The dismantling of the Trump administration´s restrictive immigration policies began on January 20, 2021, the day that Joseph Biden was inaugurated as the 46th President of the United States. Below is a summary of some of the new Biden administration´s immigration-related reforms immediately following Inauguration Day.

January 20, 2021 Executive Order: “Revision of Civil Immigration Enforcement Policies and Priorities”

On his inauguration day, President Biden revoked a Trump executive order entitled “Enhancing Public Safety in the Interior of the United States.” This order expanded the classes of undocumented workers prioritized for deportation, withheld many federal grants from “sanctuary cities”, and provided for the hiring of 10,000 new ICE officers. All of these initiatives have been repealed by Biden’s Inauguration Day executive order

January 20, 2021: DHS Memorandum: Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities

Also on Inauguration Day, the Department of Homeland Security (DHS) set forth certain specified enforcement priorities for ICE, which it supervises. These priorities include;

• Migrants who pose a credible threat to national security, such as terrorists (but not including most common criminals);
• Recent migrants who arrived in the United States on or after November 1, 2020.
• Migrants who have been convicted of an “aggravated felony” and who represent a threat to public safety.

This memorandum superseded six previous DHS memoranda issued during the Trump administration. It also implemented a 100-day suspension of deportation for many migrants. This suspension, however, has run into trouble in the courts and is not in effect at the time of this writing.

January 20, 2021: Presidential Proclamation “Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction”

This Proclamation halted the construction of Trump’s famous border wall in the midst of its construction. The Biden administration has not yet decided what to do with the portions of the wall that have already been built. Biden has suggested that he may take a multi-pronged approach to border security that includes the existing portions of the border wall together with other physical barriers, additional border officers, improved technology, and the use of airplanes, boats, and submarines.

January 20, 2021; Proclamation on Ending Discriminatory Bans on Entry to The United States

This proclamation revoked the Trump administration ban on immigraton from Iran, Libya, Somalia, Syria, Yemen, Venezuela, North Korea, Belarus, Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania.

January 25, 2021 Executive Order: “Ensuring the Future Is Made in All of America by All of America’s Workers”

This executive order revoked the Trump administration’s executive order “Buy American and Hire American”, which slapped unprecedented restrictions on the H-1B employment visa program. One aspect of the Trump administration executive order that the Biden administration might bring back to life is an attempt to increase the wages of H-1B workers and allocate visas to more qualified applicants.

This would help immigrants who were granted visas, but might also have the effect of freezing out less qualified immigrants.

February 2, 2021 Executive Order: “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”

This executive order operates more as a statement of intent than a concrete policy declaration. It directs the Secretary of State, the Attorney General, and the Secretary of Homeland Security to review existing agency actions, policies, etc. that impact immigration, identify those that conflict with Biden administration goals, and recommend ways to revoke or amend any effects that operate in derogation of these goals.

February 11, 2021, DHS Announcement: Termination of the “Remain in Mexico” Policy

The Trump administration initiated the so-called “Remain in Mexico” policy with respect to Central American migrants, with the consequence that massive tent cities sprang up on the southern side of the US border with Mexico.

The termination of this program means that about 25,000 migrants will be able to register for asylum interviews in the United States and wait in the US for their claims to be Biden Administration.

February 18, 2021: The US Citizenship Act of 2021

The US Citizenship Act of 2021 was drafted to be the centerpiece of the Biden Administration’s immigration reforms. Presented to Congress on February 18, 2021, it is comprehensive legislation that covers almost every major aspect of US immigration law and policy.

Although much of it is given little chance to pass through a divided Congress, it seems almost certain that parts of it will become law.

Certain parts of this bill reflect a profound change in approach to immigration, It contemplates, for example, attacking the root causes of immigration by providing aid to El Salvador, Guatemala, and Honduras on the condition that they work to eradicate corruption, violence, and poverty that are driving their populations to the US border.

According to the US Customs and Immigration Services (USCIS), applicants are not eligible for naturalization if they have abandoned their Legal Permanent Resident Status (LPR).

Abandonment is a legal term that generally is determined at the discretion of the USCIS. Abandonment means that an LPR demonstrates the intent to no longer reside in America as an LPR – after the person has departed the United States. The USCIS also provides that if a parent abandons his/her LPR status, that abandonment is imputed to a minor child in the parent’s control and custody.

An LPR is permitted to leave the US but they need to be careful. If they stay abroad for too long and depending on the circumstances, the left may result in an abandonment of LPR status.

The abandonment provision applies even if the LPR leaves the US and then is improperly permitted to return. The reason abandonment affects the naturalization process is because naturalization requires continuous residence in the US. Abandonment means the LPR didn’t continually reside in America.

