On June 18, 2020, the Supreme Court of the United States issued its ruling in Department of Homeland Security v. Regents of the University of California, which declared that the Trump administration’s rescission of the Obama-era Deferred Action on Childhood Arrivals (DACA) program was an arbitrary and capricious abuse of its authority under the Administrative Procedure Act (APA). The 5-4 vote couldn’t have been narrower.
For now, anyway, the decision protects about 700,000 DACA immigrants from deportation, approximately equal to the population of Washington, D.C. These DACA “dreamers” (as the popular press refers to them) can also continue to work legally in the US, and they can renew their DACA status when it expires.
The fragility of the Supreme Court’s legal reasoning, however, has left storm clouds gathering over the future of every DACA dreamer.
DACA was originally crafted in response to a moral dilemma — many immigrants who were considered unlawfully present in the US had come as children in the custody of their parents. Some do not speak their home country’s native language, and some have no memories of their early life there.
Why should these people, who had no choice about their initial entry into the US, be deported to a country that they might be completely unfamiliar with?
To be sure, DACA was purely a stopgap measure. It did not offer a path to permanent residency or citizenship — instead, it provided temporary relief from deportation proceedings as well as permission to work legally in the US. DACA expires every two years unless it is renewed, which renders DACA dreamers extremely vulnerable to shifting political winds.
To be eligible for DACA protections, you must meet the following qualifications:
In a nutshell, DACA dreamers are not like other undocumented migrants — they have been vetted by US immigration authorities, and they have met certain standards, such as lack of a serious criminal record.
The dispute that underlies the Department of Homeland Security v. Regents of the University of California arose because the Department of Homeland Security attempted to rescind DACA based on the reasoning contained in a federal court decision in Texas v. The United States.
Although this case is a decision issued by the Fifth Circuit Court of Appeals, with jurisdiction over only a few southern states, it remains the law (at least within the Fifth Circuit) because the Supreme Court has so far failed to overrule the decision.
If the DHS rescinds DACA, it must demonstrate a rational basis for doing so. The Supreme Court does not have to agree with the reasoning advanced by the DHS, because the DHS enjoys discretionary authority on DACA matters. The DHS must simply demonstrate that its decision (i) is not arbitrary or capricious, and (ii) is not based on an obvious misinterpretation of settled law.
The main reason why the Supreme Court overruled the Department of Homeland Security’s rescission of DACA is that it concluded that it was based on a misunderstanding of the legal implications of Texas v. The United States.
In that case, the court ruled that DACA recipients can be legally denied many of the benefits that US citizens and many immigrants enjoy, such as Medicare, federal student aid, and work authorization.
The reasoning advanced by the DHS that triggered Supreme Court scrutiny was that since DACA recipients can be legally denied these benefits, they have no right to reside in the US and are therefore deportable.
The fact that the US Supreme Court disagreed with the DHS on the impact of Texas v. United States on DACA dreamers’ residence status in the United States does not prevent the DHS from trying again by challenging DACA based on different reasoning.
President Trump has made it clear that he will try again to rescind DACA. As he wrote on June 19, 2020, “We will be submitting enhanced papers shortly in order to properly fulfil[sic] the Supreme Court’s ruling & request of yesterday.”
Under the circumstances, it would be easy for White House lawyers to redraft the challenge to DACA to render it compliant with Supreme Court demands — which would mean the end of DACA, at least while Trump remains in office.
If the Trump administration rescinds DACA, we are not going to see 700,000 people leave the US all at once. Nevertheless, the consequences will be far-reaching. Some of the most obvious immediate changes are described below.
All 50 states allow DACA recipients to hold driver’s licenses, including the 38 states that don’t issue driver’s licenses to illegal immigrants who lack DACA protections. If DACA ends, DACA dreamers in 38 of the nation’s states might find themselves unable to drive legally.
Lack of access to driving privileges likely means a lack of access to gainful employment. It can also mean a lack of access to domestic flights since DACA dreamers wouldn’t dare use their passports.
If DACA is rescinded, DACA recipients would no longer be considered legally present in the United States. Currently, DACA recipients can access higher education at in-state tuition rates in 20 states, provided that they establish state residency on the same terms as US citizens.
If DACA is rescinded, this number might drop to zero. In fact, in some states, DACA recipients would likely be banned from public universities altogether.
