
F-1 policies shows a big difference between Trump and Biden administration

The Trump Legacy

Restrictive Policies

During his first term (2017-2021), Donald Trump introduced:

  • Stricter F-1 Visa Processing: Longer delays and higher denial rates for F-1 student visas discouraged many students.
  • Eliminate D/S. On September 28, 2020, DHS tried to shorten F, J and I visa durations to 2 or 4 years and replace the “duration of status” policy.
  • 2-Year Max: The proposed rule also wanted to limit the maximum student visa to 2 years for students from countries with: High visa overstay rates (above 10%) (mostly in Africa and parts of Asia) and countries designated as state sponsors of terrorism (e.g. Iran, Syria, Sudan and N. Korea).
  • Limit Grace Period: The proposed rule wanted to limit the grace period for F-1 visa holders to leave the U.S. after completing their studies to 30 days from 60 days.
  • Limit Language Schools: Students in language training programs would be limited to a maximum stay of 24 months, including breaks and vacations.
  • Online Class Restrictions: During the pandemic, the administration tried to force international students to leave the U.S. if their classes were online, but this was later rolled back after lawsuits from universities.
  • OPT Challenges: In his last days in office, his administration proposed to limit OPT, which could come back in a second term.
  • H-1B Restrictions: Trump wanted to reduce the number of H-1B visas issued, citing American job competition.
  • “High-Risk” Countries”: Visa restrictions affected students from countries considered U.S. adversaries, especially China. A 2020 Trump executive order banned certain Chinese students and researchers linked to China’s “military-civil fusion strategy” from entering the U.S. The Biden administration kept this policy, visas during heightened U.S.-China tensions, showing bipartisan concerns on Chinese immigration.
  • The “Muslim Ban”: This executive order temporarily blocked individuals from several Muslim majority countries, including Iran, Iraq and Syria from entering the U.S. Many schools saw a big decline in Iranian students and scholars during this period.
  • Unlawful Presence Bar: In 2018, Trump administration issued a policy memo changing how unlawful presence is calculated for F, J and M visa holders: Under the new policy, F-1 students would start accruing unlawful presence the day after they violate their status (e.g. working without authorization or not maintaining a full course load). Accruing more than 6 months and 1 year of unlawful presence would trigger the 3- and 10-year bars.
  • End DACA: Special protections for young undocumented immigrants
  • “Zero-Tolerance” PolicyLed to family separations at the U.S.-Mexico border.

Most of these were rolled back but left a lasting impact on international students and educators. Along with anti-immigration rhetoric, these policies created an impression that the U.S. was not welcoming to international students and immigrants. This likely contributed to the decline in international student enrollment during his first term.

These were part of Trump’s broader goal to limit immigration and national security.

Legal Challenges with Universities

  • In 2020, Immigration and Customs Enforcement (ICE) issued a policy to deport international students in fully online programs.
  • Harvard and MIT sued the government and the policy was withdrawn.
  • Then-Harvard President Lawrence S. Bacow called the policy “reckless and cruel” highlighting the administration’s tough stance on immigration.

H-1B Work Visas

H-1B visa is key for international graduates to transition to long-term employment in the U.S.

Trump Administration’s Record

  • Increased DenialsH-1B visa denial rates went up during his first term to 24% compared to 4% under Biden.
  • Backlogs and Delays: Under Trump, visa processing was slowed down and many students were left in limbo.
  • H-4 Spousal Work Permits: Trump administration tried to rescind work authorizations for H-4 visa holders which could come back in a second term.

Impact On Students & Colleges

In Trump’s first term, international students faced:

  • Immigration Policy Uncertainty: Travel ban and proposed OPT restrictions caused anxiety among students and families.
  • Enrollment Decline: Between 2016 and 2018, new international student enrollment declined by 3%, 7% and 1% with some institutions like Illinois Institute of Technology seeing a 25% decline in international enrollment.
  • “America First” Rhetoric: Trump’s focus on American workers worried international graduates about their career prospects.

The impact was not limited to campuses but extended to the broader economy as international students bring in billions in tuition and fees and are key to innovation-driven sectors.

Trump’s second term will bring challenges for F-1 visa students and others. Here are some of the potential changes to watch out for:

Changes Under Trump 2.0 That Can Affect International Students

More Focus on Security

Experts say immigration policies under a second Trump administration will be more security-focused. Student mobility will be seen as a security threat rather than an opportunity to develop the world or grow the economy.

Changes to OPT and STEM OPT Extensions

Current Situation

OPT allows international students to work in the U.S. for one year after college graduation, with STEM students eligible for a two-year extension. The U.S. Supreme Court upheld STEM OPT extension in October 2023 and gave relief to students and universities.

What’s Likely Changing?

Trump’s previous administration tried to:

  • Limit OPT duration
  • Eliminate or restrict STEM OPT, citing competition for American workers.

With Trump back in office, these policies will be revisited under his “Buy American, Hire American” agenda:

Restricting OPT will:

  • Disrupt individual career paths by limiting opportunities for graduating students who depend on work experience
  • Undermine the U.S. as a global technology leader.

Higher Denial Rates for H-1B and H-4 Visas

H-1B Visa

Under Trump’s first term:

  • H-1B denial rate was 24% vs 4% under Biden.
  • Requests for Evidence (RFEs) tripled, causing delays and uncertainty for employers and applicants.

H-4 Visa

H-4 visas, issued to H-1B spouses, allow work authorization under an Obama-era rule. This was threatened during Trump’s first term and can be revisited.

Shorter F-1 Visa Stays

Current rule allows international students to stay in the U.S. as long as they maintain their student status (“duration of status”). In 2020, Trump proposed:

  • Limit student visa stay to 4 years (or 2 years for certain countries).
  • Add administrative and financial requirements for extensions.

For students with degrees longer than 4 years (e.g. PhDs), this will create uncertainty and additional costs.

China as a Target

Students from China, already affected by previous visa restrictions, will be under even more scrutiny under policies influenced by U.S.-China tensions. Experts say this can be a chance for selective denials to further strain academic ties. Chinese students who make up about one-third of all international students in the U.S. will be under more scrutiny under U.S.-China tensions

High Risk Countries:  More Vetting

Trump has promised “extreme vetting” of immigrants and it will likely extend to international students. More extensive and time-consuming background checks will be required. Students from “high-risk” countries (e.g. China, Iran, certain Middle Eastern countries) will face more vetting procedures and higher denial and delay rates. Students will need more documentation and universities will have to write appeal letters. These heightened vetting procedures have raised significant visa concerns among international students, particularly those from high-risk countries.

Higher Denial Rates

Experts predict F-1 and H-1B denials will increase, especially for students from Africa and Asia. African students already have disproportionately high visa denial rates and it will get worse under a stricter immigration regime. Almost 50,000 students from sub-Saharan Africa study in the U.S. each year and the region saw an 18% increase in student flows in 2022-23.

Return of Unauthorized Presence Rule

Previously, F-1 students only started accruing unauthorized presence after a formal determination by USCIS or an immigration judge.

Trump could go back to the 2018 rule which would:

  • Make it easier for students to unintentionally accrue unauthorized presence and trigger the 3- and 10-year bars.
  • Create chaos among international students and universities as minor infractions would result in severe penalties.

The policy was opposed by universities, immigration advocacy groups and legal experts who argued it undermined the “duration of status” flexibility that F-1 students relied on. Several lawsuits were filed and in 2020, a federal judge blocked the policy saying it was inconsistent with existing immigration law.

Challenges with F-1 Visa Renewal and Student Visa Rules

With increased administrative processing, scrutiny and background checks, students who need to extend their F-1 visa will be uncertain. F-1 students who are in the U.S. but whose prior F-1 visa has expired will need to re-apply for the F-1 visa in their home country if they want to travel outside the U.S. and re-enter on F-1 status.

Funding for Professional Programs

Trump’s threat to eliminate the U.S. Department of Education and his restrictionist policies on international student and scholar programs have many internationals worried about funding programs that support their studies and work in the U.S.

Opportunities Amid Challenges

Despite the uncertainty, Trump’s policies could have some benefits:

If done, this policy could be as good as Canada and UK’s post-graduation immigration pathways and make the U.S. a competitive destination for top global talent.

  • Economic Growth Policies: Tax cuts and deregulation would create new jobs, benefit international graduates in IT, pharmaceuticals and manufacturing.
  • U.S.-India Relations: Trump’s relationship with Indian Prime Minister Modi could be good for Indian students and professionals.

Student Testimonials Show the Challenges

International students are resourceful, hardworking and in a way, very entrepreneurial.

Despite the concerns about Trump, recent surveys show many international students are less affected by U.S. politics than expected:

  • Studyportals/Intead survey found most students thought the 2024 election results would not impact their plans to study in the U.S.
  • According to IDP Research, the U.S. is still a top destination, tied with Australia, as of late 2024.

Despite this strength, there’s a lot of fear and anxiety in the international student community as seen in the comments below.

Fear of Visa Renewal

  • Ekaterina Grigoreva, a first-year student from Russia, mentioned the challenges students from sanctioned countries already face:
    • In Russia, visa renewals are long and arduous, often requiring extra steps like background checks. Maintaining enrollment at an accredited university is crucial for students to ensure their eligibility for visa renewals.
    • Grigoreva said changes under Trump could make these challenges even worse and delay renewals so much that students miss entire semesters.

“It’s pretty hard for us to renew the visa in Russia … whereas when I got my visa done in Europe the whole process took about four days,” Grigoreva said. “And if the new administration would change the laws regarding student visas that could affect us as well in a negative way. ”Fear of Reapplication and High Rejection Rates- Raine Kamilova ’28 from Uzbekistan shared her experience:

  • Uzbekistan has a 60% visa rejection rate, the highest in the region.
  • Students with one-year visas like Kamilova have the tough choice of either going back home to reapply or stay in the U.S. indefinitely and risk being rejected.

Future Uncertainty

  • Héloïse Hughes ’27 from Switzerland is concerned about completing her studies:
    • “Trump has shown in the past he can and will make it hard for people like me to finish their degrees,” Hughes said.
  • Many students like Jorge Zafrilla Díaz ’28 from Spain are worried about Trump’s policies on Harvard and financial aid for international students. Zafrilla Díaz described the campus atmosphere as fearful, with students worried about their visas and Harvard’s ability to protect them.
  • Many students fear that increased scrutiny or new policies will mess with their academic path.
  • Zafrilla Díaz said his friends from high risk regions are most anxious:
    • “They’re scared. Will they be able to come back after they leave?”

Post-Grad Challenges

  • Sofiia Syzonenko ’27 from Ukraine is thinking of applying for a U.S. work visa after graduation:
    • Trump’s previous administration had higher denial rates for work visas so it’s tough for international graduates to get jobs in the U.S.
    • Students worry it will continue.

Visa Restrictions

  • Nilay Ersoy ’27 from Germany said:
    • “It’s such a polarized administration… It’s not easy. We’ll wait and see for now and hope for the best.”

Students are worried about OPT restrictions, higher visa denials and the return of the Muslim Ban.

  • Tamrin Chowdhury, a post-doc from Bangladesh is worried about stricter travel bans under Trump which will disrupt his personal and professional plans.

Professional Program Funding

  • As a pre-med student Grigoreva is also worried about funding cuts to higher education especially medical schools:
    • “If schools prioritize citizens because of limited resources it will be harder for international students like me to get in.”

Shorter OPT

  • Zhanyue Chen, a master’s student from China is worried Trump’s administration will reduce OPT to one year even for STEM students:
    • “We are really worried about finding a job in the United States because the process will be harder and more competitive.”

Excluded from Political Discourse: Emotional/Social Impact

  • International students who can’t vote feel left out of the conversation about policies that affect them directly.
  • Chen said:
    • “Nobody cares about international students’ feelings because they think, ‘This is my country and I’m voting for my rights.’”
  • But she emphasized the need to stay informed especially for students who are planning to apply for green card or citizenship.

Limited Advocacy

  • Grigoreva felt being unable to vote made her an “observer” in a system that affects her life:
    • “All I could do this election cycle was educate my friends.”

Leaving the U.S.

  • For students like Egor Sergeev, a junior from Russia the uncertain future under Trump has made him decide to leave after graduation:
    • “I’m glad I’m not staying here for much longer. It’s not my circus, not my monkeys.”

Reasons to be Optimistic: Federal Checks and Balances

Congressional Oversight

  • Ibou Dieye, an international Ph.D. student from Senegal said:
    • “It’s not one man who can make policies or decisions that harm. Students should trust federal legislators.”

History has shown us

  • Despite the first term of Trump, students like Dieye are resilient:
    • Dieye who applied for H1-B visa during Trump’s presidency said he survived the Muslim Ban as a Muslim student.

International Students Unimpressed with Trump’s Green Card Plan

Trump May Give Green Cards to Foreign Graduates of U.S. Colleges

In a surprise move, Republican presidential candidate Donald Trump said he will give green cards to foreign students who graduate from U.S. colleges, a stance that seems to be opposite of his previous tough immigration policies. The proposal was mentioned in a recent podcast and has got a range of reactions from skepticism to cautious optimism given Trump’s history on immigration.

In a podcast in June 2024, Trump said he will give green cards to all foreign graduates including those of two year programs.

Here’s the quote, the implications and reactions from stakeholders.

What He Said?

On the All-In Podcast with Silicon Valley investors, Trump said:

“You graduate from a college, I think you should get automatically as part of your diploma a green card to be able to stay in this country. That includes junior colleges too.”

He was asked by angel investor Jason Calacanis who emphasized the need to keep high skilled foreign workers in the U.S. economy especially in the tech industry.

Trump said international graduates would not go back home and instead would become multi-billionaires, employ thousands and thousands of people and it could’ve been here:

“They go back home, become multi-billionaires, employ thousands and thousands of people, and it could’ve been here.”

Trump said this would’ve been done during his previous term but was delayed by the COVID-19 pandemic.

But this is opposite of his campaign’s overall anti-immigration stance which includes “mass deportations” and stricter visa policies.

Not sure if this will become a policy.

What Does This Mean?

  • A green card or permanent resident card allows individuals to live and work in the U.S. permanently and is a step towards citizenship.
  • If implemented, Trump’s proposal would:
    • Automatically give green cards to graduates of accredited U.S. institutions including two year community colleges.
    • Simplify the path to permanent residency for international students who have long been complaining about work authorization and visa renewals.

Does it apply to all foreign graduates?

  • Trump didn’t say:
    • Students on legal visas like F-1 or J-1.
    • Those who overstayed their visas or entered the U.S. without authorization.
  • His campaign said only graduates who go through “the most aggressive vetting process in U.S. history” will qualify and those who can “make significant contributions” to the U.S.

Legal and Political Challenges

1. Green Card Categories and Limits

Currently green cards fall into three categories:

  1. Asylum: For those fleeing persecution.
  2. Family Reunification: For relatives of U.S. citizens and permanent residents.
  3. Employment-Based: The smallest category, capped at 160,791 in 2024.

Alexandra Filindra, professor of political science and psychology at the University of Illinois Chicago, described the proposal as “incredibly difficult.”

“To change the laws that apply to foreign graduates and make it a guarantee requires congressional action… It’s very, very unlikely.”

Political and Legislative Challenges

  • Congressional Approval
    • Changing immigration laws to give green cards to graduates would require breaking the partisan gridlock in Congress.
    • Republicans and Democrats are divided on immigration so this faces big hurdles.
  • Passing this would require bipartisan support which could be tough given the polarized immigration debate:
  • Some lawmakers may not want to give green cards automatically and instead want stricter vetting or quotas.
  • Others may want to address all categories of immigrants not just highly skilled workers.

2. Contradictions with Trump’s Immigration History

  • Critics including Clare Lake, director of International Student Scholar Services at Columbia, are skeptical given his record:

Trying to repeal the Deferred Action for Childhood Arrivals (DACA) program.

Limiting work and student visas during his first term.

  • Lake summed it up:

“What kind of president would try to repeal DACA and then give permanent residency to all international students?”

3. Resource Constraints

  • Giving green cards to more people would add to an already overwhelmed system:
  • Green card processing times can take years even for the highest priority categories.

A flood of applications from international graduates would overwhelm the agencies.

It Makes Economic Sense But Is He Serious?

International Talent

  • If this happens the U.S. will be more attractive to international students especially in competitive fields like STEM and business.

Talent Retention

  • Trump’s proposal fixes a major problem for industries like tech which rely on retaining top international talent:
    • High skilled graduates struggle to get work authorization or transition to permanent residency.
    • Simplifying the process would help fill labor shortages in STEM.
    • But without bipartisan support this is just a political play not a real policy.

Global Competition

  • Countries like Canada, Australia and the U.K. already have straightforward pathways to permanent residency for international graduates.
  • The U.S. will fall behind in the education market if it doesn’t offer similar incentives.

Contradictions with Anti-Immigrant Rhetoric

  • Trump’s promise goes against his anti-immigrant campaign:
    • Mass deportations.
    • Stricter visa policies for students and workers.
    • These contradictions make it hard to take him seriously for many.

Student Reactions: Mixed Feelings

Reactions from International Students

  • Many international students are cautiously hopeful:
    • A green card process would fix the long standing issues with the U.S. visa system.
  • But still skeptical:
    • Students and advocates are wary of Trump’s history of restriction over inclusion.

1. Excitement and Doubt

  • Eunkyung Kim, a junior music major from Saipan, likes the idea but doesn’t think it will happen:
    • “If I had a green card it would be so much easier. I wouldn’t have to work to get a visa. But is this even possible?”
  • Many students share Kim’s skepticism, knowing how hard it is to make this happen.

2. Field-Based Limitations

  • Alice Abreu, a senior film and communications major from Brazil, is skeptical of Trump’s plan for non-STEM graduates
  • Abreu said:
    • “It’s so hard to find a job without being allowed to be in the country for over a year. The idea sounds great but where are the incentives for us to stay here?”

3. Feeling Left Out

  • Sam Herrera, a senior from Monterrey, Mexico, is tired of being an outsider to the decisions that affect international students:
    • “We’re just watching what’s going on, but these decisions will affect us too.”