Once it’s determined an LPR fails to meet its LPR status, the US Department of Homeland Security (DHS) will issue a Notice to Appear (Form I-862) at a removal proceeding. At the removal hearing, the LPR will normally deny the naturalization application due to the abandonment.

The final determination about whether an LPR has abandoned his/her LPR status is made by an immigration judge. The applicant only loses his/her LPR status if and when the immigration judge issues a removal order – and that order becomes final.

What Abandonment Factor Does the USCIS Consider?

LPR applicants must establish that they did not abandon their LPR status once the USCIS makes an abandonment determination. Some of the factors the USCIS will review include:

How long the LPR was absent from the US?

A short-term stay or even an extended stay abroad doesn’t automatically mean an LPR has abandoned his/her status. LPRs should understand though that the longer they stay abroad, the more likely the USCIS will consider that their travel outside the US constitutes abandonment.

It helps the LPR’s position if an extended stay is for reasons beyond the control of the LPR such as a long-term illness. Returning to the US for a short visit likely will still be considered abandonment if a large part of the LPR’s time is spent outside the US.

The reason the LPR left the US

The purpose for the time outside of the US is a factor the USCIS will consider. It helps the LPR’s position if he/she “has a definite reason for proceeding abroad temporarily.” A common example of a good reason to be abroad is to visit with a parent who lives outside the US – when that parent is in ill health.

For help obtaining a returning resident visa,, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us.

TPS Extension for Honduras, El Salvador, Nicaragua, Haiti, Sudan, Nepal

The Temporary Protected Status (TPS) program is a unique program in that it protects the masses of people who could be in grave danger if they returned to their country. Unfortunately, like border and interior enforcement, Deferred Action for Childhood Arrivals (DACA), and the immigration courts, TPS has also been in focus during the four years of the Trump administration, putting the TPS recipients at risk of losing their status.

However, besides the possibility of having a friendlier government to deal with, immigrants, including TPS recipients have been hearing some good news lately.

USCIS TPS Extensions News

In an update on their official website, the Department of Homeland Security (DHS) has announced a TPS automatic extension for natives and residents of El Salvador, Haiti, Sudan, Nepal, Honduras, and Nicaragua. The status of immigrants from these countries will be extended through October 4, 2021, provided the recipients remain individually eligible. The beneficiaries can also apply for a new Employment Authorization Document (EAD), according to the notification.

Legal Battles over TPS

TPS Extension – Haiti and other South American countries

The Trump administration’s actions against TPS-based immigration has been hotly contested on the legal front. In January 2018, the National Association for the Advancement of Colored People (NAACP) (NAACP v. DHS) alleged that the November 2017 decision to remove the TPS extension for Haiti was based on racial and/or ethnic discrimination.

In March 2018, nine TPS recipients and five children of TPS holders (Ramos et al v. Nielsen) argued that DHS used a narrow interpretation of the federal law to remove TPS status for nationals of Haiti, El Salvador, Nicaragua, and Sudan. In March 2018, 10 Haitian TPS beneficiaries, the newspaper Haïti Liberté, and the Family Action Network Movement, Inc. (Saget v. Trump), argued that the decision to terminate TPS for Haiti was an arbitrary action that did not follow the procedures required by the APA.

TPS Extension – Nepal and Honduras

In February 2019, six TPS beneficiaries and two children of TPS recipients (Bhattarai et al v. Nielsen) alleged that the terminations of TPS for Honduras and Nepal violated the standards and practices of the APA, equal protection, and the Fifth Amendment. Besides these lawsuits, several others were also filed by TPS beneficiaries and immigrant rights organization across the country.

In the notice about continuation of documentation, the USCIS states that the “notice ensures DHS’s continued compliance with various court orders issued by the federal district courts in the Ramos, Bhattarai, and Saget lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Sudan, Nicaragua, Honduras, and Nepal, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.”

TPS Renewal Beneficiaries by Demographics

The TPS program has helped numerous foreign nationals to remain and work in the U.S. while avoiding dangerous conditions in their country. In terms of total TPS holders, there are 411, 326 beneficiaries according a report by The Congressional Research Service.

In terms of beneficiaries by country, 247, 697 or more than half are from El Salvador, followed by 79, 415 from Honduras and 55, 338 from Haiti. Other countries with TPS benefactress include Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.

Rules for Extensions

It’s usually the job of the Secretary of Homeland Security to designate a country for TPS. Officially, TPS is temporary immigration given under the Immigration and Nationality Act (INA) to eligible nationals of a TPS country or persons who don’t have a nationality but live in a designated country.