Imagine that a former DACA recipient, present in the US since she was four years old, becomes seriously ill but is reluctant to go to the hospital because she fears deportation to a country that she can barely remember and whose language she cannot speak.
Even if it is not true that the hospital would report her to immigration authorities, her fear alone could prevent her from seeking needed medical assistance. And if she turns out to have contracted a contagious disease, she could spread it to others.
DACA, as well as immigration reform in general, is good for the economic and social fiber of the country. The diversity, talent, and social integration that immigration brings are powerful drivers of economic growth, and they have been America’s “secret sauce” from even before the Constitution was written. Immigration, more than anything else, is what made America happen.
Think of countries like Japan and Russia, where the general population, as well as the labor force, shrink year after year, resulting in economic stagnation with no end in sight. Japan in particular has been in the economic doldrums for a generation now. Meanwhile, even China is facing a demographic crisis for the same reasons — an aging population and a shrinking labor force.
But this is not so much the case in the USA, despite the declining birth rate among native-born citizens and the ongoing retirement of the Baby Boom generation. The reason for our economic resiliency couldn’t be clearer — immigration keeps our labor force growing and our economy vibrant (at least while no virus pandemic is stalking the land).
The youthful demographics of most of our immigrants offset the aging of our native-born workforce in a way that non-immigration countries cannot hope to match. Indeed, even the Congressional Budget Office (CBO) admits that the aging of the US workforce is responsible for 70 percent of the decline in potential economic growth.
The CBO also concludes that the efforts of America’s “dreamers” contribute tens of billions of dollars to the US economy. If DACA ends, the US economy will lose billions of dollars, and industries such as restaurants, construction, hospitals, retail outlets, technology, education, and design will all feel the pinch in a big way.
The issues at stake are far broader than DACA. Indeed, they go straight to the heart of America’s soul. Other than the idea of liberty, there has been no greater contribution to the American identity, and our astonishing accomplishments as a nation in only 250 years of existence, than our acceptance of immigrants.
Unlike almost every other country in the world, the US has never been conceived of as a family bound by blood, but as a community built on an idea — the idea of liberty. And the idea of liberty includes the commitment to an open society that welcomes outsiders. Arguably, no idea has worked better in the entirety of human history. We turn our backs on it at our peril.
The myth that immigration increases the nation’s crime rate is utterly unfounded. These days, it is propagated by an administration that stokes fears of Mexican rapists and Middle Eastern terrorists, as well as sensationalist news outlets with political axes to grind who prominently report the relatively few crimes committed by immigrants while ignoring the vast majority of immigrants who are productive and law-abiding.
Consider incarceration rates, for example, since they are a relatively accurate barometer of the prevalence of serious crime among a particular group:
In other words, the truth is the precise opposite of what the fear mongers say it is.
There is a falsehood floating around many sectors of society that the consumption of public assistance resources by foreign-born people outweighs their work-based contributions. As a consequence, so the reasoning goes, our Social Security and Medicare systems will go bankrupt and our elderly will become destitute because we welcome immigrants. This assertion is untrue for a number of reasons.
One of these reasons that this assertion is untrue is that many non-citizens are ineligible for most public assistance programs.
Moreover, undocumented migrants are often afraid to apply for the few public assistance benefits that are available to them, out of fear of revealing their presence in the US to immigration authorities who could incarcerate or deport them. They may pay Social Security taxes without ever collecting benefits, for example.
The retirement of the Baby Boom generation is a phenomenon that is already in progress — 345,000 baby boomers leave the workforce every month. Since the Baby Boom generation was the largest generation in American history, their retirement means a huge influx of US citizens into government entitlement programs as Social Security and Medicare, both of which are predicted to enter insolvency as early as 2021.
Meanwhile, new contributions to these entitlement programs will be the responsibility of the much smaller Generation X and Millennial generations. Without new additions to the labor force, the situation will further deteriorate. The obvious solution to this dilemma is to import new workers from abroad.
Not only the possible rescission of DACA, but the entire anti-immigrant climate that prevails throughout much of the federal government is likely to put America’s senior citizens — and perhaps the rest of the country — into economic crisis as safety nets begin to fail.