Skepticism and Reactions

Former Biden Campaign Response

  • The former Biden campaign called out Trump’s proposal as not matching his past actions.
  • Kevin Munoz, former Biden campaign spokesperson:
    • “Trump’s promise is both a lie and an insult especially to the millions of people who have been hurt by his first term.”
  • Advocates are skeptical of Trump’s promise:
    • Aaron Reichlin-Melnick, policy director at the American Immigration Council:
      • “I almost have to laugh because his administration has already implemented multiple policies to restrict student visas and make it harder for people to stay in the country after graduation.”

Examples of Trump’s anti-immigrant actions during his presidency:

  • Tightened H-1B visa eligibility, a key pathway for international students to stay in the U.S. after graduation.
  • Tried to deport international students taking online-only classes during the COVID-19 pandemic, a policy later reversed after universities spoke out.
  • Tried to limit student visas and OPT extensions.
  • Implemented policies like the “Muslim Ban” which affected students from specific regions.

What Can International Students Do Now?

Here are some tips to adapt and stay safe within the changing landscape:

Stay Informed

Follow immigration policy updates especially for F-1, OPT and H-1B.1.

  • Follow DHS, U.S. embassies and universities announcements.
  • Regularly check with college’s Office of Immigration Services.
  • Attend university-hosted events or workshops on visa and work authorization,

Get Expert Legal Advice

  • Consult with immigration attorneys to make sure your visa applications and renewals are in order.
  • Experienced Immigration Attorneys can provide guidance on policy changes and alternative visa options.
  • Plan for delays or extra scrutiny in the application process.

Build Your Profile

Gain skills and experience that make you valuable to U.S. employers.

Have a Plan B

  • Look Elsewhere, If U.S. policies get too restrictive, look into studying in countries with more open policies like Canada, Australia or the U.K.
  • Consider regional hubs for education and work if U.S. policies get too restrictive.

Look Into Work Status and Green Card Alternatives:

Get Involved: Advocacy and Institutional Support

  • Join student advocacy groups or collaborate with campus organizations to have student voices heard in the immigration debate. Universities and student organizations are advocating for policies that benefit international students:
    • Increase OPT and H-1B visas.
    • Simplify green card applications for high-achieving graduates.

Build Support Network

  • Join campus initiatives that create safe spaces and conversations around immigration issues.
  • Connect with campus groups and international student organizations for emotional support and resources.

Be ready for changes in immigration rules.

Beware: F-1 Day 1 CPT

What is Day 1 CPT?

Day 1 CPT allows students to work in their field of study from day 1 of their program, an alternative to OPT and H-1B visas.

Benefits

  • Immediate Work Authorization: No waiting for OPT.
  • Flexibility: Hybrid and executive programs for work and study.
  • Extended Employment Options: No H-1B lottery.

Requirements

How will Colleges be Affected?

During Trump’s first term, international student enrollment dropped by 12%.

A similar or bigger drop in international student enrollment will have a domino effect across colleges nationwide and the U.S. economy.

1. Financial Impact

A decrease in international student enrollment will add to existing higher education problems. Many colleges, especially smaller or tuition-dependent institutions, rely heavily on international students’ higher tuition.

  • International students bring in billions in tuition revenue every year, often paying higher rates than domestic students.
  • Reduced enrollment due to stricter visa policies will lead to budget cuts and program reductions, especially at smaller institutions.

2. Loss of Diversity

  • International students bring different perspectives, intellectual and cultural diversity to campuses.
  • A decline in international enrollment will diminish this richness and hurt U.S. universities’ global reputation.

3. Global Competition

UK, Australia and Canada are already cracking down on international students but they still have clearer residency pathways and more competitive advantages than the U.S. If the U.S. doesn’t act fast, it will lose its edge in attracting global talent.  Increasing Competition from Other Countries

  • Canada, UK and Australia have policies to attract international students:
  • Easier path to permanent residency.
  • More flexible post-graduation work.

Demographic Shifts: Domestic enrollment decline and waning public support for higher education adds to the pressure on institutions.

If the U.S. doesn’t act, it will lose global talent to these countries

Erosion of Soft Power

The U.S. has used international education as a form of soft power, building global goodwill and influence. A restrictive immigration policy will undermine this strategy as other countries like Canada and Australia take advantage of U.S. policy uncertainty to attract international talent.

Policy aside, perception is key. International students consider the broader sociopolitical environment when choosing a destination:

The Brexit analogy: After the UK decided to leave the EU, EU student applications dropped sharply even before the policy changed.

A less welcoming U.S. environment will drive students to Canada, Australia or other countries with pro-immigration policies

What Can Colleges Do to Better Protect International Students?

University Responses and Support

Student Concerns Addressed

  • Immigration Services at several colleges have taken action:
    • Sending regular updates and guidance to international students.
    • Hosting immigration attorneys to help students navigate the changes.
    • Reversing policies, such as limiting campus housing during breaks, after student pushback.

Support Systems

More resources for international students to navigate visa and campus life.

Financial and Practical Support

Some students are asking their colleges to provide:

  • Discounted housing or financial support for those who can’t go home during breaks.
  • Campus housing flexibility for students who can’t travel due to visa uncertainty.

Long-term Admissions Strategy

International students and faculty are asking colleges to:

  • Defend international student admissions policies.

Advocate for more visa pathways to keep U.S. institutions competitive globally. Advocacy

Coalitions: Institutions should band together for bipartisan solutions to keep U.S. competitive.

Dr. Fanta Aw, NAFSA CEO said:

  • “We will educate the incoming administration on policies that grow international education and U.S. global competitiveness.”

Advocacy will focus on:

  • Streamlined visa process.
  • International students’ economic and cultural value.
  • U.S. leadership in research and innovation.
  • Green card pathways for international graduates.
  • Save OPT to attract the best and brightest.

Diversity Commitments:

Campus is inclusive and safe for international students.

Global Partnerships:

Dual degree programs or exchange programs with foreign universities. Expand partnerships with universities abroad to offset enrollment decline and maintain global presence

Branding:

U.S. education is global; institutions should highlight their niche.

Diversify Student Recruitment:

Expand outreach beyond China and India to other regions with growing interest, like sub-Saharan Africa.

Optimism and Caution

Expert Views

  • Cautious Optimism: Dr. Fanta Aw, Nafsa CEO says international enrollment may not decline because of global uncertainty in other regions.
  • The Defense Mode: Dr. Miriam Feldblum says focusing only on “defense” against restrictive policies will hold us back. She urges institutions to stay forward thinking and proactive.

Opportunities

Despite the challenges, this could also be an opportunity for innovation:

Flexible Pathways: Institutions can create alternative programs like hybrid models to accommodate students affected by visa restrictions.

Examples:

Duke’s University

Duke has been working with international students to address their visa concerns by:

  • Immediately after the election, international student groups organized town halls to provide a safe space for students to talk.
  • Residential tutors like Eliel Sanchez-Acevedo stressed the importance of community:
    • “It was good to hear students’ concerns and be there for them.”

Navigating the Changes

  • Duke’s Office of Visa Services will:
  • Help students with stricter visa process.
  • Advocate for students with delays or rejections.

Advocacy

  • While students like Sanchez-Acevedo acknowledge the difficulties, they also encourage students to be hopeful:

“We can reference what happened during the previous Trump administration but things may be different now. Students should stay hopeful and proactive.”

  • Education leaders want to work with the new administration to protect and expand international education:

Yale

Office of International Students and Scholars

  • The Office of International Students and Scholars (Designated Student Office/DSO) should be a go-to resource for students on visa pathways, career planning and waivers.
  • Ozan Say, Director of Yale’s OISS office said Yale will support its international community no matter what:
    • “No matter who wins, we will support our students and scholars.”
  • Say said the university has learned to anticipate sudden policy changes, calling past experiences “earthquakes” that required quick responses.

Prevention

  • Talk about immigration policy, educate students about changes and how to navigate uncertainty.

International Students for the U.S. Economy

International students are a big business for the U.S. economy, contributing $43.8 billion in 2023-24 and 378,175 jobs according to a new NAFSA: Association of International Educators report. That’s a 7% increase from last year and a big deal for American communities and institutions.

This report looks at the economic impact of international students, the challenges they face and the policies to keep the U.S. competitive.

Key Facts: International Students

1. Economic Impact

  • 1.1 million international students in the U.S. in 2023-24 contributed:
    • $43.8 billion to the economy.
    • 378,175 jobs across all industries.
    • 7% increase from last year when international students supported 368,339 jobs.

2. By Student Type

  • Graduate Students: Largest group with 502,291 students (8% increase from last year).
  • Undergraduate Students: Down 1% to 342,875 students.
  • Non-Degree Students: Primarily intensive English programs, down 12% to 38,742 students.
  • Optional Practical Training (OPT): 242,782 students participated in post-graduation work programs and gained hands-on experience in their field.

States with the Most International Students

International students contribute to big and small states, often to local economies and jobs.

Top States

  1. California:
    • 140,858 students contributed $6.4 billion and 55,114 jobs.
    • $45,434 per student.
  2. New York:
    • 135,000 students contributed $6.3 billion, 51,719 jobs.
    • $46,487 per student.
  3. Massachusetts:
    • 82,306 students contributed $3.9 billion, 35,849 jobs.

Smaller States and Republican-Led Regions

  1. Texas:
    • 89,546 students contributed $2.5 billion, 22,112 jobs.
  2. Florida:
    • 12,555 jobs supported by $1.5 billion in contributions from international students.
  3. Iowa:
    • 8,515 students contributed $217.9 million, 1,858 jobs.
  4. Kansas:
    • 8,685 students contributed $236.1 million, over 1,500 jobs.

Even states that oppose immigration like Iowa and Kansas benefit from international students.

Student Categories

1. Community College Students

  • 59,000 international students at U.S. community colleges contributed:
    • $2 billion to the economy.
    • 8,500 jobs.
  • Top Community Colleges:
    • California: 13,989 students, $591.1 million, 2,534 jobs.
    • Texas: 11,676 students, $327.8 million, 1,403 jobs.
    • Washington: 5,630 students, $163.7 million, 651 jobs.

2. English Language Programs

  • 9,782 students in English language programs contributed:
    • $371.3 million to the economy.
    • 2,691 jobs.
    • Even Mississippi, a small state, had 175 students contribute $1.4 million and 11 jobs.

Red Flags

1. Slowing Growth

  • While the total contribution increased, the growth rate decreased from the previous year, indicating the post-pandemic demand for U.S. education is fading.

2. Global Competition

  • Canada, Australia and the U.K. are taking proactive steps to attract international students.
  • Fanta Aw, NAFSA Executive Director:
    • “We can’t be complacent. The U.S. must do more to attract and retain global talent.”

3. Politics

  • With Donald Trump re-elected, international students face new concerns about visa processing times, denials and restrictions:
    • During Trump’s first term, visa denials and delays skyrocketed and many prospective students were discouraged.
    • Aw said to monitor policy changes during the transition to ensure international students are welcome.

International Student Spending

  • 51% of spending goes to tuition and fees, education is the biggest expense.
  • Other expenses:
    • Accommodation: 20%.
    • Dining: 12%.
    • Retail: 10%.
    • Telecom, health insurance and transportation: 2%.

There is regional variation, with higher costs in states like Rhode Island where education is 64% of the total contribution and 47% in Washington State.

Community and Cultural Impact

1. Small Towns

  • Smaller cities and towns benefit the most from international students:
  • They attend regional universities and live off-campus and integrate into local communities.
  • Aw said once residents see what students bring to the table, the immigration debate tends to simmer down.

2. Cultural Exchange

  • International students bring global competence to their U.S. peers, diversity and understanding on campuses across the country.

What’s Ahead for U.S. International Education?

1. Do More

  • Aw said the U.S. needs to take steps to attract and retain international students, especially in STEM fields which are key to innovation and research.

2. Advocate and Support

  • Organizations like NAFSA and the U.S. for Success Coalition are working to keep the U.S. open:
    • “Our institutions and communities welcome international students. We know what you bring to our country.”

FAQs for International Students Worried About 2025

F-1 and J-1 Visa Holders

Prospective Applicants

Institutional Impact

Special Cases

To Do

Donald Trump’s re-election has raised concerns about immigration policies for international students. While schools are supporting their students, the broader impact of these policies will change the U.S. higher education landscape. International students and institutions must be proactive to ensure academic success and global collaboration

The Role of Legal Advice

US immigration policies can be tricky, especially in these times of heightened scrutiny. Whether you are applying for a visa, renewing your status or planning your post-grad career, expert help matters.

Herman Legal Group Can Help

At Herman Legal Group we have been helping international students with all aspects of US immigration for years. Our team will make sure you are prepared for the changing policies and secure your US future.

Services we offer:

  • Visa applications and renewals.
  • OPT and H-1B transitions.
  • Advice on changing immigration rules.

Don’t let the uncertainty stop you. Contact Richard Herman today for a consultation and take control of your US future.

Resources:

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

Trump 2025: Disaster for H1B Visa Holders, Their Spouse and Employer

When Donald Trump takes office on January 20, 2025, U.S. immigration policies will change and it will not be limited to the undocumented only, but also H-1B visa holders and their families.

From his previous administration, Trump’s policies will make it harder to get H1B or extend H1B, target H4 EAD, impose administrative burdens and make life of foreign workers in U.S. more complicated. During the first Trump administration, policies and regulations introduced significant changes to immigration reforms, including the H-1B visa program, which had major implications for employers and foreign workers.

These changes will impact hiring, compliance and foreign workers. Below are the changes and practical steps employees and employers can take to navigate this.

H1B Denial Trends

As Albert Einstein said:

“If you want to know the future, look at the past.”

The data tells us what to expect in the next Trump administration.

H1B denial data shows a stark contrast between Trump and Biden administration:

Trump Era (2017-2020)

  • Denials reached 24%.
  • Policies discouraged employers from sponsoring H-1B workers. The Trump administration’s efforts to reshape immigration policy, particularly through the Department of Homeland Security, significantly impacted the H-1B visa system.

Post-Trump Era (2021-2022)

  • Denials dropped to 2%-4% under Biden, due to relaxed policies.

Project 2025

A conservative policy guidebook, “Project 2025,” outlines H1B reforms for a second Trump term:

  • Wage-Based Allocations:
    • Replace the lottery system with merit-based system prioritizing higher wages and advanced skills.
  • Stricter Oversight:
    • Increase monitoring to ensure U.S. workers are not disadvantaged by foreign hires.
  • Shift to High-Skilled Labor:
    • Make the program elite, only bring in the “best and brightest.”

Actions

  • Increased Scrutiny:
    • Bring back policies that require more documentation, increase costs and processing time for employers.
  • Reduced Visa Approvals:
    • Limit the number of H1B visas issued each year by tightening the eligibility criteria.
  • High-Wage Jobs:
    • Block entry-level positions, disadvantage recent graduates and small businesses.

What are H1B and H4 Visas?

H1B Visa Overview

  • Purpose: Allows U.S. employers to hire foreign professionals in specialty occupations like technology, engineering, healthcare and education.
  • Dependents: Spouses and children of H1B holders enter U.S. on H4 visas.
  • Role in Economy:
    • H1B holders are key to innovation and business growth.
    • Many H1B workers are from India and China, countries with huge backlogs for employment based green cards.
    • Tech companies are still pushing for more H1B visas, citing talent shortages in areas like semiconductor production (backed by $280 billion CHIPS and Science Act).

H4 Visa Overview

  • Eligibility: Dependents (spouses and children) of H1B visa holders.
  • Work Authorization: H4 spouses can work if:
    • H1B visa holder has an approved I-140 petition for permanent residency or
    • H1B status has been extended beyond 6 years due to green card backlogs.

WHAT IS H1B Visa: A Double Edged Sword?

H1B visa is a vital tool for U.S. companies to hire foreign talent in STEM, technology and healthcare. But it has also faced criticism for wage suppression and abuse.

1. H1B Benefits

Critical Workforce Support:

  • 60% of H1B visas are issued to companies in professional, scientific and technical fields.

Program allows companies to fill skill gaps in high demand industries like IT and engineering.

Boost for Small Businesses:

  • Research by Federal Reserve Bank of Richmond found that winning the H1B lottery increases a small business’s chance of survival over the next 5 years.

2. Criticisms and Controversies

Low Wage Categories

  • Companies are exploiting the program to hire foreign workers at lower wages, displacing U.S. workers.
  • Trump’s Truth Social’s H1B Petition in 2023 lists a $65,000 salary is an example of this.

Worker Displacement:

  • Program has faced scrutiny over high profile cases like Disney’s 2014 layoffs where U.S. workers were replaced by H1B contractors and forced to train their replacements.
  • Critics point to recent tech layoffs and growing number of domestic computer science graduates as reason to limit foreign hires.

Economic Impact of H1B Visa Program

Benefits

  • H1B workers contribute to economic growth through innovation, entrepreneurship and increased consumer spending.
  • Program has been linked to higher patent filings, research advancements and startup success.

Challenges

  • Dependence on the program has led to concerns about domestic workforce development.
  • Wage imbalances and perceived exploitation continues to be a criticism from labor advocates.

Trump Administration’s H1B Policy (2017-2020)

During his first term, Trump introduced policies that had a big impact on H1B program under the “Buy American, Hire American” executive order. This policy aimed to favor U.S. workers and increased restrictions on hiring foreign professionals. The changes to the deference policy also significantly impacted foreign national employees, causing confusion and challenges during the transition between administrations.

A Record of Disruption

Trump administration’s H1B policy was a departure from previous policies, favoring enforcement and control over efficiency. While it reduced fraud and backlog in some cases, it created huge problems for businesses that rely on global talent.

The repeated H1B petition processing suspensions and new requirements showed the administration’s intent to limit immigration even for highly skilled workers that are critical to U.S. economy.

Actions:

Increased Scrutiny

  • Tighter application reviews.
  • USCIS to approve visas only for “most skilled” or “highest paid” workers.

Higher Wage Requirements:

  • Employers had to pay higher salaries to prove job complexity and specialization.