Besides obtaining EADs, recipients can also travel abroad after obtaining approval from the DHS. The only time Congress granted TPS was 30 years ago (1990) to eligible El Salvadorians, according to the Congressional Research Service.

According to the USCIS, the Secretary may designate a country for the following reasons:

• Ongoing armed conflict (such as civil war)
• An environmental disaster (such as an earthquake or hurricane), or an epidemic
• Other extraordinary and temporary conditions

TPS offers beneficiaries protection from removal from the US and the opportunity to work and support themselves and their families back home. The extension notice is a breath of fresh air for the many TPS holders living in the country. Hopefully, the Biden administration will keep its promise and reverse the actions and attitude of the Trump administration towards legal (and illegal) immigrants.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”

He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

President Biden is expected to offer relief to the so-called “DACA Dreamers” — undocumented immigrants who arrived in the United States as children. What form this relief will take is unclear, however. He could undertake more sweeping reform with Congressional support, and one of the options for Congress would be to pass the American Dream and Promise Act. Even without this, Biden could incorporate some of its provisions into an executive order.

The American Dream and Promise Act of 2019 (the “Act”), not to be confused with the older DREAM Act, was first introduced in March 2019 with over 200 cosponsors. The bill offers protection from deportation and eventual green cards to DACA recipients, Temporary Protected Status (TPS) holders, and people subject to Deferred Enforced Departure (DED). The bill passed the House with seven Republican defectors but never passed the Senate.

Protections for Dreamers

The Act would create a new “conditional permanent resident” immigration status, which would be valid for up to 10 years. It would allow the nation’s 700,00 DACA recipients, plus 1.6 million DACA-eligible immigrants, to remain in the US, work, and even travel abroad and return to the US during the validity of the visa.

Conditional Permanent Residence

To qualify for the new “conditional permanent resident” status, you would be required to meet the following requirements:

• Prove that you arrived in the US before you turned 18;
• Prove that you lived in the US for a continuous period of at least four years before the date that the Act is enacted (whenever that is);
• Prove that you have been admitted to a college, university, or another institute of higher education; earned a high school diploma, GED, or high school equivalency in the United States; or are currently earning a high school diploma, GED, or high school equivalency in the United States;
• Submit to and pass background checks after submitting your biometric data;
• Register for the Selective Service (subject to age and gender restrictions); and
• Pay the appropriate application fee.

Grounds for denial or revocation

Under certain circumstances, your application could be denied or even revoked after it is initially accepted:

• The Department of Homeland Security (DHS) could deny your application if it believes that you are a public menace or that you participated in gang activity during the past 5 years. You can appeal a rejection to the court, and the DHS would have to show that its rejection was based on “clear and convincing evidence.”
• Even after you receive conditional permanent residence, it can be revoked if you commit a serious crime, or if fraud is found in your application.

Unconditional Permanent Residence

The status of conditional permanent resident, because it is only valid for 10 years, is not as secure as the status of an unconditional permanent resident (the status that most green card holders receive). Nevertheless, once you obtain conditional permanent residence, your next step towards unconditional permanent residency, and potentially future US citizenship, would be to:

• Obtain a degree from a university or college, or complete at least four semesters of a bachelor’s degree (or higher) program in the US;
• Complete at least two years of US military service with an honorable discharge; OR
• Work for at least three years (certain restrictions apply).

Once you have met the above-described requirement under the education, military, or employment track, you must meet the following requirements in order to obtain unconditional permanent residency:

• You must live in the United States continuously (short vacations are allowed);
• You must demonstrate rudimentary English language reading, writing, and speaking abilities;
• You must demonstrate a rudimentary understanding of US history, political principles, and government;
• You must demonstrate good character;
• Your criminal record must be clean, or at the very least free from both felony convictions and multiple misdemeanor convictions; and
• You must pay the appropriate application fee.

If some time passes between the time you apply for conditional permanent residency and the time you apply for unconditional permanent residency, you may be required to cooperate with another background check. If you qualify for both conditional and unconditional permanent residency status at the same time, however, you can skip over the conditional permanent residence and apply directly for unconditional permanent residence.

Effect on Ongoing Deportation Proceedings

What would happen under the Act if you were already in deportation proceedings at the time it was passed? Well, as long as you turned out to be eligible for at least conditional permanent residence status, your deportation proceedings would be canceled. They would also be canceled even if you did not graduate from or even enroll in high school, as long as the reason for this omission is that you are too young to attend high school.

Protection for TPS and DED Recipients

The United States hosts over 300,000 people from designated countries such as Honduras, Nepal, and Somalia in Temporary Protected Status. It also hosts about 3,600 Liberian nationals with Deferred Enforced Departure (DED). These statuses provide relief from deportation due to harsh conditions within the beneficiaries’ home countries.