History, as well as extensive economic research, has proven time and time again that a larger and more diverse population results in more efficient exploitation of available resources and a more sophisticated division of labor.
Most US economists agree that even low-skilled immigration increases income for the average American worker. The idea that high-skilled immigration intensifies this effect is beyond dispute among economists.
This should come as no surprise to those familiar with word demographics. Take the nations with the most diverse workforces in the world — the United States, Canada, Australia, and Western Europe, for example — and consider how closely this group corresponds to high per-capita income.
Even prosperous but non-diverse economies such as Japan are now importing migrant workers to fight lingering economic stagnation. Immigration helps everyone.
DACA, or its functional equivalent, can be kept alive indefinitely through Congressional action. Meanwhile, states can help ease the burden on dreamers if DACA is rescinded.
Congress must pass legislation ensuring that dreamers can permanently live, work, and ultimately gain citizenship in the United States. The DREAM Act, first proposed in 2001, is similar to DACA, with one important distinction: if it was passed, it would be Congressional legislation rather than an executive order.
Under a friendly administration (a Democratic president, for example), it would stand a fairly good chance of passage.
Once passed, the DREAM Act could not be reversed with a stroke of the pen the way an executive order can be. Instead. it would have to be repealed by a majority vote of both the Senate and the House of Representatives.
If the President at the time vetoed the repeal, Congress would need a supermajority to override the veto. In other words, a DREAM Act could keep the dreamers safe.
Indeed, DACA might be rescinded. Then again, it might be revived during a subsequent administration, depending on the results of the 2020 presidential elections. Some of the actions that states could take to protect dreamers after the rescission of DACA include:
One way or the other, by working together and providing our wholehearted support, we can protect the DACA dreamers and ensure a better future for both them and us.
We are facing the most challenging healthcare and economic crises in 100 years. The pandemic impacts everyone.
As immigration attorneys, we at the Herman Legal Group understand the moral and economic imperative to support undocumented immigrants, including those with DACA¹ work authorization, many of whom are valiantly working on the healthcare front lines² to keep us safe and healthy during the Corona Virus Pandemic. Millions of undocumented workers also play a vital role in critical industries that impact the nation’s food supply chain³ and essential industries.
Undocumented workers are often toiling in high-risk conditions of virus transmission, unprotected by any Personal Protection Equipment, and are getting sick.
Yet, despite their important contributions to the United States, most undocumented workers (and even some U.S. citizen spouses) are not eligible to receive stimulus checks from the Federal Government, and their families are vulnerable and disproportionately feeling the devastating impact of the shutdown of the economy. Even during this pandemic, the undocumented population continues to be vilified and face the prospect of arrest, detention, deportation, and permanent separation from their U.S. citizen children.
We understand the unique financial and emotional struggles that undocumented and mixed-status families face in the United States. We also understand the important economic and social contributions that immigrants make to the United States.
For this reason, we are honored to sponsor the $1,000 Essay Contest: “What do YOU think of when you hear the word ‘IMMIGRANT’?”.
¹ Deferred Action for Childhood Arrivals program provides temporary work authorization to eligible applicants who entered the U.S. as a child prior to 2012 and are out of status.
² In 2018, there were almost 280,000 undocumented workers in the healthcare industry, including 62,600 DACA-eligible individuals. New American Economy.
³ Overall, 3.8 million immigrants make up more than one in five workers in the U.S. food sector. They are among the essential workers who leave the safety of their homes to handpick fresh vegetables and fruits, processed meat and seafood, stock shelves with groceries, and deliver food to people’s doorsteps. New American Economy.
To participate in the contest, applicants should write an essay of at last 300 words, in any language, answering the following question:
“U.S. policy on immigration has increasingly become more aggressive and unwelcoming to immigrants. Despite the data to the contrary, many people now believe that immigrants undermine the U.S. economy and do not make the nation stronger. What do you think of when you hear the word “Immigrant”?
We are hoping that this contest inspires members of the undocumented community to share their personal feelings about being an immigrant who contributes to the well-being of the United States, who has deep ties to the United States, who may have U.S. citizen children or other family members, and yet has no legal pathway to normalize their immigration status.
We will share the winning essay and will keep the winner’s identity confidential unless otherwise authorized by the winner. We will also be publishing some of the non-winning essays in order to help give voice to the undocumented, to help stimulate a healthier conversation in the U.S. about immigration, and to encourage our elected officials to move on legislation that would provide a pathway to permanent residency and ultimately citizenship to the undocumented.