More Denials:

  • H1B denial rates went from 6% in FY 2015 to 24% in FY 2018.
  • Denial rates are back to historic lows under Biden but could go up again.

Site Visits:

  • Increased investigations to ensure compliance, more administrative burden on employers.

No Deference:

  • USCIS stopped extending prior H1B approvals, employers had to resubmit extensive documentation for renewals.

Periodic Suspension of Premium Processing.

Blocked Entry:

Trump’s H1B Hypocrisy: Business vs. Politics

Former President Donald Trump has been a vocal critic of H1B visa program, has called it unfair to American workers and promised to reform it. But records show that Trump affiliated businesses, including his social media platform Truth Social and his son-in-law Jared Kushner’s investment firm have used the very program he complained about. This raises questions about his political rhetoric vs business practices.

Truth Social’s H1B Use

In June 2022, Trump Media & Technology Group (TMTG), the company behind Truth Social, filed an H1B application to hire a foreign worker. The application, later approved, was surprising given Trump’s history of opposition to the program.

Application Details

  • Position: Not disclosed, based in Atlanta.
  • Salary: $65,000 per year, the lowest wage level under H1B program.
  • Result:
    • Approved by U.S. Department of Labor.
    • TMTG later said they did not hire the worker and terminated the process in November 2022.

TMTG’s Statement

  • A company statement blamed “prior management”:
    • Quote: “The company has never hired — and has no plans to hire — an H1B visa program worker.”
  • But Devin Nunes, TMTG’s CEO and a Trump loyalist, was already the CEO when the application was filed.

H1B Use by Trump Related Entities

1. Trump’s Business

  • Before he was president, Trump’s businesses, including hotels, resorts and modeling agencies were frequent users of H1B program:
    • Hired foreign models and hospitality staff under the visa program.
    • Filed dozens of H1B petitions between 2009 and 2016.
    • H1B applications from Trump businesses stopped after 2017, during his presidency.

2. Jared Kushner’s Investment Firm

  • Kushner’s firm used H1B program. Unlike Truth Social’s $65,000 application, the firm offered $200,000 per year to hire a foreign associate, the highest wage level for the program.
  • The application was approved, in line with Trump’s promise of high wage, high skilled foreign workers.

Trump’s H1B Position

Trump has been a vocal critic of H1B program as bad for American workers. During a 2016 Republican primary debate, he called it “very bad” and “unfair” and said it allows companies to pay foreign workers less than American workers.

Quotes

2016 Debate:

  • Admitted his own businesses used the program but wanted to get rid of it.
  • Quote: “I frankly use [H1B], and I shouldn’t be allowed to use it. We shouldn’t have it.”

Policy as President:

  • Issued the “Buy American and Hire American” Executive Order in 2017, to reform and prioritize high wage, high skilled foreign workers.
  • Said the program was used by tech companies to replace American workers with cheaper foreign labor.

H1B 2025: TRUMP II WILL FOLLOW UP ON TRUMP I

Despite Trump affiliates’ use of H1B program, a second Trump term will likely revisit the policies to restrict and re-shape the H1B program.

Here’s what was attempted and what will return:

1. Higher Wages

What Happened:

  • In October 2020, DOL issued a rule to increase wages for H1B, H1B1, E-3 and PERM workers.
  • Employers were caught off guard and it was implemented immediately, causing chaos.
  • Employers had to pay software developers $208,000 in smaller cities, pricing out many businesses from hiring H1B workers.
  • The rule was blocked in court but showed Trump’s intent to price foreign workers out of the market.

What to Expect:

  • A second Trump administration will likely bring similar wage increase measures
  • Wage-Based Distribution System
  • A system that favors higher paying jobs, top tier foreign professionals and minimizes perceived competition with American workers.
  • Modeled after Project 2025, a conservative policy proposal, this system would turn H1B into an “elite” program, focusing on high wage, high skilled workers.
  • Higher wage thresholds will make hiring foreign workers more expensive, especially for entry level positions.
  • A revived wage rule would make it impossible for companies to sponsor H1B workers. Many skilled professionals would lose their jobs and have to leave the US.
  • H1B visas would be awarded to highest paid applicants, not through a random lottery.

Who Benefits:

  • Large corporations with higher wages.

Who Suffers:

  • Startups and small businesses can’t compete with high wages.
  • Entry level professionals and recent graduates.

2. Definition of Specialty Occupation

The October 2020 rule tried to restrict eligibility by requiring a degree in a very specific field for a job to be considered a specialty occupation.

Additional documentation was required for third party placements and approvals for such cases were limited to one year. It is crucial to separate enforcement against illegal immigration from the processes of legal immigration, highlighting the importance of programs like the EB-5 visa as tools for economic growth.

What to Expect:

  • Tighter eligibility criteria for industries like IT and consulting that use third party placements.

3. Wage-Based H1B Cap Selection

What Happened:

  • Proposed regulation prioritized H1B lottery selection by wage level, higher paying roles first.
  • Entry level and newly graduated international students were hit the hardest.
  • The rule was blocked in court but it’s still a direction of policy.

What to Expect:

  • Wage-based prioritization will severely limit opportunities for early career professionals and entry level hires.

4. Deference Policy

What Happened:

  • In 2017, USCIS stopped giving deference to prior approvals during extensions and RFEs increased and denials skyrocketed.
  • It created uncertainty and disrupted business operations.
  • Reinstated under Biden administration, the deference policy is a memo not a regulation.

What to Expect:

  • A second Trump administration will likely rescind the policy and create more uncertainty.

5. Stricter Employer-Employee Relationship

What Happened:

  • The October 2020 rule required employers to show direct control over H1B workers, making it harder for placements at client sites.
  • The rule limited H1B visas for workers at client sites to one year (previously three years).

What to Expect:

  • A second Trump administration will likely bring back the previous restrictions on H1B workers at third party sites.
  • For employers, it will add administrative and legal burden, especially for IT and tech companies that use project based or contract labor. It will increase costs for frequent renewals and make it less viable for employers to place workers at client sites.
  • For employees, it will create uncertainty and instability for H1B visa holders at client sites, they will have to renew their status every year. It will reduce opportunities for workers in industries where short term project based assignments are common, like IT consulting.

H4 Work Authorization at Risk

Trump’s Previous Attempts

2025 Likely Changes

Repeal of H4 EAD Rule:

  • A second Trump administration will rescind the rule and many spouses will not be able to work.
  • Families will face financial stress and many professionals will re think staying in the U.S.

Processing Delays:

  • Administrative tactics like requiring new biometrics can extend H4 renewals to over a year without any policy change.

Who will be affected?

  • Professionals in Backlogged Green Card Categories:
    • Indian and Chinese nationals who wait decades for green cards.
  • High Skilled Spouses:
    • According to National Foundation for American Policy, 90% of H4 spouses have bachelor’s degree and 50% have graduate degree, they are valuable contributors to the US workforce.

H4 Spouse Administrative Burdens

Trump’s First Term: A Sample

  • Biometric Requirements:
    • USCIS introduced a rule requiring H4 spouses to submit fingerprints and other biometrics for EAD renewals and created delays.
  • Processing Delays:
    • Lawsuits showed that simple processes that took 12 minutes under normal circumstances were stretched to over a year.
  • Intentional Hurdles:
    • USCIS policies seemed designed to discourage H4 spouses from getting work authorization and many lost their jobs.

Legal Challenges and Reforms

  • Edakunni v. Mayorkas
  • In a lawsuit, over 40 companies including Amazon, Google and Apple supported bundling H4 EAD applications with H1B extensions to speed up processing.
  • The resulting settlement reversed some of these delays but a new administration can bring back similar hurdles.

Other Potential H1B Policies in Trump II

No one has a crystal ball to see the future but here are some potential changes to the H1B visa program in the next Trump administration:

Changes

More Requests for Evidence (RFEs) and Denials

  • Higher scrutiny will increase costs and delays especially for tech companies that rely heavily on H1B talent.

More Site Visits:

  • More investigations to ensure compliance will add to the administrative burden for employers.

Suspension of Premium Processing

  • As seen in 2017, 2018 and 2019, Trump can suspend premium processing for H1B visas and we will see longer wait times and hiring challenges.

Entry Blocked

A new Trump administration can expand these restrictions to block:

  1. New H1B workers from entering the U.S
  2. Families of H1B workers from joining them
  3. H1B workers from entering the U.S after traveling abroad

Buy American, Hire American (BAHA) Policies:

  • Visa approvals will be evaluated against U.S workers.

Longer Processing Times:

  • Operational changes within immigration agencies will lead to more procedures, longer processing times and higher denial rates. H, L and O visa petitions and others will see more scrutiny and RFEs.

More Biometric Requirements:

  • Dependents applying for visa extensions will face new requirements.

Reinstated Travel Bans and Extreme Vetting:

  • Some countries will see longer visa issuance times.

Extension Denials

  • Under Trump, H1B extension denial rates went from 3% to 12% and many workers had to go back to their home countries.
  • Mandatory interviews for employment based green cards.
  • Higher Costs for Employers.
  • Expect higher filing fees and compliance costs, more financial burden on small and mid-sized companies.

Stricter Cap Enforcement:

  • Trump administration can enforce stricter limits on the annual cap and reduce the number of visas approved.

International Students: Changing Landscape

International students will face more regulations, employment and mobility will be impacted.

Proposals

OPT restrictions:

  • 24 month STEM OPT extension may be eliminated.
  • Third party site work for OPT students may be prohibited.

“Unlawful Presence” policies tightened:

  • Falling out of status will have harsher consequences, complicating school transfers.

Green Card proposals for graduates:

  • Mentioned during the campaign, but will require legislative action, so uncertain.

Impact on International Students:

  • Students who transition to H1B within the U.S will avoid some restrictions but will face challenges if they go out and try to come back.

Worksite Enforcement: Back in Focus

Employers be prepared for more audits, raids and compliance checks.

Expected Actions

I-9 and E-Verify Audits:

FDNS Site Inspections:

  • Unannounced visits to employer and third-party sites will increase, targeting immigration fraud.

Wage and Hour Audits:

  • Departments overseeing H1B, H2A and H2B programs will enforce wage and work condition standards more aggressively.

DOJ Investigations:

Impact on Businesses and Workers

For Businesses

Startups and Small Firms will be at a Disadvantage:

  • Smaller companies which offer lower starting salaries will struggle to compete for foreign talent under a wage based allocation system.

Hiring/Planning Delays:

  • Longer adjudication times will force companies to look elsewhere, offshore or hire remote workers. Employers will face uncertainty in hiring timelines and will have to adjust their recruitment and workforce planning.

Higher Costs:

  • Higher wages, higher legal fees and compliance costs will go up, smaller employers will be discouraged to sponsor H1B visas.

Reduced Access to Talent:

  • Stricter eligibility rules will limit hiring flexibility. Risk of losing skilled workers to other countries with more welcoming immigration policies like Canada and Australia, especially in STEM and healthcare fields. Reduced ability to attract and retain global talent will hurt U.S. innovation and competitiveness in the global market.

Business Disruption:

  • Delays and more RFEs will disrupt operations.

Entry Level Talent Shortage:

  • Wage based prioritization will disadvantage recent graduates.

For Workers

Job Security at Risk:

  • Higher denial rates and administrative hurdles will make it harder for H1B workers to maintain status.

Limited Career Growth:

  • Wage based prioritization will favor senior professionals, sideline younger workers and new graduates.

More Denials

  • More documentation and stricter definitions will increase denial rates for H1B applicants.

Wage Inflation

  • Higher minimum salaries will make it less viable for many U.S. companies, especially small and mid-sized businesses to hire foreign born professionals.

Delayed Processing

  • More scrutiny will lead to longer wait times for approvals and disrupt project timelines and job opportunities.

Reduced Opportunities

  • Restricting OPT programs and international student pathways will discourage foreign born students to pursue education and employment in the U.S.

Family Disruption:

  • Making H1B process more unpredictable will stress H1B workers and their families. Revoking H4 EADs will put financial strain on dual income families and add more stress to H1B workers. Psychological and financial stress due to prolonged uncertainty.

Impact on U.S. Economy

The new administration will argue that restrictive H1B measures are needed to protect American jobs, but critics warn of the long term consequences:

  • Talent Shortage: Technology and healthcare industries will struggle to find skilled workers.
  • Global Competitiveness: Restrictive immigration policies will deter top global talent, benefitting countries like Canada and UK.
  • Economic Contributions: International students and workers contribute billions to U.S. economy through tuition, taxes and innovation.

What Can Employees Do to Mitigate H1B restrictions?

Do Now:

  • File for extensions, green cards or H4 EAD as soon as possible to avoid restrictions.

Stay Updated:

  • Follow immigration policy changes and consult with attorneys.

Explore Options:

  • Consider switching to O-1 or explore permanent residency options (like EB-5 investment green card which allows for concurrent I-485 filing as soon as possible). During Trump’s first term, stricter H1B policies led some foreign workers to explore the EB-5 program.

Legal Expertise:

  • Work with attorneys to navigate these changes.

What can Employers do to mitigate H1B restrictions?

Here are some tips for employers to attract and retain foreign born talent and prepare for aggressive DHS enforcement:

  • File Now: File applications, extensions and green card petitions well in advance of deadlines to avoid delays. Fast track eligible H1B petitions before new rules take effect.
  • Review Job Descriptions: Make sure they meet stricter definitions.
  • Compensation: Get ready for higher wage requirements.
  • Explore Options: Look into other visa options for employees who no longer qualify under new H1B rules. O-1, L-1 or green cards.
  • Document the job is specialized: Employers may need to provide more evidence of the role’s requirements. Enhance Documentation: Make sure all filings are detailed and error free and robust.
  • Plan for OPT restrictions: Identify ways to transition OPT employees to long term visa options.
  • Internal Audit: Review I-9 and E-Verify records for compliance. Make sure job descriptions and compensation packages match new requirements. Prepare documentation to prove specialty occupation.
  • Vendor Compliance: Ensure electronic I-9 systems meet DHS standards.
  • Train Staff: Educate HR and IT on compliance.
  • Document Everything: Keep files ready for audit for visa sponsored employees.
  • Budget: Plan for increased costs for filing fees, wage mandates and legal compliance.
  • Contingency Planning: Consider offshoring or hiring remote workers to mitigate talent shortage risk. Identify roles that can be filled by domestic talent or through alternative recruitment strategies.
  • Support affected employees: Provide resources and legal assistance to H1B workers and their families.
  • Advocate: Join industry groups pushing for balanced and fair immigration policies.
  • Stay Updated: Follow policies to minimize disruption to foreign born employees. Follow policy changes closely, especially from the current administration. Anticipate and plan for changes and adjust hiring accordingly.
  • Legal Expertise: Work with attorneys to navigate these changes. Consult with immigration attorneys to stay updated on policy changes. Conduct training for HR teams on compliance and best practices.

Who is Stephen Miller, the H1B Architect?

Stephen Miller, one of Donald Trump’s most loyal advisors, has been reappointed as Deputy Chief of Staff for Policy after Trump’s 2024 re-election. Known for his anti-immigration stance, Miller’s influence on US immigration policies will be bad news for Indian tech professionals and other foreign workers in the US. Here’s a deep dive into Miller’s policies, his impact on H1B visa program and what’s to come.

Who is Stephen Miller?

Bio:

  • Born August 23, 1985 in Santa Monica, California. Raised in a conservative Jewish family.
  • Education at Duke University solidified his reputation as a conservative voice, he was an active debater and writer for campus publications.

Political Career:

  • Early roles included press secretary for Reps Michele Bachmann and John Shadegg.
  • He rose to fame in 2016 as a senior policy advisor for Trump’s presidential campaign and later as a senior advisor and speechwriter during Trump’s first term.

Notable work:

  • Architect of key immigration policies including travel ban on Muslim-majority countries and family separation policy.
  • After administration he founded America First Legal, a group advocating for conservative legal principles.

Miller back at the White House

  • In his new role he will oversee policy with a big focus on immigration and national security.
  • Along with Tom Homan, Trump’s pick for “Border Czar”, Miller will implement tough immigration policies including H1B visa and deportation policies.

Miller on H1B Visas

Stephen Miller has been critical of H1B visa program, saying it displaces American workers and suppresses wages. His influence has led to several H1B targeted policies:

  1. Stricter Eligibility Criteria
    • Narrowing Specialty Occupations:
      • During Trump’s first term, policies changed the definition of “specialty occupations” making it harder for professionals to get H1B visas.
      • Jobs requiring general degrees like computer programming faced more scrutiny.
    • Increased Denials:
      • Denial rates for H1B visas went up under Miller’s influence creating chaos for employers and employees.
  2. Higher Wages
    • Cruz-Sessions Bill Influence:
      • Miller supported policies requiring H1B workers to meet a high wage threshold, like $110,000 a year, making many professionals unaffordable for the US labor market.
      • This would disproportionately impact entry level and mid level roles which are often filled by Indian professionals.
  3. Restrictions on OPT and International Students
    • Targeting OPT Programs:
      • Miller backed policies to restrict Optional Practical Training (OPT), which allows international students to work in the US after graduation.
      • Proposals included requiring students to leave the US for 10 years before reapplying for work visas.

Stephen Miller: Personal Life and Controversies

Family:

  • Married to Katie Waldman, former press secretary to Vice President Mike Pence, with three kids.

Controversies:

  • Miller has been under public fire, including leaked emails in 2019 showing him promoting white nationalist content.
  • Despite all this he is still a big name in conservative circles.

How does H1B Program Work?

The H1B visa program has been a part of US immigration policy for decades, allowing employers to hire foreign professionals with specialized skills in fields like science, technology, engineering and mathematics (STEM).

Despite its importance in filling workforce gaps and driving economic growth, the program faces challenges of limited supply, administrative burden and changing policies. Here’s a detailed explanation of the program, its process and its impact on US economy.

What is H1B Visa?

H1B is a nonimmigrant visa that allows US employers to hire foreign professionals for specialty occupations.

Key Facts

Eligibility:

  • Jobs must be specialty occupations, typically requiring at least a bachelor’s degree or equivalent experience.
  • Industries include information technology, engineering, mathematics, healthcare and academia.

Duration:

  • Initial visa validity: 3 years.
  • Extensions: Can be extended up to 6 years, and additional years for green card applicants facing backlogs.
  • Dependents: H1B visa holders’ spouses and children can enter the US on H4 visas, and some spouses can get employment authorization (H4 EAD).

What is H1B Visa?

Step 1: Labor Condition Application (LCA)

Before filing H1B petition, employers must file an LCA with the Department of Labor (DOL) and make the following attestations:

  • The hiring will not displace US workers.
  • The employer is offering the prevailing wage or higher for the area and position.
  • Existing employees are notified of the intent to hire an H1B worker.

Step 2: USCIS Registration and Petition

  1. Electronic Registration:
    • Introduced in 2020 to simplify the process and reduce paperwork.
    • Employers register foreign nationals for H1B lottery before filing a full petition.
    • Registration fee will increase to $215 per entry in FY 2026.
  2. Lottery:
    • If registrations exceed the cap, a random lottery will determine who can move forward.
    • Cap Breakdown:
      • 65,000 general visas.
      • 20,000 advanced degree visas for US graduates (master’s or higher).
  3. Filing the Petition:
    • Employers with selected registrations submit detailed petitions, including proof of the job’s specialty and foreign national’s qualifications.

Recent Changes to the Registration System

Beneficiary-Centric Approach (Introduced in FY 2025)

  • Replaces the old employer-centric system.
  • Prevents abuse by not allowing duplicate registrations for the same individual.
  • Impact:
    • Reduced attempts to game the system.
    • Fairer distribution of visas across unique beneficiaries.

Challenges and Statistics

High Demand vs. Low Supply

  • The cap is always oversubscribed, demand far exceeds supply.
  • FY 2025:
    • 470,342 registrations, down from 758,994 in FY 2024 (beneficiary-centric system impact).
    • Only 114,017 were selected in the lottery.

Denial Rates Over Time

  • Under Trump:
    • New H1B petition denial rates were 24% in FY 2018, 14% in FY 2017 and 6% in FY 2015.
  • Post-Trump:
    • Denial rates dropped to 2% in FY 2022, the lowest ever, due to policy changes and legal settlements.

COVID-19 Impact

  • H1B admissions were 601,594 in FY 2019, 148,603 in FY 2021 (pandemic travel restrictions).
  • By FY 2023, admissions were 755,020 (travel restrictions eased).

H1B Economic Contributions

Filling Labor Gaps

  • Skill shortages: H1B workers fill the talent gap in STEM fields.
  • Unemployment Trends:
    • Occupations with high H1B hiring (IT and engineering) have low unemployment rates even during recessions.

Boosting US Innovation

  • H1B professionals contribute to technological advancements:
    • More patent filings and research.
    • More venture capital funding for startups with H1B workers.
    • Growth, IPOs and acquisitions.

Economic Growth

Wages:

  • 2021 H1B median wage: $108,000.
  • US national median wage: $45,760.

Regional Impact:

  • Major cities like New York City and Silicon Valley benefit the most from H1B talent.

Consumer Spending:

  • H1B workers drive demand for housing, goods and services and boost local economies.

H1B Myths Debunked

Myth 1: H1B workers take jobs from US citizens

  • Fact: H1B workers fill jobs that would otherwise be unfilled by US workers.
  • Study: H1B hiring correlates with lower unemployment in the industry.

Myth 2: H1B workers are underpaid

  • Fact: Employers must pay the prevailing wage or higher.
  • 78% of H1B workers earned above the DOL prevailing wage for their job in 2019.

Myth 3: H1B workers hurt the economy

  • Fact: Immigrant workers drive growth through spending, innovation and job creation.

Long term challenges for the program

Green Card Backlogs

  • Impact:
    • Indians and Chinese face multi-decade waits for employment based green cards.
    • Many H1B workers have to extend their visas multiple times creating uncertainty for themselves and their employers.

Policy Changes

  • Wage mandates or stricter selection criteria may deter employers from participating in the program.
  • Higher costs and administrative burden may force companies to move jobs offshore.

FAQs: H1B Policy Changes in 2025

General

H1B Visa Holders and Applicants

Employer Specific

Overall Impact on the Workforce

Unusual Questions and Situations

How to Minimize Risks

Get Ready for a Tougher Landscape

Trump back in the White House means big trouble for H-1B workers and their families – H-4 work authorization could be gone, visa requirements could get stricter and processing times could get longer. Employers and workers need to act now by staying informed, filing early and seeking legal advice.

By preparing now you can minimize the disruption and continue to succeed in the changing legal immigration landscape.

Helpful Resources

Stay informed, stay tuned and prepared to mitigate any disruptions to your immigration journey.

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

Can Trump Take Away My Citizenship?

Trump’s Immigration Crackdown: Denaturalization is Back

President-elect Donald Trump has doubled down on one of his most outrageous campaign promises: deporting 15 million people, including some who are already naturalized U.S. citizens. While it may be virtually impossible to implement Trump’s grandiose ambitions due to the logistical and financial challenges of deporting millions, his administration will still devastate countless lives, including those who thought their citizenship was forever.

Among the tools at their disposal is the obscure judicial process of denaturalization—revoking citizenship granted to immigrants—making naturalized Americans deportable.

Going Beyond Terrorism and War Crimes

Becoming a naturalized U.S. citizen is supposed to mean you get all the rights and protections of citizenship. But the Department of Justice (DOJ) can take that away if they can prove fraud or misrepresentation during the naturalization process.

Historically, it was used sparingly and only in extreme cases, like targeting people with ties to terrorism, war crimes, or human rights violators who may have concealed such backgrounds.

Under the first Trump administration, this rarely used power is getting new attention, and what does it mean to be “truly American” and naturalized citizens are getting nervous.

This is a big expansion of immigration enforcement and has huge implications for immigrant communities and the entire legal system.

Most naturalized citizens will not be affected by Trump’s renewed efforts to denaturalize.

Who’s at Risk?

But those who naturalized by providing false material information (like not disclosing criminal history or obtaining citizenship under false identity) will be at greater risk.

Likely Targets:

  • Those who didn’t disclose past deportation orders or criminal convictions.
  • Those who naturalized under false identities.
  • Naturalized citizens who committed crimes before they were citizens (and didn’t disclose).

What is Denaturalization?

Denaturalization is the legal process of taking away an individual’s U.S. citizenship. Established in 1906, this process allows the government to revoke citizenship if it was obtained by fraud, misrepresentation, or material omission that would have precluded naturalization.

This process allows authorities to strip citizenship from individuals who:

  1. Illegally Obtained Citizenship: Failing to meet the requirements.
  2. Committed Fraud or Misrepresentation: Hiding or lying about material facts in the naturalization process.

Denaturalization requires the government to prove an individual obtained citizenship by fraud or misrepresentation. Specifically:

  1. Willful Concealment: The applicant intentionally misrepresented or withheld information.
  2. Material Fact: The concealed fact would have made them ineligible for naturalization.

Until the first Trump administration, naturalization was rare and historically targeted serious offenders like war crimes or terrorism.

But someone like Elon Musk, whom many have speculated about his immigration journey, including allegations of working illegally on a student visa, could theoretically be at risk of denaturalization if he illegally worked in the U.S. while on an F-1 student visa, if he intentionally lied about that work, and if that unlawful employment would have made him ineligible for his green card and therefore citizenship.

Fear is part of the strategy

While denaturalization cases are few, the denaturalization efforts may be part of a broader strategy to scare immigrant communities and deter naturalization.

What’s next for immigration under Trump?

Experts say a second Trump administration will double down on policies to reduce both legal and illegal immigration.

Expected tactics

  1. Supercharged Denaturalization: Will expand despite the small number of cases compared to overall immigrant population.
  2. Legislative Changes: Will try to limit family-based immigration and visa programs.
  3. More Enforcement: More focus on investigating old applications for fraud.

How Denaturalization Works

Investigation:

Federal authorities review visa and citizenship applications for inconsistencies, inaccuracies, or omissions.

“Material” misstatements—those that if known would have prevented the applicant from becoming a citizen—are grounds for denaturalization.

Filing a Case:

  • Denaturalization cases are filed in federal court where the government must prove its claims. Unlike criminal cases, defendants do not have the right to appointed counsel.

Outcome:

If successful, citizenship is revoked and the individual reverts to their prior immigration status. In most cases, this makes them deportable.

Denaturalization Facts

  • Denaturalization does not result in deportation. Instead the individual reverts to their prior immigration status, such as a green card holder. But green card holders can be deported for certain crimes.
  • The DOJ must prove its case in federal court as denaturalization requires judicial approval.
  • As mentioned above, this process has historically been reserved for the most serious cases, such as terrorism, war crimes or significant fraud.

Why Naturalized Citizens?

Under Trump’s plan, naturalized citizens are not exempt from the administration’s broader deportation plans. Trump administration officials, particularly Stephen Miller, have been saying they will use denaturalization to expand enforcement beyond undocumented immigrants, idealizing past immigration policies from the 1920s to emphasize a cultural element in defining true membership in America.

The Strategy

  • Expand Enforcement: Trump’s team will investigate tens of thousands of naturalized citizens for revocation.
  • Broaden Criteria: No more limitations on cases. Even small mistakes on applications will be grounds for denaturalization.
  • Revive “Operation Second Look”: This from Trump’s first term will supercharge denaturalization by reviewing old cases for any discrepancies, regardless of intent or harm.

The Philosophy

Stephen Miller, the architect of Trump’s immigration policies, has called for a “supercharged” denaturalization process. He says every inconsistency, no matter how small or unintentional, should be scrutinized to see if citizenship was granted improperly. His phrase “America is for Americans only” is a deeply exclusionary approach to immigration.

Denaturalization Consequences

The effects of denaturalization go far beyond the individual who loses citizenship. The ripples impact families, communities and the very fabric of U.S. immigration policy.

  1. Individual Consequences
    • Loss of Citizenship: Revocation makes individuals deportable and strips them of their rights and privileges as U.S. citizens.
    • Legal Vulnerability: Without citizenship individuals can’t vote, hold certain jobs or sponsor family members for immigration.
    • Financial Burden: Defending against denaturalization requires expensive legal representation which many can’t afford. Without guaranteed counsel defendants are at a huge disadvantage.
  2. Family Consequences
    • Naturalized Children: Minors who became citizens through their parents’ applications will lose their status if their parents are denaturalized.
    • American Born Children: Trump has promised to end birthright citizenship so children born to immigrant parents will be stateless if their parents are denaturalized.
  3. Psychological Harm
    • Even if you successfully defend your citizenship the process causes lasting harm:
      • Stress and Fear: The possibility of losing your citizenship erodes your sense of belonging and security.
      • Second Class Citizenship: Millions of naturalized Americans will start to feel like second class citizens, unsure of their status. The fear of denaturalization will erode their sense of permanence and equality.
  4. Wider Social Consequences
    • As journalist Masha Gessen has written, a mass denaturalization campaign will create a system where immigrants live under constant suspicion, undermining trust in the U.S. immigration process and the American dream.

Why Should All Americans Care?

Denaturalization raises the question: what does it mean to be American and is citizenship really permanent?

  1. Citizenship as a Firewall
    • Citizenship has always been seen as a barrier to deportation and a sign of full membership in American society. This effort blows that firewall apart.
  2. Immigration Policy
    • The Trump administration’s rhetoric ties Americanness to culture or race, just like the restrictive immigration policies of the early 20th century. Critics say this undermines the idea of America as a nation of immigrants.
  3. Second Class Citizens
    • Masha Gessen, a journalist and critic, says the denaturalization task force is telling naturalized citizens they are “second class citizens” living under a cloud of conditional acceptance.

History

Denaturalization has a long and uneven history in the United States. Understanding its past helps us understand the current threat to naturalized citizens.

1906 to Mid 20th Century: Setting the Precedent

  • It was first codified in 1906 to revoke citizenship obtained by fraud.
  • Denaturalization peaked during the World Wars and early Cold War.
  • It was often used for political reasons, targeting individuals accused of disloyalty or radical political activity. For example:
  • Emma Goldman, an anarchist and pacifist, was denaturalized during World War I for opposing the war.
  • Naturalized citizens who joined Communist or Nazi organizations were denaturalized in the 1930s and 1940s.

Late 20th Century: Targeted Use

  • Denaturalization was rare and focused on:
  • War criminals
  • Terrorists
  • Human rights abusers
  • Cases required evidence of deliberate fraud that would have prevented naturalization.

Post 1967 Restrictions

  • The Supreme Court’s decision in Afroyim v. Rusk (1967) held that citizenship is a right, not a privilege and can’t be revoked for post naturalization behavior. Denaturalization could only be pursued if citizenship was fraudulently obtained in the first place.

21st Century: New Focus

  • Under the Obama administration denaturalization was rare but used for severe cases, such as individuals concealing violent criminal histories.
  • Example: Rasmea Odeh who failed to disclose a bombing conviction in Israel lost her citizenship.

Trump’s First Term: Operation Second Look

  • Trump’s Department of Justice expanded denaturalization efforts big time.
  • Key Moves:
    • Hired dozens of new agents to review naturalization applications.
    • Increased cases from a few dozen a year to thousands.
    • Targeted individuals whose infractions caused little or no harm.

Biden Administration’s Response

On February 2, 2021 President Joe Biden signed an executive order to review and potentially reverse denaturalization. The order directed the attorney general and secretaries of state and homeland security to:

  • Review Policies and Practices: Not use denaturalization and passport revocation excessively or unfairly.
  • Promote Fairness: Re-examine denaturalization cases from the Trump era to see if they met the principles of justice and due process.

Advocacy and Reform

  • Immigrant rights orgs called it a “good first step” but said more is needed to restore trust in the system.
  • Advocates are calling for:
    • Full reversal of denaturalization policies from the Trump administration.
    • More transparency and oversight to prevent denaturalization abuse in the future.

Trump’s Denaturalization Task Force

During Trump’s first term denaturalization efforts expanded big time with resources shifted to review old naturalization cases for fraud. This included high profile initiatives like Operation Janus and Operation Second Look to find cases where individuals may have hidden information during the naturalization process.

In June 2018 USCIS Director L. Francis Cissna announced the creation of a denaturalization task force to investigate naturalized citizens. This was an expansion of Operation Janus, a long running program to target individuals who obtained citizenship fraudulently.

What is Operation Janus?

  • Began in the 2000s Operation Janus reviewed hundreds of thousands of naturalization files to find individuals with past deportation orders or criminal records under other names.
  • In 2017 the DOJ filed its first lawsuits under this program against individuals who used fake identities to get citizenship.
  • The denaturalization task force is an expansion of these efforts, targeting thousands of cases found by Operation Janus.

Trump’s first administration diverted resources from new immigration applications to old cases:

Trump Era

  • 2018: Then-USCIS Director Francis Cissna said they would refer 1,600 naturalization fraud cases to the DOJ.
  • 2019: ICE shifted over $200 million to denaturalization efforts.
    • Operation Janus uncovered old fingerprint files and found 858 cases of individuals who got citizenship despite having prior deportation orders or criminal records.
  • 2020: The DOJ launched a denaturalization initiative and filed cases in federal court.
    • Statistical Context:
    • Between 2008 and 2020 the DOJ filed 228 denaturalization cases, 94 of them during the first three years of Trump’s presidency.
    • Denaturalization became harder to prove after the Supreme Court’s 2017 decision in Maslenjak v. United States which raised the standard of proof for fraud in naturalization applications.

Case Study: Norma Borgono

One example of denaturalization under the Trump administration is Norma Borgono, a 63 year old Peruvian grandmother living in Miami. She became a U.S. citizen in 2007 but was later implicated in a mail fraud scheme through her work. Although she cooperated with authorities and did house arrest, the DOJ said she failed to disclose the criminal activity during the naturalization process. That omission, according to the government, was fraud and made her citizenship invalid.

This case shows how far the administration is willing to go, focusing on past crimes or omissions even if they weren’t intentional or material to the naturalization process.

Trump’s Expanded Approach

Previous administrations focused on national security and human rights cases. Trump’s administration expanded denaturalization to include crimes that occurred before naturalization but weren’t disclosed during the application process. This has a chilling effect on naturalized citizens.

Trump

  • Broader Targets: Cases include individuals with lesser offenses such as omissions of minor past crimes or activities unrelated to their citizenship eligibility.
  • More Resources: The task force hired more attorneys to review naturalization files, to prosecute thousands of cases.
  • Expanded Definition of Fraud: Unintentional errors or omissions are being looked at for materiality.

Chilling Effect on Naturalization

Immigrant advocacy groups, including the ACLU, said the increased scrutiny would deter eligible green card holders from applying for citizenship, fearing retroactive investigations.

The Human Cost of Denaturalization and Immigration Policies

While the number of denaturalization cases is small, the human impact is big:

  • Fear Among Immigrants: Increased investigations are causing anxiety among naturalized citizens, even those with minor errors in their applications.
  • Family Separation: Restrictive policies are hitting immigrant families hard, delaying reunification and causing emotional trauma.

Long Term

  • Over time these policies could reduce immigration by tens of millions, changing the demographic and economic fabric of the U.S.

Trump Immigration Policies and Their Legacy

The Denaturalization Section was one of several controversial initiatives under the Trump administration’s broader anti-immigration agenda which included:

  • Travel Bans: Restricting entry from predominantly Muslim countries.
  • Family Separation: Enforcing policies that separated children from their parents at the border.
  • Asylum Restrictions: Implementing policies that severely limited the ability to claim asylum in the U.S.

Denaturalization fit into this pattern by targeting naturalized citizens, a group previously considered secure in their immigration status.

Threat to Birthright Citizenship

In addition to denaturalization, Trump has promised to end birthright citizenship, a constitutional right under the 14th Amendment. This would undermine the legal foundation of citizenship for children born in the U.S., further destabilizing immigrant families.

Consequences

  • Millions of U.S. born children could have their citizenship challenged if Trump’s policies succeed.
  • This would create stateless individuals, contrary to international law and human rights.