¹ The LIFE Act, which provided a pathway to citizenship for undocumented immigrants, expired on April 30, 2001.
² Verified by valid Employment Authorization Document indicating DACA, TPS, pending asylum, or pending Cancellation of Removal for non-LPR, scheduling notice for future immigration court hearing, or personal attestation. All information will remain confidential.
³ As defined by any Governor’s Executive Order pertaining to COVID-19 and stay-at-home directive.
Share your voice! People who wish to participate should send their essay as an attachment in an email to ImmigrantStrongUSA@gmail.com by August 1, 2020.
In the body of the email, applicants should include the following information:
Once the application period has ended, our essay committee will review the essays and choose a winner by September 1, 2020. The winnder will receive $1,000.
#ImmigrantStrong
By applying, all applicants consent to the reproduction and publishing of their essays. Name and other contact information shall always remain confidential.
Founded in 1995, the Herman Legal Group focuses on immigration law, including family immigration, removal defense, employment-based immigration, investor immigration, asylum, immigration waivers. We are headquartered in Cleveland, Ohio, and have additional offices in Columbus, Columbus, Cincinnati, Dayton, Toledo, Detroit, Buffalo, Pittsburgh, Charlotte, Miami, and Dallas. Our law practice is federal and we serve clients, in over 12 languages, in all 50 states. For over 25 years, we have earned the reputation of highly-skilled, compassionate, and innovative immigration lawyers. The firm, which serves clients from Fortune 500 companies to undocumented workers, from technology workes to NFL teams, is recognized in U.S. World News & Report’s “Best Law Firms in America.”
To contact our firm, call +1-216-696-6170 or submit your essay to ImmigrantStrongUSA@gmail.com no later than August 1, 2020/strong.
Attorney Richard Herman
Richard Herman is a nationally renowned immigration lawyer. As a lawyer, activist, author, and speaker, he has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (And How They Will Save the American Worker) (John Wiley & Sons, 2009). Richard is one of the pioneers of the movement by Midwest cities to attract and welcome immigrants who can help grow the economy, create jobs, and reverse progressive depopulation. He regularly advises cities and counties on innovative ways to leverage existing immigration laws to create jobs and attract foreign direct investment.
A lawyer without border: voted for inclusion in the 2015-2020 editions of The Best Lawyers in America© and listed in Super Lawyers© for more than fourteen consecutive years, Richard began his immigration law career by moving to Moscow, Russia in 1993, straight out of law school, to eventually open a law office two blocks from the Kremlin to represent post-Soviet entrepreneurs. As an authority on U.S. immigration law and a provocateur for immigrant-friendly, pro-entrepreneur policies, Richard is often invited to strategize and deliver keynote addresses around the country, as he has often done for Michael Bloomberg and Rupert Murdoch’s Partnership for a New American Economy, chambers of commerce, universities, and cities. Known for his direct and sometimes controversial style, Richard has appeared on FOX News (The O’Reilly Factor), National Public Radio, and has appeared in the New York Times, USA Today, BusinessWeek, Forbes, Inc., PC World, Computerworld, CIO, TechCrunch, and InformationWeek. Richard is married to Kimberly Chen, an immigrant from Taiwan who overcame her undocumented status to become an American physician. They live in the Cleveland area with their two children, whom they are raising to be citizens of the world.
The Development, Relief, and Education for Alien Minors Act, popularly known as the DREAM Act, is a proposed federal statute that was first drafted in 2001.
The Act, which has never been passed by Congress, is designed to protect undocumented immigrants who first came to the United States as children.
Most of the people targeted for relief under the DREAM Act were not at all responsible for their initial entry into the US — in fact, the vast majority were in the custody of their parents at the time of their entry.
Many have never been to their native countries, and some of them do not even speak the native languages of the countries they emigrated from. Public opinion polls consistently show that a majority of Americans support the DREAM Act.
The DREAM Act was originally an attempt to respond to the state of affairs as it existed in 2001 — childhood arrivals to the US could not work legally, and they were subject to deportation and a bar to re-entry to the United States at any time.