Immigration Policies in a Second Trump Term

Denaturalization is just one piece of the Trump administration’s overall plan to reduce immigration. Other likely actions:

  • Blocking Green Card Categories: Eliminating visa programs like the diversity lottery which brings in 50,000 immigrants a year.
  • Slowing Application Approvals: Increased scrutiny and bureaucratic hurdles for legal immigration applications.
  • Family-Based Immigration: Measures that could leave many Americans unable to sponsor family members for green cards.

Social and Political Consequences

  • Disappointed Sponsors: Many Americans trying to sponsor family members will be delayed or denied.

Labor Market

A smaller labor force could worsen existing shortages in healthcare, agriculture and construction

Economic and Demographic Impact

Economic Impact

  1. Labor Force Growth:
    • Immigration has driven U.S. labor force growth, a major driver of economic growth.
    • The combination of Trump’s policies and the pandemic between 2016 and 2022 already reduced GDP growth by 1.3 percentage points, according to a study by the National Foundation for American Policy (NFAP).
  2. Employers and Consumers:
    • Employers will have trouble filling key positions due to labor shortages.
    • Consumers will have reduced access to services provided by immigrant workers.

Limiting both legal and undocumented immigration will slow overall economic growth and disrupt sectors that rely on immigrant labor.Robert Lynch, economics professor at Washington College

Tools to Stop Denaturalization

Defending Citizenship

Fighting denaturalization is hard. The system is stacked against you. The government has the upper hand.

No Right to Counsel

Unlike criminal cases, denaturalization cases do not provide legal representation. Many defendants, unaware of the legal process, can’t mount a proper defense and will lose their citizenship.

Burden of Proof

While the government must prove fraud, the complexity of immigration law leaves individuals vulnerable to accusations based on minor errors or omissions.

Costs

Legal fees to defend against denaturalization can be tens of thousands of dollars, out of reach for many.

Legal and Practical Implications

  1. What is “Material Fraud”?
    • The Supreme Court in 2017 in Maslenjak v. United States ruled that only lies or omissions that would have prevented naturalization at the time can justify denaturalization. This limits the government’s ability to strip immigrants of citizenship for minor mistakes. The Supreme Court limited the government’s ability to revoke citizenship by requiring proof of material fraud for denaturalization. Courts can be a check on overreach if they follow this standard.
  2. Advocacy
    • Organizations must educate the public about denaturalization and provide resources to those affected.
    • More free or low-cost legal services is key to a fair trial.
  3. Community Support
  4. Legislation
    • Congress can pass laws to limit denaturalization and protect naturalized citizens from overreach.

Denaturalization Deep Dive

Denaturalization, the process of revoking U.S. citizenship from naturalized citizens, has been rare. Between 1990 and 2017 an average of 11 cases were pursued annually. But under Trump, that number has skyrocketed with a big increase in government resources and the creation of new offices and initiatives.

This guide explains the denaturalization process, the legal basis, recent developments and the implications for immigrants and the immigration system.

What is Denaturalization?

Denaturalization is the legal process of revoking a naturalized U.S. citizen’s citizenship. This can happen if the government proves the individual was not eligible for naturalization at the time it was granted or obtained citizenship through fraud or misrepresentation.

Legal Standards

  • Government must meet high burden of proof:
  • Civil cases: Clear, convincing and unequivocal evidence.
  • Criminal cases: Beyond a reasonable doubt.
  • Denaturalization cases must go through federal court so there is judicial oversight.

Grounds for Denaturalization

Denaturalization is governed by specific sections of U.S. law that outline when citizenship can be revoked:

  1. Illegal Procurement or Fraudulent Misrepresentation
    • Statute: Immigration and Nationality Act (INA) § 340(a).
    • Criteria:
      • Citizenship was procured illegally or through concealment of a material fact, leading to the potential for citizenship annulled.
      • Willful misrepresentation that affected the naturalization decision.
    • Examples: Falsifying personal information, omitting past crimes or using false identities.
  2. Naturalization Fraud Convictions
    • Statute: 18 U.S.C. § 1425.
    • Criteria:
      • Convicted of procuring or attempting to procure naturalization contrary to the law.
    • Examples: Submitting fake documents or bribing officials during the application process.
  3. Wartime Military Service
    • Statute: INA § 329(c).
    • Criteria:
      • Naturalization through wartime military service can be revoked if the individual is discharged under “other than honorable conditions” within five years.
    • Example: Falsifying enlistment qualifications to get expedited citizenship.
  4. Refusing to Testify Before Congress
    • Statute: Proviso to INA § 340(a).
    • Criteria:
      • A Cold War-era provision allowing denaturalization for refusing to testify about alleged subversive activities before Congress.
    • Example: Used historically against suspected communists.

Initiatives and Developments

  1. Operation Janus
    • Launched: 2010.
    • Goal: Identify individuals who obtained citizenship or legal permanent residence under false identities or with prior deportation orders.
    • Findings:
      • A 2016 DHS OIG report found:
        • 1,029 naturalized citizens with deportation orders under different identities.
        • 315,000 missing fingerprint records for non-citizens with criminal convictions or final deportation orders.
        • 148,000 old fingerprint cards not digitized or reviewed by ICE.
  2. Operation Second Look
    • Launched: 2016.
    • Goal: Expanded naturalization case audits to find discrepancies or fraud.
    • Results: Denaturalization referrals increased 600% between 2017 and 2020.
  3. Denaturalization Section
    • Created: February 2020.
    • Location: Within the DOJ’s Office of Immigration Litigation.
    • Mission:
      • Prioritize and handle denaturalization cases.
      • Investigate and litigate citizenship revocation.
      • This is a big increase in denaturalization capacity.

Denaturalization Results

  1. Current Numbers
    • Despite all the focus and resources, the number of individuals denaturalized is still very small:
    • USCIS was going to refer 1,600 cases to the DOJ for prosecution.
    • Between 1990 and 2017, an average of 11 cases per year were pursued.
  2. Systemic Issues
    • Chilling Effect: The increased scrutiny may deter legal permanent residents from applying for citizenship, fearing retroactive investigations.
    • Increased Delays: Diverting resources from application processing to investigations adds to an already overwhelmed immigration system.
  3. Bigger Picture
    • Advocates say these efforts create a climate of fear and mistrust in immigrant communities.
    • Critics argue this is part of a broader effort to limit immigration and discourage naturalization applications.

The Denaturalization Process

  1. Investigation
    • USCIS or ICE finds fraud or misrepresentation in an individual’s naturalization process.
    • Audits of old files (e.g. Janus and Second Look) often trigger investigations.
  2. Referral
    • Cases are referred to the DOJ Denaturalization Section for review and prosecution.
  3. Filing
    • DOJ files a civil or criminal case in federal court, stating the grounds for denaturalization.
  4. Court Proceedings
    • Individual can contest the government’s claims.
    • The government must meet high burden of proof.• The government must meet high burden of proof.
  5. Result
    • If denaturalization is granted, citizenship is revoked and the individual reverts to their prior immigration status (e.g. lawful permanent resident).
    • If no other status applies, the individual may be deported.

Legal Protections and Obstacles to Denaturalization

Supreme Court Cases

  • Maslenjak v. United States (2017): The Supreme Court held that small mistakes or irrelevant statements cannot be used to denaturalize unless they were material to the naturalization decision.

Evidence Standards

  • Denaturalization requires clear and convincing evidence in civil cases or beyond a reasonable doubt in criminal cases. These high standards are a check against arbitrary or abuse of denaturalization power.

Denaturalization in Civil Cases: Grounds and Process

Denaturalization—the revocation of U.S. citizenship—can be pursued in civil cases if the government proves the individual was not eligible for naturalization at the time it was granted. This page explains the legal grounds for civil denaturalization, the process and the key factors that can lead to citizenship revocation.

1. Grounds for Denaturalization in Civil Cases

A. Illegal Procurement or Concealment and Willful Misrepresentation

A naturalized citizen can be denaturalized if:

  • Illegally Procured: The individual did not meet the legal requirements for naturalization.
  • Obtained Through Concealment or Willful Misrepresentation: The individual knowingly made false statements or omitted material information to get naturalized.

These two often overlap as misrepresentation is often tied to illegally procured and invalid naturalization applications.

2. Key Requirements for Naturalization and Problems

  • Naturalization requires the applicant to be a lawful permanent resident (green card holder) at the time of application.
  • Fraudulent LPR Status: If the underlying green card was obtained fraudulently (e.g. through a sham marriage or misrepresentation on a visa application), the citizenship derived from it can be revoked.
  • Historical Examples: Cases under the Displaced Persons Act of 1948 involved individuals who concealed their participation in Nazi persecution. Even indirect involvement, such as being a concentration camp guard, could disqualify an individual from getting a visa and subsequently naturalization.

Example:
Joe immigrated as an unmarried child of a lawful permanent resident. But he was married before immigrating and didn’t disclose it. Since his marriage made him ineligible for his green card, Joe’s naturalization can be revoked.

B. Continuous Residence

  • Applicants must be present in the U.S. for five (or three) years before applying and until naturalization.
  • Breaking Residency: Absences of one year or more break continuous residence. Absences of more than six months but less than a year may also break residency unless justified.
  • False Claims: Making false statements about one’s residence or misrepresenting absences can lead to denaturalization.

Example:
An applicant lists their estranged spouse’s address as their own during the three-year marital period required for naturalization. If found out, this misrepresentation can be a ground for denaturalization.

C. Physical Presence

  • Applicants must be physically present in the U.S. for at least half of the five (or three) years before applying.
  • Omissions: Failing to disclose trips abroad that exceed the allowed time can lead to denaturalization.

Example:
Lupe traveled to Mexico frequently but didn’t list absences that exceeded the allowed time. When these omissions were found out, her case was referred for denaturalization.

D. Good Moral Character

  • Applicants must show good moral character during the required period.
  • Criminal History: Crimes committed before naturalization but not disclosed on the application can disqualify an individual from meeting this standard.
  • Misconduct: Even minor misconduct, such as petty offenses or false testimony, can raise moral character issues.

Example:
An individual committed a crime before obtaining naturalization, but wasn’t arrested until after becoming a citizen. Their failure to disclose this crime during the application process can lead to denaturalization.

E. Attachment to Constitutional Principles and Good Order

  • Applicants must take an oath of allegiance to the Constitution and show they are “well disposed to the good order and happiness of the United States.”
  • Cold War-Era Provision: INA § 340(c) assumes that joining certain organizations within five years of naturalization means lack of attachment to constitutional principles.

Example:
A naturalized citizen joins an organization hostile to the U.S. Constitution within five years of becoming a citizen. Unless there’s countervailing evidence, they can be denaturalized.

3. The Denaturalization Process

  1. Investigation
    • U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE) finds potential fraud or ineligibility cases.
    • Audits of old files or tips from other agencies trigger investigations.
  2. Referral
    • Cases are sent to the Department of Justice (DOJ), specifically the Denaturalization Section, for prosecution.
  3. Filing a Case
    • DOJ files a civil complaint in federal court, listing the reasons for denaturalization.
  4. Proceedings
    • The government must show clear, convincing and unequivocal evidence in civil cases.
    • The individual has the right to defend their case in court.
  5. Outcome
    • If the government wins, citizenship is revoked and the individual goes back to their prior immigration status (e.g. lawful permanent resident).
    • If no other status applies, the individual can be removed (deported).

4. Key Considerations and Safeguards

Legal Protections

  • The government has a high burden of proof to avoid denaturalization being arbitrary or political.
  • Supreme Court cases like Maslenjak v. United States (2017) have held that only material misrepresentations or omissions can justify denaturalization.

Impacts on Immigrant Communities

  • Fear and Mistrust: The threat of denaturalization creates anxiety among immigrants, may discourage eligible individuals from applying for citizenship.
  • Resource Allocation: Investigating past cases may take resources away from processing new applications, further backlogging an already backlogged system.

Denaturalization: Concealment, Misrepresentation, and Other Grounds

Denaturalization, the process of revoking U.S. citizenship, has many legal grounds and processes. This guide covers concealment, willful misrepresentation, military service, Cold War-era provisions, and the denaturalization process, including defenses and court cases.

I. Concealment and Willful Misrepresentation

Grounds for Revocation

Naturalization can be revoked if:

  • Concealment of a Material Fact
  • Willful Misrepresentation

The Supreme Court in U.S. v. Kungys said:

  • Concealment must be willful, and misrepresentation must be of material facts.
  • A fact is “material” if it has a “natural tendency” to mislead immigration officials, even if the concealed information wouldn’t necessarily have prevented naturalization.

Four Requirements

To revoke citizenship for concealment or misrepresentation the government must:

  1. Willfulness: The individual knowingly hid or falsified information.
  2. Concealment or Misrepresentation: False information or omissions during the naturalization process.
  3. Materiality: The concealed or false fact was relevant to the applicant’s eligibility.
  4. Intent to Procure Naturalization: The concealment or misrepresentation was to get citizenship.

II. Examples of Concealment and Misrepresentation

  • Criminal History: Claiming not to have committed crimes or omitting arrests.
  • False Testimony: Giving false answers during the naturalization interview.
  • Address Fraud: Claiming to live at an address that is not the applicant’s actual home.
  • Failure to Take the Oath: In rare cases, not completing all steps of the naturalization process, including taking the citizenship oath, has led to revocation.
  • Court Precedent: If a question during the naturalization process was ambiguous and the applicant’s answer was reasonable, it can’t be fraud or concealment.

III. Wartime Military Service

Under INA § 329(a), non-citizens can naturalize through military service during wartime. But citizenship can be revoked if:

  • The individual is discharged “other than honorably” before completing five years of military service.

Constitutional Questions

  • Critics argue that revoking citizenship based on post-naturalization military conduct violates constitutional protections, as the Fourteenth Amendment protects citizenship unless voluntarily relinquished.

IV. Cold War-Era Provisions (§ 340(a) Proviso)

Naturalization can be revoked if, within 10 years of naturalization, an individual:

  • Refuses to testify before Congress on “subversive activities.”
  • Is convicted of contempt of Congress as a result.

This provision assumes the individual concealed material facts at the time of naturalization or didn’t have attachment to the Constitution. Though a relic of the Cold War, this provision is still on the books.

Constitutional Concerns

  • The proviso’s assumption that future behavior means past concealment raises constitutional issues, including equal protection and due process concerns.

V. Denaturalization Process

Step-by-Step Guide

  1. Complaint Filing:
    • Government files a complaint in U.S. district court, with supporting affidavits showing good cause.
    • Jurisdiction is based on the defendant’s current residence.
  1. Investigation and Recommendation:
    • USCIS investigates and recommends denaturalization.
    • U.S. Attorney’s Office prosecutes the case.
  1. Burden of Proof:
    • Government must prove its case by clear, unequivocal and convincing evidence.
    • Courts must construe facts in favor of the naturalized citizen whenever possible.

Denaturalization Guidelines

  • DOJ guidelines advise against revocation for minor errors or procedural irregularities unless there was fraud.
  • Long standing good conduct after naturalization can weigh against revocation.

VI. Criminal Revocation of Citizenship

Statutory Basis

18 U.S.C. § 1425 requires courts to revoke citizenship when an individual is convicted of:

  • Knowingly and unlawfully procuring naturalization.
  • Producing false documents related to naturalization.

Burden of Proof

  • In criminal cases, government must prove fraud beyond a reasonable doubt.
  • Revocation is automatic upon conviction, no notice or hearing required.

Materiality Standard

  • The false statement must have “played a role” in naturalization.
  • Citizenship can’t be revoked for immaterial falsehoods unrelated to eligibility.

VII. Defenses Against Denaturalization

A. Eligibility for Citizenship

  • If the individual can prove they would have been eligible for citizenship, denaturalization can’t proceed.
  • Example: In Maslenjak v. U.S., the Supreme Court held that eligibility for citizenship is a complete defense even if fraud occurred during the process.

B. Factual Challenges

  • Defendants can rebut government allegations by presenting evidence that challenges the facts of the case:
  • Example: In a pre-WWII case, a court held that an individual who lived abroad temporarily successfully proved they intended to remain a U.S. resident and thus defeated denaturalization.

C. Procedural Errors

  • Cases have been dismissed where the government failed to authenticate evidence as required by federal rules.

VIII. Broader Impact

Chilling Effect

Denaturalization could discourage eligible immigrants from applying for citizenship, fearing retroactive review of their applications.

Due Process

  • Courts stress the importance of fairness and caution in denaturalization cases, given the value of U.S. citizenship.

Materiality

What is Materiality

  • Materiality looks at whether the concealed or misrepresented fact had a “natural tendency” to affect the decision of the immigration official.
  • Supreme Court Precedent: In Kungys v. United States, the Court held that a misrepresentation or omission must meet this standard to warrant revocation of citizenship.

Principles

  1. The information doesn’t have to have disqualified the applicant from naturalization; it just has to be relevant enough to have influenced the decision.
  2. Materiality is only required for cases of concealment or misrepresentation, not for illegal procurement of citizenship.

II. Legal Standards for Proving Materiality

1. Causative Connection

The government must prove that the misrepresentation or concealment either:

  • Directly disqualified the individual, or
  • Would have triggered an investigation that would have uncovered disqualifying facts.

Example: In Maslenjak v. United States, the Supreme Court held that the misrepresentation must have caused the individual to acquire citizenship. The Court said:

  • If the misrepresented fact was itself disqualifying, the link to naturalization is obvious.
  • If not disqualifying, the government must show that discovery would have revealed other disqualifications.

2. Burden of Proof

  • Clear, unequivocal and convincing evidence.
  • Courts require a lot of evidence to take away citizenship, given the value of citizenship rights.

III. Court Decisions on Materiality

Important Cases

  1. Kungys v. United States
    • Misrepresentations about date and place of birth were immaterial because they were irrelevant.
  2. Maslenjak v. United States
    • False statements about a spouse’s military service were evaluated for relevance to the eligibility criteria.
  3. Chaunt v. United States
    • Failure to disclose old arrests for minor offenses was immaterial because the arrests were not for moral turpitude or eligibility.

Rejected Defenses

  • Courts have rejected arguments that certain arrests or misstatements were immaterial if they would have closed off lines of inquiry that would have revealed disqualifying information.

IV. Defenses to Materiality

  1. Eligibility
    • Example: In Maslenjak, the Court said showing eligibility at the time of naturalization can prevent revocation.
  2. Ambiguous Questions
    • If a naturalization question is ambiguous, courts may find the applicant’s answer was not intentionally misleading.
    • Example: In Nowak and Maisenberg, the Supreme Court held that questions about “anarchy” were too vague to require disclosure of Communist Party membership.
  3. Truthful Despite Misinterpretation
    • The applicant can argue their answer was truthful based on a reasonable interpretation of the question.
    • Example: In U.S. v. Profaci, the Second Circuit held that the question “Have you ever been arrested?” could be reasonably interpreted to only apply to U.S. arrests.

V. Procedural Defenses

  1. High Burden of Proof
    • The government must show clear and convincing evidence that the misrepresentation was material to the naturalization.
    • Courts are cautious when taking away citizenship long after it was given.
  2. Statute of Limitations
    • Courts have held there is no statute of limitations on denaturalization.
  3. Procedural Errors
    • Procedural errors, such as failure to give notice of denaturalization, can be grounds for dismissal.
    • Example: In U.S. v. Ataya, the conviction underlying denaturalization was vacated due to procedural errors.

VI. Equal Protection and Materiality

Equal Protection Claims

  • Naturalized citizens have argued that treating them differently from native-born citizens violates the Fifth Amendment’s Equal Protection Clause.
  • Courts have held denaturalization statutes are constitutional, distinguishing between citizenship rights and fraud.

Important Cases

  1. Schneider v. Rusk
    • The Supreme Court struck down a statute that discriminated against naturalized citizens living abroad, saying native-born and naturalized citizens are equal.
  2. Current Law
    • While naturalized citizens can be treated differently for fraud-related revocations, it must be rational.

VII. Practical Considerations

  1. Consequences of Misrepresentation
    • Misrepresentation, even if immaterial to eligibility, can raise moral character issues and impact future immigration applications.
    • Example: False statements in other contexts can still create doubt about honesty during naturalization.
  2. Chilling Effect
    • Fear of retroactive review and denaturalization may deter eligible immigrants from becoming citizens even if their applications are truthful.
  3. Long-Term Consequences
    • Denaturalization proceedings show the importance of transparency and accuracy in naturalization applications to avoid problems later.

Equitable Discretion, Administrative Denaturalization and Derivatives

This guide covers denaturalization, including limits of judicial discretion, administrative denaturalization, consequences of losing citizenship and derivatives such as children and spouses.

I. Equitable Discretion in Denaturalization

Courts Cannot Exercise Discretion to Refuse Denaturalization

  • The Supreme Court has said naturalization is a privilege, not a right. Courts have no “equitable discretion” to deny denaturalization if the statutory requirements were not met.
  • Case: Fedorenko v. United States held denaturalization is mandatory if citizenship was obtained by illegal procurement or willful misrepresentation of material facts.

Government Negligence Is Not a Defense

  • Applicants can’t argue the government’s failure to catch errors during the naturalization process wipes out grounds for denaturalization.
  • Example: In U.S. v. Benavides, defenses like government negligence or comparative negligence were deemed irrelevant in denaturalization.

II. Administrative Denaturalization Enjoined

Limited Administrative Authority

  • INA § 340(h) used to allow the Attorney General to administratively revoke naturalization but that power has been curtailed.
  • Administrative revocation of naturalization is no longer allowed.
  • Only federal courts can revoke citizenship through judicial proceedings.
  • Administrative agencies like USCIS can cancel naturalization certificates if they were fraudulently issued but can’t strip individuals of citizenship.

Important Case: Xia v. Tillerson

  • In this case, Chinese nationals challenged the administrative cancellation of their naturalization certificates.
  • The court held:
    • Canceling a naturalization certificate does not revoke the underlying citizenship.
    • If citizenship is in question, the government must initiate judicial proceedings under INA § 1451.

III. Consequences of Denaturalization

Relation-Back Doctrine

  • Revocation of citizenship is retroactive, as if the person was never naturalized.
  • The individual reverts back to their pre-naturalization immigration status (e.g., LPR or undocumented).

Criminal Consequences

  • Crimes committed after naturalization can’t be used as grounds for deportation once citizenship is revoked.
  • Supreme Court Ruling: The relation-back doctrine doesn’t apply to post-naturalization crimes.

IV. Derivatives

Derivatives Defined

  • Derivatives are individuals who claim citizenship through a parent or spouse, usually children born abroad or spouses of citizens.

Rules

  1. Concealment or Misrepresentation
    • If a parent or spouse loses citizenship for these reasons, derivative citizens lose theirs too, wherever they are.
    • Example: If a parent lied about prior convictions to get citizenship, the child’s derivative citizenship is also revoked.
  2. Illegal Procurement
    • Derivatives don’t lose citizenship if the parent or spouse’s citizenship is revoked for illegal procurement.
    • Example: A parent’s invalid marriage might void their citizenship but wouldn’t affect the child’s status.
  3. Other grounds (e.g. military service or subversive activities)
    • Derivatives lose citizenship only if they are outside the U.S. at the time of the parent’s denaturalization.

Examples of Derivative Outcomes

  • Military Service: If a parent gets citizenship through military service but is dishonorably discharged, children outside the U.S. lose their citizenship. Children in the U.S. keep theirs.
  • Misrepresentation: If a parent lied on the application, derivatives lose citizenship wherever they are.

V. Derivative Citizenship Rules Summary

Grounds for Revocation

Grounds for RevocationLiving in the U.S.?Living Outside the U.S.?
Illegal ProcurementNo loss of statusNo loss of status
Concealment or MisrepresentationCitizenship revokedCitizenship revoked
Other Grounds (Military/Subversive Acts)Retains citizenshipCitizenship revoked

VI. Practical Considerations

Protecting Citizenship

  • Naturalized citizens should be honest in their applications and aware of the consequences of their actions before and after naturalization.

Impact on Family Members

  • Derivatives should monitor any legal challenges involving the principal applicant as the outcome may affect their status.

Administrative Errors

  • Administrative errors in issuing certificates may require judicial resolution to determine the status of the affected individuals.

United States v. Farhane: A Denaturalization Case

The case of United States v. Abdulrahman Farhane is an important case related to denaturalization issue. This article breaks down the key events and implications of this big legal battle that affects naturalized citizens.

Background: Farhane’s Story

  • Who is Abdulrahman Farhane?
  • Moroccan-born, naturalized Muslim American living in Brooklyn.
  • Built a life in the U.S. over 30 years, with two American-born kids.
  • The Guilty Plea
  • In 2006, Farhane pleaded guilty to federal charges, his lawyer advised him to do so.
  • He served 11 years in prison, good time, and got out early.
  • The Denaturalization Threat
  • After his release, the Department of Justice (DOJ) started to pursue his U.S. citizenship revocation.
  • If successful, Farhane would be deported and his children’s derivative citizenship would be revoked.

Legal Issues: Effective Counsel

  • Ineffective Assistance of Counsel
  • Farhane’s original lawyer didn’t tell him about the denaturalization consequences of his guilty plea.
  • The omission is the basis of Farhane’s motion to vacate his plea.
  • The Creating Law Enforcement Accountability & Responsibility (CLEAR) Project at CUNY Law, along with Wilmer Hale, represents Farhane.
  • They argued that the failure to advise Farhane violated his Sixth Amendment right to effective counsel.

Court Proceedings: Timeline

Initial Proceedings

  • 2019-2020: Farhane filed a 28 U.S.C. § 2255 motion to vacate his guilty plea.
  • The district court denied the motion in March 2020.
  • October 2024: The en banc court reversed the district court’s decision.
  • Holding: Naturalized citizens must be advised of denaturalization and deportation consequences at the time of guilty plea.

What it means

For Naturalized Citizens

  • Legal counsel must inform defendants of immigration consequences of guilty pleas.
  • Stronger defense against retroactive denaturalization.

For Immigration Law

  • Trump administration’s effort to expand denaturalization beyond war criminals and Nazis to Muslim Americans and other groups.
  • Educates on due process for naturalized citizens facing legal trouble.

For Farhane and His Family

  • Farhane keeps his citizenship and his children keep their citizenship.
  • Big win for advocates and immigrant rights groups.

Expert Legal Help At Herman Legal Group, LLC

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Trump’s Mass Detention and Deportation
Group of migrants carrying luggage at mexican border

Trump’s 2025 Immigration Plans Unfold

Donald Trump’s incoming administration is putting the pieces in place for big immigration changes and it’s looking a lot like his first term. As his plans become more clear, let’s break it down step by step including new info and context, particularly focusing on Trump’s mass deportation plan and its implications for various industries, especially private prisons.

Trump’s New Focus

Unlike his first campaign where the wall was the main focus, Trump’s 2024 agenda is:

  • Interior Enforcement: Going after undocumented immigrants already in the U.S.
  • Mass Deportations: Increasing detention and removal.
  • Policy Rollbacks: Reversing Biden policies.

Trump Allies Start Preparing for Mass Immigration Detention

Getting Serious

As Donald Trump becomes president-elect his allies and some private sector players are gearing up for mass detention and deportation of undocumented immigrants in the U.S. At the Republican National Convention hold, the atmosphere was charged, with attendees raising signs demanding mass deportation. Immigration enforcement was a big part of Trump’s 2024 campaign and now it’s interior enforcement instead of just border control.

Day One Priorities

According to Jason Miller, a Trump senior adviser, the first order of business will be to put back in place the border policies of the Trump administration and reverse many of the Biden policies. Early discussions among Trump’s team include going after undocumented immigrants with criminal records and the hot button issue of deporting Dreamers—immigrants brought to the U.S. as children.

The Dreamer Debate

Dreamers, many of whom are protected under the Deferred Action for Childhood Arrivals (DACA) program, have traditionally been bipartisan. Targeting this group would be a big departure from previous administrations. Trump’s team hasn’t made up their minds on this yet.

Policy Under Review

1. “Remain in Mexico” Policy

  • Migrants seeking asylum in the U.S. would have to stay in Mexico during their immigration proceedings.
  • This would reduce the number of migrants entering the U.S. while awaiting decisions.
  • Critics say it puts migrants in danger in border cities.

2. Asylum Restrictions

  • Tighter rules to limit asylum eligibility to prevent what the administration sees as frivolous claims.
  • Re-defining the “credible fear” standard to make it harder for migrants to qualify for asylum.
  • Reversal of Biden’s humanitarian parole programs which allowed entry for certain groups in danger.

3. ICE Enforcement Priorities

  • Dismantling Biden’s enforcement priorities which focused on public safety and national security threats.
  • Expand enforcement to more undocumented immigrants.

4. Mandatory Detention for Migrants

  • End the practice of releasing migrants due to resource constraints.
  • Detention would be mandatory for most migrants pending court proceedings.
  • To discourage unlawful border crossing by eliminating release.
Construction site with a "Workers Wanted" sign

Building the Detention Infrastructure

Detention Facilities

  • Metropolitan Areas: Reviewing cities with existing capacity to expand, like Los Angeles and Houston.
  • New Detention Centers: Building new facilities to house more migrants.
  • Private Sector: CoreCivic, the largest private prison operator, has already said they will increase capacity. GEO Group is another big player expected to help.
  • County Jails: Working with local jails to add detention space, especially in border states.

National Emergency Declaration

  • Using a national emergency to access Pentagon resources for detention expansion.
  • Trump did this during his first term but it was met with legal challenges from civil rights groups and lawsuits.
  • Will tailor the declaration to minimize legal exposure and maximize resources.

Family Detention

  • Reinstating family detention, a practice ended by President Biden.
  • Family detention centers are being reviewed for operational readiness in Texas and Arizona.
  • Advocates say it will cause long term psychological harm to children, administration says it’s a deterrent to illegal entry.

Who’s Behind the Policy

Trump’s team includes:

  • Tom Homan: Appointed as “border czar” with years of immigration enforcement experience.
  • Stephen Miller: Deputy chief of staff for policy, hardline immigration guy.
  • Kristi Noem: South Dakota governor to head Department of Homeland Security.
  • Rodney Scott: Former U.S. Border Patrol Chief, border security operations expert.
  • Michael Banks: Adviser to Texas Governor Greg Abbott on border issues, state-federal coordination.

They know the system, many have implemented previous enforcement measures. They’re focused on operational efficiency and legal fortification to withstand lawsuits.

Operational Tactics

Targeting Migrants Already in the U.S.

  • Executive orders to stop the flow at the border.
  • First focus on identifying and removing undocumented immigrants in the U.S., those with criminal records or prior deportations.

Staging and Worksite Raids

  • Large staging facilities near the border to process and detain migrants quickly.
  • Bringing back worksite raids that were ended by the Biden administration, targeting employers of undocumented workers.
  • Harsher penalties for employers who hire undocumented immigrants.

Obstacles

Funding

Big deportations require big money. The cost to apprehend, detain, process and deport one immigrant was $10,900 in 2016, with transportation costs averaging $1,978 per person. Since then costs have gone up so they need to plan the budget aggressively to not have to reprogram funds from other areas.

  • Relying on reprogramming existing agency funds since Congress won’t provide more.
  • May turn to private sector partnerships to add resources.
  • Looking into alternative funding mechanisms, like reassigning Department of Defense funds, to support detention expansion.

Detention Space

  • One big problem with mass deportations is detention space. The federal government relies on private contractors and county jails for detention facilities. According to John Sandweg, former acting ICE director, most detention facilities are run by contractors, with very little owned directly by the government.

Personnel Shortages

  • ICE has ongoing staffing issues. Adding personnel and resources will be key to achieving the administration’s goals especially since deportation logistics for individuals from countries outside of Mexico and Central America will be more complicated.

Country-Specific Challenges

  • Deportations can vary by country. For example:
    • Mexico and Central America: Deportations are faster since there are established processes and agreements.
    • Other Countries: These require more coordination, documentation and compliance with different travel requirements which can delay removals.

Legal and Political Pushback

  • Democrats and immigration advocates will sue in court and Congress.
  • Family detention, worksite raids and detention expansion will be controversial.
  • Civil rights groups are already preparing to sue over expected executive orders.

Implementation Challenges

  • Trump’s plan requires coordination among federal, state and local agencies.
  • Achieving the big deportations will involve navigating logistical, legal and political hurdles.
  • Prioritizing enforcement with limited resources is a big issue.

Mixed Reaction at DHS

Internal Responses

Homeland Security Department (DHS) is preparing for big immigration policy change. Some are excited to go back to enforcement, others are worried about bringing back policies that were dismantled under the Biden administration.

Policy Reversals

Biden-era programs like parole programs that allow certain nationalities to live and work in the US temporarily will be rolled back immediately. These programs had been working to reduce migrant crossings in recent months after the big border crises earlier in Biden’s term.

Private Sector

The private sector, particularly companies that manage detention facilities, are gearing up. They have existing contracts with the federal government which could speed up the expansion of detention capacity. But overall scalability is a question of money and logistics.

Deportation Numbers in Context

  • Trump’s first term: 1.5 million
  • Obama’s first term: 2.9 million
  • Obama’s second term: 1.9 million
  • Trump’s numbers don’t include border turnbacks under COVID policies.
  • Biden’s administration was criticized for continuing Trump’s Title 42 expulsions.

What’s Next

  • First 100 Days: Executive orders to secure the border and deport more.
  • Migrants: Stricter policies will mean big changes for migrants and immigrants already in the US, longer detention and fewer legal options for relief.
  • National Conversation: As policies change the debate will be about human rights, public safety and national security.

Trump’s Mass Deportation Plan: No Cost, But Consequences

Deporting Millions

President-Elect Donald Trump has repeated his promise to deport millions of undocumented immigrants. “No cost” he said in an NBC interview. “When people have killed and murdered, when drug lords have destroyed countries, they’re not staying here. There is no cost.”

The American Immigration Council estimates the cost of this massive deportation effort would be $315 billion. But Trump is willing to do it regardless of cost or logistics.

Democratic Officials Oppose

Trump’s deportation plan will face fierce opposition from Democratic governors, mayors and local officials across the country. Many have vowed to protect their communities from what they see as extreme and inhumane policies. Some of them are:

  • Gavin Newsom, Governor of California: Newsom is calling a special session to protect immigrant rights and “defend California values.”
  • Karen Bass, Mayor of Los Angeles: With a third of her city’s residents foreign-born, Bass stands with immigrants and calls on local leaders to act.
  • JB Pritzker, Governor of Illinois: “You come for my people, you come through me.”
  • Kathy Hochul, Governor of New York: Will cooperate on some things but will fight anything that hurts New Yorkers’ rights and freedoms.

Sanctuary Cities

The Trump administration is considering punishing sanctuary cities and states that don’t cooperate with federal immigration enforcement. That could mean withholding federal funds from local police departments. That will likely be challenged in court and create more tension between the feds and locals.

International Fallout: Canada Prepares

Trump’s policies are already affecting Canada where officials are bracing for a wave of migrants fleeing deportation. Canada has:

  • Enhanced Border Security: RCMP and border services are on high alert and have developed plans.
  • Past Experience: Officials are drawing from past trends of increased crossings during Trump’s first term and are preparing for “similar situations.”

Southern Border

On the southern border the outgoing Biden administration is addressing the increase in illegal crossings as smugglers rush to get migrants into the US before Trump’s policies kick in. This is a complication of migration and the unintended consequences of tough talk.

Military Involvement: Bad Sign

Trump’s campaign talk has raised questions about the military’s role in enforcing immigration policies and quelling protests. Some of that:

  • Pentagon’s Statement: Defense Secretary Lloyd Austin said the military will have a “smooth, orderly and professional transition” to the Trump administration and will follow lawful orders.
  • Military Use: Critics are concerned about the military being used to quell internal dissent, given Trump’s repeated admiration for authoritarian leaders.

Humanitarian and Legal Issues

The trump mass detention and deportation plan has humanitarian and legal problems:

  • Family Separations: Large scale deportations could mean widespread family separations, especially for children born in the US to undocumented parents.
  • Economic Impact: The American Immigration Council points out labor shortages in industries like agriculture, hospitality and construction that rely heavily on undocumented workers.
  • Legal Challenges: Cities and states opposing Trump’s policies will file extensive legal challenges and slow down implementation and enforcement.