The DREAM Act, if passed by Congress, would legalize the presence of these people in the US, and it would even provide a path to eventual permanent residency and citizenship.
Although the Dream Act was passed by the House of Representatives in 2010, it failed in the Senate. After it failed to pass the Senate once again in 2011, President Obama issued an executive order known as Deferred Action on Childhood Arrivals (DACA).
DACA is essentially a watered-down version of the DREAM Act. Following are some of its strengths and weaknesses:
The Obama administration issued the DACA executive order, and President Trump attempted to revoke it. This attempt, however, was defeated by the US Supreme Court on procedural grounds.
Unfortunately for those who live under the umbrella of its protection, the Trump administration has announced its intention to try again to revoke it. Due to the nature of the Supreme Court’s procedural objections, it appears that the second attempt is likely to succeed.
DACA beneficiaries, however, have two reasons for hope:
Although the DREAM Act has been revised many times since 2001, and it may very well be revised again before it is finally passed, beneficiaries of the DREAM Act will probably have to meet the following requirements to be granted conditional status:
Once you achieve conditional status, you will have six more years to “graduate” to permanent residence status. To obtain permanent residence, you must either:
During this period, you will be eligible to apply for work-study programs and higher education grants.
Once you successfully complete the requirements, you will be granted a “green card”, and you will eventually be eligible to apply for US citizenship.
Curious about DACA, its protections, and how DACA recipients contribute to the U.S economy? We cover everything you need to know below. Read on!
DACA (Dream and Promise Act) stands for Deferred Action for Childhood Arrivals. With DACA, undocumented immigrants who were brought to the US as childhood arrivals receives the following:
While DACA doesn’t lead to citizenship, these undocumented immigrants, known as DREAMers, have had success in the program. Wages, employment status, and mental health has improved greatly for DREAMers.
DACA protections last for two years, and can be renewed after.
DACA recipients are young, undocumented immigrants who entered the United States unlawfully before their 16th birthday.
Young, undocumented immigrants basically have their lives in limbo.
Once documented and under DACA status, however, new opportunities open up for them. Jobs, spaces, and higher education are more probable for them to access.
As a result, economic growth happens in the US.
DACA recipients’ eligibility is as follows:
If you fulfill the requirements above, then yes, you’re part of the DACA-eligible individuals!
The approximate active DACA recipients stand at 600,000, while DACA-eligible recipients remain at over a million.
The economic and fiscal impact of this number can’t be underestimated, but we’re here to outline Dreamers economic contributions one by one:
DACA recipients tend to be of working age. If not, most of them will reach working age within a few years at most.
Many of the younger DACA-eligible immigrants are enrolled in school, indicating that they have yet to reach their full earning potential.
Nevertheless, by 2017, over 93 percent of DACA-eligible immigrants were employed.
Their economic impact has a major effect to the only country that they recognize as their home.
According to the New American Economy Research Fund, DACA-eligible immigrants collectively earn more than $20 billion per year, most of which is either paid out in federal taxes or spent in the US economy.
This amount almost certainly understate the significant contributions these people would make if their status was stabilized by supportive Congressional legislation.
About 45 percent of DACA-eligible immigrants — more than half a million people— work in in essential industries. This rate is more than twice as high as the US population as a whole.
Here are the numbers of DACA-eligible young people in essential industries:
The economic impacts of their contribution as essential workers is vast.
Previous research, including a nationwide survey, found that among DACA recipients (people who have registered for DACA), about five percent started their own business after receiving DACA benefits.
This number climbs to eight percent among DACA recipients who are 25 years and older. Since many of these new DACA businesses employ American workers, it might be fruitful to compare these figures with the three percent entrepreneurship rate among the US population as a whole.
Over 60 percent of US jobs are in the service sector, according to the Bureau of Labor Statistics The retail, healthcare, and hospitality sectors combined provide over 135 million jobs. The service-oriented nature of the US economy means that a strong consumer base is a critical element of national prosperity.
Due to their sheer numbers as well as their presence in the US, DACA-eligible immigrants are an important part of the consumer base of the US economy.
DACA-eligible immigrants collectively possess substantial spending power in terms of discretionary income, or how much income is left over after paying taxes.
DACA-eligible immigrants enjoyed over $19 billion in spending power in 2017. That number continues to grow, as young DACA-eligible immigrants graduate from school and enter the workforce.