Components of a Mass Deportation Plan

1. Detention Infrastructure

  • Big Detention Centers: Build large facilities to hold undocumented immigrants while they await deportation. These would be located in remote areas to avoid public scrutiny and local opposition.
  • Privatization of Detention Facilities: Renew contracts with private prison companies to manage immigrant detention centers.
  • Temporary “Staging Centers”: Use temporary camps to house surges in detentions like those proposed by Trump advisor Stephen Miller.
  • Transportation Network: Create a secure transportation system to move detainees to different facilities or deportation points.

This would require federal funding and could lead to overcrowding and underfunding like previous detention crises.

2. ICE Operations

Trump’s plan depends on the former ICE officials being able to apprehend and remove many more undocumented individuals. That means:

  • Hiring Thousands of New Agents: ICE will likely launch a big recruitment drive and lower hiring standards to meet the numbers.
  • Surveillance Technology: Facial recognition, drones, AI-powered data analytics and geolocation tracking to find and apprehend undocumented immigrants.
  • Local Law Enforcement Partnerships: Expand 287(g) programs where local police are deputized as immigration enforcement officers and can cover the whole US.
  • Workplace Raids: Increase frequency of raids on undocumented workers, especially in agriculture, construction and hospitality with penalties for employers who don’t comply.

3. Undermining Legal Protections for Immigrants

To speed up deportations the incoming Trump administration will likely weaken legal protections for immigrants. Some of that:

  • Elimination of Due Process: Expand expedited removal which bypasses immigration court for certain individuals.
  • Deny Legal Representation: Limit immigrants’ access to lawyers by cutting funding to organizations that help migrants.
  • Asylum Claims: Bring back programs like “Remain in Mexico” which bars asylum claims for individuals who pass through third countries without applying there first and stricter eligibility criteria.

4. Repeal of DACA and TPS

The incoming Trump admin administration has already targeted programs like DACA and TPS. They will likely:

  • End DACA: Take away protections from over 600,000 Dreamers and subject them to deportation. They would also lose their work permits and access to education.
  • Rescind TPS: Take away protections from individuals from countries in crisis like natural disasters or armed conflicts, potentially impacting hundreds of thousands.
  • Visa Overstay Enforcement: Focus on tracking and deporting visa overstayers, the majority of undocumented immigrants.

5. Bring back “Operation Wetback”

Trump has often referred to Operation Wetback, a 1950s deportation program, as a model for his plans. A modern version could be:

  • Mass Deportation Raids: Coordinated removal of large numbers of individuals in a short period of time targeting specific communities.
  • Harsh Enforcement: Prolonged detentions, aggressive sweeps and mass roundups in residential areas.
  • Targeting Vulnerable Communities: Operations in areas with large immigrant populations to create fear and instability.

6. Legislative and Executive Actions

While mass deportations face legal and practical obstacles, the Trump administration will:

  • Executive Orders: Go around Congress and implement policies on their own, bypassing legislative gridlock.
  • Pressure Congress for Immigration Reforms: Pass laws that criminalize being undocumented, simplify deportation process and limit judicial review.
  • Sue Sanctuary Cities: Challenge states and cities that don’t cooperate with federal immigration enforcement and withhold federal funds.

Background

Trump’s mass deportations are reminiscent of dark chapters in history:

  • Operation Wetback (1950s): This program had significant human rights abuses, deaths and wrongful deportations of US citizens. Its legacy is a warning against government overreach.
  • Japanese American Internment (1940s): The forced relocation and detention of Japanese Americans during World War II is considered a great injustice and a warning against targeting groups based on identity.
  • Post 9/11 Immigration Crackdowns: Policies after 9/11 led to racial profiling, wrongful detentions and strained international relations.

History has shown that large scale detention and deportation efforts lead to unintended consequences, reputational damage, social division and long term harm to vulnerable communities.

The Psychological Cost of Deportation Policies

Fear and its Reach

The Trump administration’s deportation policies have ravaged the mental health of immigrant communities across the country. For millions documented and undocumented, the constant threat of deportation, family separation and hostility has created a culture of fear and psychological pain. As a psychiatrist and mental health advocate I have seen how this fear plays out in individuals and families, anxiety, trauma and depression that seeps into daily life.

This is personal to me. I immigrated to the US as a young man with legal status. I know the uncertainty many immigrants face. For many others this uncertainty isn’t just psychological it’s a matter of life and death.

Child crying while being separated by border patrol agents

Living in Fear: The Daily Reality of Immigrants

Imagine waking up every day not knowing if it will be your last day with your family. Deportation policies under the Trump administration have created a culture of terror that affects everyone from children to seniors.

Psychological Effects:

  • Chronic Anxiety: Fear of raids or separation can lead to anxiety.
  • Depression: Hopelessness from uncertainty.
  • PTSD: Continuous exposure to fear and threats creates long term trauma.

Effects on Children:

  • Emotional Distress: Nightmares, can’t concentrate, behavioral problems.
  • Physical Symptoms: Headaches, stomach issues, sleep disturbances.
  • Developmental Challenges: Growing up in this kind of stress hinders emotional and psychological development making it harder to form healthy adult relationships and trust.

The Trauma of Family Separation: Long Term Scars

The “zero tolerance” policy that led to mass family separation inflicted deep emotional wounds on both parents and children. Although the policy has ended the damage has not.

Separation Consequences:

  1. For Children:
    • Emotional disconnection and attachment issues.
    • Higher risk of long term mental health disorders like PTSD.
    • Behavioral regression and difficulty adjusting in school.
  2. For Parents:
    • Overwhelming guilt and powerlessness.
    • Depression and prolonged grief.
    • Difficulty rebuilding trust with their children even after reunification.

Intergenerational Impact:

  • Families carry the emotional baggage of these separations into future generations. Reunited families often face extra challenges to get back to normal.

The Stigma of “Otherness”: Discrimination and its Psychological Toll

The administration’s rhetoric on immigration has fueled xenophobia especially towards immigrants from Latin America. The harmful narrative that immigrants are threats or criminals makes immigrants feel like outsiders and causes psychological harm.

Psychological Effects of Discrimination:

  • Internalized Shame: Immigrants feel devalued or unwanted in society.
  • Mental Health Struggles: Discrimination leads to depression, anxiety and low self esteem.
  • Social Isolation: Immigrants may withdraw from communities, limiting their access to support systems and resources.

Intersection with Economic Stress:

  • Immigrants in industries like agriculture and construction face double stress from discrimination, fear of deportation and precarious work.

Industry Impact: Economic and Human Cost

Deportation policies affect more than families, industries that rely heavily on immigrant labor like agriculture and construction lose valuable workers and long term uncertainty.

Human Cost:

  • Immigrant workers live under extreme stress, reducing productivity and morale.
  • Families that depend on these incomes are economically unstable and mental health worsens.

Solutions: Addressing the Psychological Crisis

Healing from these policies requires a multi faceted approach that combines mental health care, legal protections and community support.

Steps to Healing:

  1. Culturally Competent Mental Health Care:
    • Trauma informed therapy for the immigrant experience.
    • Multilingual services to address language barriers.
    • Community based support groups to share healing.
  1. Legal Protections:
    • Pathways to citizenship, work permits and residency status.
    • Policies that reduce deportation threats.
    • Legal services for families with complex immigration cases.
  1. Community Outreach:
    • Schools, non-profits and faith based organizations must work together to offer mental health services.
    • Training for educators and healthcare providers to recognize and address trauma in immigrant populations.
  1. Public Advocacy:
    • Campaigns to combat xenophobia and highlight immigrant contributions.
    • Legislation to ensure humane immigration policies that prioritize family unity and mental health.

Next Steps

Deportation policies have a psychological cost. But immigrant communities are strong and can be stronger with solidarity, advocacy and systemic change. Healing from these policies is not only the right thing to do but necessary for a just and compassionate society.

What We Can Do:

  • Empathy and Support: Acknowledge the humanity of immigrants and what they go through.
  • Legislative Change: Push for policies that bring stability and security to immigrant families.
  • Mental Health Priority: Fund programs and services for immigrants to heal and thrive.

Healing and Dignity

The damage from deportation policies is deep but healing is possible. By addressing the mental health of immigrant communities, creating legal pathways to stability and building an inclusive environment we can restore lives shattered by fear and uncertainty.

Let’s stand together so all people regardless of status can live with dignity, safety and hope.

Trump’s Deportation Plan and How it Affects Asian American Communities

Proposed Deportation Plan

President-elect Trump’s campaign has been talking about big changes to immigration and mass deportations. Undocumented Chinese nationals, especially those of “military age” are reportedly the main target. This has Asian American organizations moving fast to respond to this. Many of them anticipated this and are now mobilizing resources to support affected communities.

Key Points:

  • Deporting undocumented Chinese nationals of military age.
  • They are a national security threat.
  • Asian American groups are preparing for the fallout of these policies, including increased deportation sweeps and anti-China rhetoric.

Undocumented Asian Population Growth

Asian Americans are the fastest growing segment of the undocumented immigrant population in the US. From 2000 to 2015, the population tripled and the number of undocumented Chinese has been increasing rapidly:

  • Between FY 2022 and 2024, Chinese entries at US borders went from 27,000 to over 78,000.
  • This is part of a broader migration trend driven by political instability, economic challenges and limited opportunities in China.

Demographics:

  • Most of these individuals are young men, many fleeing military conscription, political persecution or harsh economic realities.
  • Many are part of mixed status families making deportation enforcement more complicated.

Historical Context and Concerns

Bethany Li, executive director of the Asian American Legal Defense and Education Fund, noted historical precedent:

  • World War II: Japanese Americans were interned based on national security threat.
  • Post 9/11: Muslim and South Asian men were detained and deported for similar reasons.
  • Li also mentioned modern policies such as state laws restricting Chinese nationals’ property ownership and the China Initiative which is accused of racial profiling.

Trump’s Statements:

At an April rally, Trump said:

“They’re coming in from China … and they’re all military age and they mostly are men. Are they trying to build a little army in our country?”

Asian American Organizations Act

Asian American groups are mobilizing to respond to the deportation threat. Their work is on education, legal assistance and resource coordination:

What Advocacy Groups Are Doing:

  1. Language-Specific Outreach:
    • Creating multilingual materials to educate affected individuals of their rights.
    • Disseminating information on immigration policies and deportation process.
  1. Legal Support:
    • artnering with immigration attorneys who speak Asian languages to support families.
    • Training community organizations to help immigrants get their records through FOIA.
  1. Scenario Planning:
    • Meeting to prepare for immigration sweeps.
    • Building networks with other non-profits to support mixed status families.
  1. Public Awareness Campaigns:
    • Showcasing nonprofit services to encourage affected individuals to seek help.
    • Educating communities of their rights when interacting with US immigration officials.
  1. Emergency Preparedness:
    • Distributing “know your rights” cards in multiple languages.
    • Developing plans for affected families to respond to raids or legal actions.

Broader Context and Community Impact

The targeting of Chinese nationals is part of a growing anti-China sentiment that many experts believe goes beyond administrations. While Trump’s policies exacerbate this, the Biden administration has also been removing 1.1 million since FY 2021.

More:

  • Many Chinese migrants come to the US to escape economic hardship and political discontent in their home country.
  • Anti-China rhetoric further isolates and marginalizes Asian American communities making existing fears and discrimination worse.
  • The broader Asian diaspora is under surveillance and suspicion and needs solidarity among impacted communities.

International

The Chinese Embassy in Washington D.C. has said they will cooperate with other countries on repatriation of undocumented immigrants. But how will this be implemented under second Trump administration?

Chinese Embassy Statement:

“China has cooperation with some countries on repatriation of illegal immigrants and is willing to strengthen cooperation with relevant countries on this issue.”

What to Do for Vulnerable Communities

Asian American leaders stress the need for solidarity and resilience. Jo-Ann Yoo, executive director of Asian American Federation, advises communities to stay informed and proactive:

Take Action:

  • Educate: Know your rights and legal resources.
  • Organize: Build networks among nonprofits, legal experts and advocacy groups.
  • Support: Create community networks to address deportation emotional and logistical challenges.
  • Advocate: Demand legislative changes to protect vulnerable populations and stop discriminatory policies.

More:

  • Multilingual legal hotlines.
  • Workshops on asylum, work permits and other legal options.
  • Community led support groups for emotional and psychological support.

Yoo concluded: “No time to rest. We see danger. We will push and we will be brave.”

Take Action:

  • Get local officials to be transparent on enforcement.
  • Get allies and advocacy groups to lift up impacted communities.
  • Build grassroots to counter xenophobia and racial profiling.

Fact Check: Can Trump use the Alien Enemies Act of 1798 for Mass Deportations?

Former President Donald Trump is centering his 2024 campaign on immigration reforms, including the largest deportation operation in US history. He recently said he would use the Alien Enemies Act of 1798 to do so. Here’s a breakdown of the law, its history and if he can.

What Is the Alien Enemies Act of 1798?

The Alien Enemies Act is one of four laws that make up the Alien and Sedition Acts passed in 1798 during the Quasi War with France. Three of those laws were repealed or allowed to expire but the Alien Enemies Act is still in effect today. Here’s what it says:

  • Purpose: Allows the president to detain or deport individuals from a foreign nation deemed “hostile” to the US during war or in response to a “predatory incursion” (invasion or raid).
  • Authority: Allows the president to act without hearings for individuals from enemy nations.
  • Historical Context: Originally to prevent espionage and sabotage during war.

The law’s broad language means it could apply to immigrants who have committed no crimes and are legally in the country. But its applications are tied to wartime scenarios so it’s limited in peacetime.

Alien Enemies Act History

The Alien Enemies Act has been used three times in US history, all during war:

1. 1812 War

  • President: James Madison
  • Target: British nationals in the US
  • Actions: Required individuals to provide details such as age, length of time in the US and citizenship applications. Some were detained and deported as tensions rose.

2. World War I

  • President: Woodrow Wilson
  • Target: Nationals of Germany and its allies (e.g. Austria-Hungary)
  • Actions: Implemented broad surveillance, detentions and deportations of individuals suspected of espionage or sabotage.

3. World War II

  • President: Franklin D. Roosevelt
  • Target: Citizens of Germany, Italy, Japan
  • Actions: Used to intern enemy aliens in internment camps. While the act targeted non-citizens, Japanese American citizens were detained under a separate executive order.

Can Trump use the Act for Mass Deportations?

Legal Limitations

Experts agree Trump can’t use the Alien Enemies Act for the kind of mass deportations he’s talking about. Here’s why:

  1. War or Invasion: The law can only be used if the US is at war with a foreign government or under threat of invasion by a foreign entity.
    • The US is not at war with any nation.
    • Mexican drug cartels or Venezuelan gangs like Tren de Aragua do not qualify as foreign governments.
  1. Scope of the Law: The act applies to nationals of specific hostile nations, not to individuals from all countries.
  2. Historical Precedent: The law has only been used during war and has never been used for peacetime deportations.

Additional Considerations

  • Misinterpretation of “Invasion”: Trump and his allies have called illegal immigration and border activity an “invasion” but experts say that doesn’t meet the criteria for using the act.
  • Modern Context: Current immigration issues, including gang violence and cartel activity, are better addressed through existing immigration and criminal laws not wartime powers.

Expert Opinions

  • Katherine Yon Ebright: Using the Alien Enemies Act outside of its wartime context would be a departure from centuries of legal and presidential practice.
  • Ilya Somin (George Mason University): Calling immigration or drug smuggling at the border an “invasion” doesn’t meet the legal definition to use this law.
  • Steve Vladeck (University of Texas): Existing immigration laws already provide frameworks for deportations but mass deportations are resource intensive and legally complex.

Legal and Political Hurdles

Even if Trump tried to use the Alien Enemies Act, it would face major legal and logistical problems:

Court Challenges:

  • Courts have ruled that issues like the definition of “invasion” or “wartime” are political questions and therefore not justiciable.
  • But using the act outside of wartime would open the door to unprecedented legal scrutiny.

Resource Constraints:

  • Mass deportations would require enormous resources to identify, detain and process individuals. Previous administrations have struggled with much smaller operations.
  • Detention facilities, legal processing capacity and enforcement personnel would need to be expanded, which would require congressional approval and funding.

Public and International Blowback:

  • Mass deportation initiatives, especially under questionable legal authority, could face public opposition and strain relations with affected countries.

Past Deportation Efforts: A Comparison

Trump Administration

  • Promised mass deportations in 2016 but didn’t deliver.
  • Deportations (FY 2017-2020): 2 million
  • Includes deportations initiated under Obama.

Obama Administration

  • Deported 3.2 million in his first term and 2.1 million in his second term.

Biden Administration

  • Deportations (2020-present): 4.4 million (as of June 2024)
  • Most in a single term since George W. Bush’s second term (5 million)

Trump’s Deportation Plan: Lessons from History and Dangerous Echoes

A Dangerous Vision: Mass Deportation

July 17, 2024. At the Republican National Convention in Milwaukee, Wisconsin, a disturbing scene unfolded as attendees waved signs that read “Mass Deportation Now.” Former President Donald Trump, running for re-election, unveiled a plan to deport up to 20 million people, more than the estimated number of undocumented immigrants in the US today. This would turn into a massive detention system with devastating human and societal consequences.

Mass civilian detention based on identity is not new. From Spanish-occupied Cuba in the 19th century to Nazi Germany and beyond, the history of such camps is bloody and brutal. Trump’s plan for a national deportation program draws from this dark history, using flawed reasoning and pseudoscience that has underpinned some of humanity’s worst moments.

Dehumanizing Rhetoric: A Prequel to Atrocities

Trump has used inflammatory language to describe immigrants, saying they are “poisoning” the “blood” of the country. Such rhetoric is a precursor to atrocities. For example:

  • Pseudoscience and Fear-Mongering: In the 20th century, regimes used scientific language to justify inhumane policies. Terms like “blood poisoning” and false claims of immigrants and disease were used to justify forced expulsions and internments.
  • Historical Parallels: The Nazi regime called Jews “vermin” and “parasites” and framed them as a biological threat. Trump has called immigrants “animals,” “rapists” and other dehumanizing terms.

This language does more than insult—it prepares the public to accept detention camps and forced deportations as necessary.

The History of Concentration Camps: Lessons Ignored

Concentration camps have been used to detain civilians based on identity with catastrophic results. A look back shows how these systems develop and the horrors they unleash:

Early Examples

  • Spanish Cuba: In the late 1800s, Spanish authorities created camps to intern civilians during the Cuban rebellion. Overcrowding, disease and starvation killed tens of thousands. These camps were the precursor to modern mass detention systems.
  • South African War: British camps during the South African War (1899-1902) had high mortality rates, especially among children, due to lack of food, unsanitary conditions and no medical care. Bureaucratic inefficiencies and racial discrimination made it worse.

World War II and Beyond

  • Nazi Germany: Initially, Nazi policies focused on forced emigration of Jews, who were stripped of citizenship to make them stateless. Camps started as internment facilities but became death camps where millions died.
  • Vichy France: During World War II, the French government interned foreign Jews who had fled Nazi Germany, later deporting many to concentration camps. Internment was supposed to be containment but became collaboration with genocide.
  • Japanese American Internment: The U.S. detained over 120,000 Japanese Americans during World War II under the guise of national security. Families were uprooted and sent to remote camps with devastating economic and emotional costs. Decades later this was acknowledged as a great injustice.

In each case, what started as control or “security” measures became widespread human rights abuses and death. Camps meant to be temporary solutions became instruments of systemic oppression and violence.

Trump’s Plan: A Recipe for Chaos and Suffering

The scale of Trump’s deportation plan is unprecedented:

Logistical Nightmares

  • Personnel and Resources: Mass deportations on this scale would require an enormous expansion of enforcement agencies, detention facilities and logistical networks. The U.S. doesn’t have the personnel, infrastructure or funding to do this without societal collapse.
  • Legal Obstacles: Existing laws and constitutional protections would have to be torn down or ignored, leading to a tsunami of lawsuits and erosion of the rule of law. Protections for children, families and asylum seekers would be among the first to go.

Deliberate Chaos

  • Economic Impact: Deporting millions of workers would create a labor vacuum, crippling industries like agriculture, construction and hospitality that rely heavily on immigrant labor. The ripple effects would destabilize local economies and increase consumer costs.
  • Human Cost: Detention camps would likely be as overcrowded and under-resourced as they were during Trump’s first term, with reports of no medical care, unsanitary conditions and abuse.

Operation Wetback

Trump and his advisors have praised “Operation Wetback,” a 1950s deportation program that was marked by abuse and inhumane conditions. In one incident 88 deported workers died of heat exhaustion in 112 degree temperatures. This program was smaller in scale but set the precedent for brutality that Trump’s plan will replicate on a much larger scale.

The Human and Moral Consequences

Mass detention camps will bring:

  • Human Rights Violations: History shows these systems quickly become sites of neglect, abuse and mass death. Reports from existing detention centers already show severe mistreatment including family separation and death in custody.
  • Precedent for Dictatorship: Authoritarian regimes have used similar systems to silence opposition and consolidate power. A mass deportation program could easily be expanded to target other groups deemed undesirable.
  • Irreparable Harm: The social and psychological damage from mass detention and deportation is deep. Communities would be torn apart, trust in institutions would be eroded and the nation’s moral standing would be irreparably damaged.

A Warning

The signs at the Republican National Convention are a warning. Trump and his allies, including Stephen Miller, have outlined plans for “staging centers” to detain millions. This is not just logistical chaos, it’s a moral and humanitarian crisis.

As Americans we must look at these policies and their historical analogues. The lessons are clear: mass detention and forced relocation is deadly, destabilizing and un-American. History is full of examples of how these policies get out of control and leave destruction in their wake.

Trump’s Mass Deportation Plan: A Bonanza for Private Prisons

As President-elect Donald Trump prepares for his second term his promise to deport millions of undocumented immigrants is getting a lot of attention. Beyond the political and social implications one industry sees a goldmine: private prisons. With mass detentions expected private prison companies are positioning themselves to profit.

Private Prisons in Immigration Detention

For years U.S. Immigration and Customs Enforcement (ICE) has used private contractors to house detained immigrants. This has turned immigration detention into a multi-million dollar business. Under Trump’s first term the number of immigrants held in private detention facilities reached an all-time high. Now with his renewed focus on mass deportations industry leaders expect another surge in demand.

Executives See “Big Opportunity”

George Zoley, founder of the Geo Group—the largest private prison operator in the U.S.—called Trump’s immigration plan a “sea change” for the industry. On a corporate earnings call he said, “The Geo Group was built for this moment in time and the opportunities that will come with it.”

CoreCivic, the second largest private prison operator, is getting ready for more business. Executives say the post-election environment means it’s an active time for detention services.

Private Prisons See Stock Market Boost

The election is already affecting the stock market. After Trump’s win Geo Group and CoreCivic stocks went up, reflecting investor confidence in Trump’s deportation plans.

Preparation for Mass Deportations

Trump’s plan, led by new border czar Tom Homan, includes deporting undocumented immigrants on “Day 1” of his presidency. Homan, a former ICE director, has long advocated for private detention facilities saying they are cheaper and better than government run centers.

Existing Capacity and Expansion Plans

Private prison companies are already gearing up:

  • Geo Group: The company has 10,000 empty beds across six facilities and 8,000 beds at ICE and U.S. Marshals facilities under existing contracts. They claim they have the technology and staff to ramp up quickly.
  • CoreCivic: They are making more beds available as the new administration gets underway.

The Bonanza for Contractors

Experts say Trump’s plan will be a goldmine for private prison operators. John Sandweg, former acting director of ICE said the administration will offer “massive contracts” to these companies. “Private contractors are going to make billions, legitimate billions off this” he told ABC News.

Legal and Practical Issues

ICE is required to detain most undocumented immigrants it arrests. With limited government run facilities ICE relies on private contractors. Even in states that ban private prisons federal detention needs trump state laws so private facilities will continue to be used.

Criticism of Private Prisons

Human Rights

Critics say the private prison model puts profit over human rights. Eunice Cho, an attorney with the ACLU’s National Prison Project, said 90% of new detention beds under Trump’s first term went to private companies. “The true cost will be borne by people locked up in dangerous, deadly and inhumane detention centers” she said.

Reform

Democratic lawmakers including Sen. Elizabeth Warren are calling on the Department of Homeland Security to get rid of private detention centers. In a letter to DHS Secretary Alejandro Mayorkas Warren and others asked for community based alternatives to detention and humane immigration policies.

A Lucrative but Controversial Road Ahead

While private prison companies are getting ready for a windfall, the moral and social cost of mass deportations is still up for debate. Immigrant rights advocates warn of harm to detained individuals and their families while private prison supporters say the industry provides the resources at a lower cost.

What’s Ahead?

As the Trump administration gets underway the private prison industry is poised to play a bigger role in immigration enforcement. With billions of dollars on the line the next few years will be a battle over the balance between economic interests, human rights and immigration policy.

President-Elect Trump’s plan to deport millions of undocumented immigrants is one of the most massive and divisive initiatives in modern U.S. history. While his plan will appeal to a big chunk of his base it raises serious practical, economic and humanitarian concerns. The potential for legal challenges, public backlash and unintended consequences will test the institutions of the country and the nation’s commitment to human rights, justice and equality. The next few years will decide if these policies will redefine the country and at what cost.

Trump’s deportation plan is not a policy, it’s a recipe for chaos, cruelty and authoritarianism. By looking at the historical context and consequences we can see the dangers of repeating these mistakes. Now more than ever we must reject policies that dehumanize and divide and reaffirm our commitment to justice, dignity and humanity for all.

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Will Trump Deport Green Card Holders?

The question of whether Donald Trump would deport green card holders was a big fear and topic of speculation during his presidency. Green card holders (also known as lawful permanent residents or LPRs) have generally stable immigration status.

But their status is not immune to legal challenges or policy changes. In this post I’ll break down whether green card holders were deported under Trump, the legal framework for green card holder removals, the policies that caused fear and what green card holders can do to protect their status.

Green Card Holder Status and Deportation Risks

A green card allows foreign nationals to live and work in the U.S. indefinitely. But permanent resident status is not U.S. citizenship and comes with limitations.

Legal Basis for Deporting Green Card Holders

Under U.S. immigration law, green card holders can be deported if they violate certain provisions of the Immigration and Nationality Act (INA). Some of the common reasons for deportation are:

Criminal Convictions

  • Green card holders can be deported for:
  • Crimes involving moral turpitude (CIMT) such as theft, fraud or assault.
  • Aggravated felonies including certain drug offenses, violent crimes or firearms violations.
  • Convictions must generally occur after the person gets their green card but certain pre-green card convictions can also trigger removal.

Fraud or Misrepresentation

  • If a green card was obtained through fraud (e.g. sham marriage) or by omitting material facts the individual is subject to removal.

Abandonment of Residency

  • Spending extended time outside the U.S. without maintaining ties (e.g. filing taxes, having a U.S. home) can be considered abandonment of permanent residency.

National Security Threats

  • Involvement in terrorism, espionage or any activity threatening U.S. national security makes a green card holder deportable.

Other Immigration Violations

  • Helping someone enter the U.S. illegally or failing to notify USCIS of a change of address can lead to deportation.
trump, president, british flag

President Donald Trump Administration Policies and Green Card Holders

The Trump administration’s policies were all about enforcement, including measures by customs enforcement, and that created a lot of fear among green card holders. Federal agencies were directed to implement aggressive actions against immigrants, increasing anxiety among green card holders.

The Department of Homeland Security played a significant role in these enforcement strategies, further contributing to the uncertainty. Local law enforcement agencies were also involved, leading to concerns about community trust and cooperation. While green card holders were not a specific target group, several policies created uncertainty and anxiety.

1. Broader Federal Immigration Enforcement Priorities

Early in Trump’s presidency an executive order eliminated the Obama era prioritization guidelines making almost any non-citizen with a criminal record a target for deportation.

Impact on Green Card Holders:

  • Even those with minor or old convictions faced more scrutiny.
  • Some LPRs with DUI convictions or minor theft charges were placed in removal proceedings.

2. More Fraud Investigations

USCIS increased scrutiny of green card and naturalization applications for fraud. This included reopening past cases to investigate potential misrepresentations.

Impact on Green Card Holders:

  • Green card holders who got their status through questionable means (e.g. suspected sham marriages) faced deportation.

3. “Public Charge” Rule

The Trump administration wanted to deny green cards to immigrants who would become public charges. Although this rule applied to new applicants only, it created anxiety among LPRs already on government benefits.

Impact on Green Card Holders:

  • Some feared accessing benefits like Medicaid or food stamps would retroactively put their status at risk, although that was not legally true.

4. Travel Restrictions and Entry Issues

Trump’s travel bans including restrictions on several Muslim majority countries created uncertainty and anxiety for green card holders traveling abroad.

Impact on Green Card Holders:

  • Some LPRs faced secondary inspections upon reentry and had to prove they had not abandoned their residency.

5. More Vetting and Removal for Criminal Offenses

ICE and USCIS coordinated more, and LPRs with past convictions were identified faster.

Impact on Green Card Holders:

  • Those with outstanding criminal matters or old records were more likely to be deported.

Trump’s Immigration Plan

Former President Donald Trump’s immigration plan aimed to overhaul the U.S. immigration system comprehensively. One of the most controversial aspects was the proposal to deport up to 20 million undocumented immigrants, including those with temporary legal status. This ambitious plan also sought to change the way immigration courts operate, intending to speed up the deportation process significantly.

In terms of border security, the plan included constructing a wall along the U.S.-Mexico border and deploying additional federal law enforcement officers. These measures were designed to increase border security and curb illegal immigration. Additionally, the plan proposed overhauling the asylum system to make it more difficult for asylum seekers to enter the U.S., reflecting a broader strategy to limit both illegal and legal immigration.

The plan also aimed to reduce the number of refugees allowed into the country and implement a merit-based system for selecting immigrants. This shift would prioritize immigrants based on skills and qualifications rather than family connections or humanitarian needs.

Immigration Courts and Litigation

The Trump administration’s immigration plan heavily relied on immigration courts to process deportation cases. However, the immigration court system was already overwhelmed, with a backlog of over 1 million cases. The plan to deport up to 20 million undocumented immigrants would have exacerbated this backlog, leading to lengthy delays and significant due process concerns.

Immigration advocates and attorneys prepared to litigate against the administration’s plan, arguing that it violated federal law and the Constitution. They worked tirelessly to provide legal representation to undocumented immigrants facing deportation, which is crucial for ensuring due process and protecting the rights of these individuals. The legal battles highlighted the tension between the administration’s aggressive deportation efforts and the fundamental rights guaranteed by the U.S. legal system.

Congressional Action and Response

Congress played a critical role in responding to the Trump administration’s immigration plan. Democrats in Congress were likely to oppose the plan, citing concerns about its constitutionality and the harm it would cause to immigrant communities. They argued that the plan’s aggressive deportation efforts and restrictive policies were not only inhumane but also legally questionable.

To counter the administration’s actions, Congress could take several steps. Limiting funding for the administration’s deportation efforts was one approach. Additionally, exercising oversight authority to investigate the administration’s actions and ensure compliance with federal law was another critical measure. Introducing legislation to protect the rights of undocumented immigrants and provide a pathway to citizenship was also on the agenda. These steps were essential to safeguarding the rights and well-being of undocumented immigrants in the face of aggressive federal immigration enforcement.

State and Local Protections

States and localities played a crucial role in protecting the rights of undocumented immigrants. Many cities and states had already implemented sanctuary policies, which limited cooperation with federal immigration authorities and provided protections for undocumented immigrants. These policies were designed to create safe environments where undocumented immigrants could live and work without fear of sudden deportation.

In addition to sanctuary policies, states and localities could take steps to provide legal representation to undocumented immigrants facing deportation. Offering other forms of support and resources, such as access to healthcare and education, was also vital. These local protections were essential in mitigating the impact of federal immigration enforcement and ensuring that undocumented immigrants had access to the resources and support they needed.

Border Security and Immigration Enforcement

The Trump administration’s immigration plan included several provisions related to border security and immigration enforcement. These measures aimed to increase the number of federal law enforcement officers deployed to the border and implement new technologies, such as drones and sensors, to monitor the border. Building a wall along the U.S.-Mexico border was a central component of this strategy.

However, these provisions faced widespread criticism for being ineffective and wasteful. Immigration advocates argued that the administration’s focus on border security and enforcement was misguided. They contended that addressing the root causes of immigration, such as poverty and violence in Central America, would be more effective. Instead of punitive measures, the administration should focus on implementing humane and effective immigration policies that prioritize the safety and dignity of all individuals, regardless of their immigration status.

The Reality: Did Trump Deport Green Card Holders?

While there was a lot of fear among green card holders of mass deportations, the reality was more complex. Deportations of LPRs during the Trump administration were mostly of individuals with clear legal grounds for removal, such as criminal convictions or fraud.

Examples of Targeted Cases

1. Green Card Holders with Criminal Convictions: LPRs with aggravated felony or multiple minor convictions were prioritized for removal.

2. Fraudulent Green Card Applications: Some LPRs who got their status through sham marriages or fake documents had their cases reopened and were deported.

3. Abandonment of Residency: Green card holders who spent years outside the U.S. without clear ties were flagged for abandonment and lost their status.

legal, right, justice

Protections for Green Card Holders Against Deportation

Despite the increased enforcement, green card holders have several legal protections against removal:

Due Process Rights

  • Deportation proceedings must follow the rules, including a hearing before an immigration judge.
  • Green card holders can appeal unfavorable decisions, often times delaying or preventing removal.

Government’s Burden of Proof

  • USCIS or ICE must show that the green card holder has violated immigration laws or committed a deportable offense.

Legal Defenses in Deportation Proceedings

  • LPRs can defend against removal by showing rehabilitation, family hardship or eligibility for relief such as cancellation of removal.

What Green Card Holders Can Do to Protect Their Immigration Status

If you’re a green card holder worried about deportation, take proactive steps to protect your status and your peace of mind:

1. Don’t Commit Crimes

  • Even minor offenses can have big immigration consequences.
  • If detained, consult with a criminal attorney and an immigration attorney.

2. Keep Strong Ties to the U.S.

  • File U.S. taxes every year and have a permanent U.S. address.
  • Avoid long trips abroad and get a reentry permit if you must travel for an extended period.

3. Be Honest in Immigration Processes

  • Always tell the truth in immigration applications and interviews.
  • If you think there’s an issue with your original application, seek legal advice to fix it.

4. Stay Informed

  • Keep up with immigration policies and how they affect you.
  • Contact an immigration attorney for updates and advice.

5. Become a U.S. Citizen

  • Naturalization is the best way to be removed-proof, as U.S. citizens cannot be deported.

What to Do If You’re in Danger?

If you think you may be in danger as a green card holder, do the following:

See an Immigration Attorney

  • A qualified attorney can review your case and develop a defense.

Gather Evidence of Your Residency

  • Collect documents that show your strong ties to the U.S., such as tax returns, employment records and family relationships.

Fix Any Past Legal Issues

  • Take care of outstanding warrants or criminal cases with legal help.

Green Card Holder Deportations – The Risks and Reality

While the Trump administration under former President Donald Trump caused green card holders to be anxious, the reality was that removals of LPRs were limited to those who violated immigration laws. President Donald Trump’s policies led to increased scrutiny and enforcement, showing that green card holders need to be vigilant and compliant.

President Trump’s administration emphasized enforcement, which created a climate of fear among immigrants. The potential for a second Trump administration raises concerns about even stricter immigration policies and enforcement measures.

If you’re a green card holder, know your rights and responsibilities. Don’t commit crimes, keep strong ties to the U.S. and consult with an immigration attorney. If you want to be extra safe, become a U.S. citizen.
Stay informed. Consult. Protect.

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