DACA-eligible immigrants pay over $2 billion dollars in taxes to the federal government, in addition to almost that much in state and local taxes. These taxes are used to fund public schools, police forces, sanitation services and other vital functions.
Despite their significant tax contributions, DACA-eligible immigrants do not use many public services, if for no reason other than the fact that they are ineligible for most of them. DACA-eligible immigrants are ineligible for the following public benefits, regardless of whether they have registered for DACA benefits:
High employment rates, high tax contributions and minimal use of public benefits mean that DACA-eligible immigrants contribute much more than they take from the US economy — and that the US economy would suffer from the loss of the services they provide.
First-time applicants are currently barred from applying to the DACA program! You may use the following information if you’re renewing, but until the DACA program ruling is changed, first-time applicants will not be considered.
A federal judge in Texas is the main actor in repealing DACA in the Biden administration.
However, this isn’t the first time new DACA recipients were barred from the program. The DACA was first started by the Obama administration, but the Trump administration stopped new applications.
A federal government judge renewed the DACA program in 2020 after the Trump administration barred it, but it was, as we mentioned, repealed recently by a Texan judge.
You’re considered one of the current DACA recipients if your application was approved before July 16, 2021. You can still renew as well.
The Department of Homeland Security can also still accept initial DACA filings, but will not be able to approve it.
To date, there has been widespread support regarding the reinstatement of DACA from organizations, activists, and politicians.
The National Immigration Law Center, Immigrant Legal Resource Center and Migration Policy Institute regularly conducts studies and surveys regarding DACA recipients. Some statistic include at least one parent of over 250,000 residences being a DACA recipient.
However, it has been found that the amount of DACA recipients are still lacking – only three percent of Chinese nationals, for example, held DACA status among those eligible. More work must be done to create permanent protection for DACA recipients.
Congratulations – you’re here to renew your DACA recipient status! To do so, simply follow these steps:
To be eligible for a DACA renewal, you must have stayed in the United States since your most recent DACA request. You must not have been convicted of a felony or misdemeanor. You must also not have left the US by or after the 15th of August, 2012, without advance parole.
You have to complete and submit the following:
If it applies, you should also supply the following additional documents:
To avoid processing delays, respond to evidence requests and submit all these additional documents in time.
A renewal fee of $495 must be paid.
Now, all you have to do is wait as the USCIS processes your request within 120 days!
DACA eligibility for Medicaid is not on the national level just yet. Instead, only the active DACA recipients in Minnesota, California, and New York can apply for Medicaid.
Despite the protection that the DACA eligible population enjoys, the program itself doesn’t make DACA recipients lawful permanent residents or U.S citizens.
However, there may be a path for DACA recipients to hold a green card. DACA recipients can enjoy the economic benefits of becoming a U.S citizen through marriage-based green cards.
The Deferred Action for Childhood Arrivals Program recipients can apply for something called the Advance Parole. The Advanced Parole is essentially a way for DACA recipients to travel abroad for specific reasons, mainly education, employment or work authorization, or humanitarian purposes.
Due to their legal status, DACA recipients cannot travel abroad for vacations.
Federal financial aid is unfortunately not within the DACA recipients’ protections. However, some states may allow DACA recipients to receive local or state-wide financial aid.
DACA is essential to American progress and the American economy.
According to the CATO institute, more than $60 billion may be lost if DACA recipients are deported. Removing DACA recipients from the program only worsens both local economies and the nation at large. The economic impact is worse: economic growth will go down by nearly $300 billion.
They pay more than $2 billion in tax revenue alone.
After calls to pass legislation to provide DACA protection, more than 800,000 young adults seize the opportunity to seek education, housing, employment, and businesses.
These benefits mean the world to DACA recipients. Just the temporary protection will allow them to make Dreamers’ citizen children and families day-to-day living easier, allowing them to make rental payments annually, manage mortgage payments, and directly contribute to American progress.
If DACA’s permanent protections are eliminated, the U.S would lose Dreamers’ contributions of nearly $460 billion to our GDP.
Dreamers, despite the lack of immigrant legal status, contribute a lot to American economy.
We hope this article shed some light on DACA, its recipients, and their contributions. Contact us here for more information.
See you in the next article!
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