Under the Act, under either status you will be able to obtain permanent residence under the following conditions:

• Prove three years of continuous residency in the US immediately prior to the passage of the Act;
• Prove that you were eligible for your status by the cutoff dates specified in the Act (initially September 25, 2016, for TPS or September 28, 2016, for DED, but likely to be changed before the Act is actually passed);
• Meet certain other requirements that are standard for permanent residence applicants (lack of a serious criminal record, for example); and
• Pay the appropriate application fee.

The Act would not only offer you permanent residence, it would also cancel any deportation proceedings you might be undergoing. The Act also opens the door for other ways that future TPS beneficiaries might qualify for permanent residences, such as marrying a US citizen. It would even allow certain former DED beneficiaries who had been deported or left the US under voluntary departure to seek permanent residence.

The Trump government has come to an end but the decisions taken by it in the name of immigration reform are still being discussed in courts around the country. One such decision was a review of the Deferred Action for Childhood Arrivals (DACA) program that concerns almost 650,000 recipients known as ‘dreamers.’

Last week brought some good news for DACA dreamers because a federal judge in New York ruled that the rules put forward by Acting Secretary of the U.S. Department of Homeland Security (DHS) Chad Wolf are invalid because he was not serving his term legally.

According to Judge Nicholas Garaufis of the U.S. District Court of the Eastern District of New York, “DHS failed to follow the order of succession as it was lawfully designated. Therefore, the actions taken by purported Acting Secretaries, who were not properly in their roles according to the lawful order of succession, were taken without legal authority.”(VOA)

Earlier in June, we saw a decision of the Supreme Court on DACA in which it blocked Trump’s attempt to dismantle the DACA act in a 5-to-4 decision. However, this did not stop Wolf. In July, he issued a memo containing new USCIS DACA steps. These steps include: shortening the renewal period from 2 years to 1 year, rejecting all initial applications, and rejecting all Advance Parole applications from recipients barring exceptional circumstances. (ILRC)

The memorandum was challenged in two cases: Batalla v. Wolf,16-cv-4756, and State of New York v. Trump, 17,-cv-5528. In both cases, the Plaintiffs argued that the Acting Secretary of DHS was not serving lawfully and that the memo violated the Administrative Procedure Act (APA).

The secretary of Homeland Security has been a frequently-changed position in the Trump administration, with Wolf being the 5th person appointed to do the job. In August, upon a reconsideration request from the DHS, the U.S. Government Accountability Office concluded that the appointments of Chad Wolf, acting DHS Secretary, and Ken Cuccinelli, senior official acting as deputy secretary, “were issued under an invalid order of succession. GAO will modify or reverse a prior decision only if it contains a material error of fact or law.”

The DHS is supposed to be and a political entity. The incorrect appointment of officials then the subsequent actions taken by those appointed further damages The office is credibility.

The DACA act was introduced in 2012 by the Obama administration. As the name suggests, the program has certain age-related conditions applicants need to fulfill. These conditions include, among others, the individual entered the U.S. before the age of 16, has a continuous residence in the U.S. since mid-2007, has a clean record in terms of felonies and significant misdemeanors, was under 31 in the mid-2012.

The program was meant to protect illegal immigrants who did not have any say in their legal status in the country.

DACA recipients are present in more than 1.5 million homes, and over a quarter-million U.S.-born children are born to DACA recipients.

Moreover, these recipients pay $5.7 billion in federal taxes and $3.1 billion in state and local taxes. (AmericanProgress) The idea with DACA was two have something in place for the immigrants until Congress came up with a permanent solution. The Trump administration seems to have taken the view that since nothing permanent has come about, the program should be discontinued.

Thankfully for the DACA dreamers, the newly-elected president Joe Biden has taken a different view and is expected to continue the program. “Biden plans to send an immigration bill to Congress on his first day in office in January that includes a pathway to citizenship for the estimated 11 million immigrants living in the country illegally.” (Reuters)

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration.

He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

The government can continue applying the new public charge rule as before

Similar to what the election results have been for both the candidates and their voters, the last few days have also been a rollercoaster ride for foreign nationals and their employers. It all started with a federal District Court vacating the DHS’s public charge rule and ended in an appeals court staying the lower court’s decision of vacation.

The Decision and The Stay

On November 2, hearing the Case: 1:19-cv-06334 in the District Court, Cook County, Chicago, Illinois, the federal judge, Judge Gary Feinermanin, said that the new public charge rules must be vacated because they go against the Administrative Procedure Act (APA).

The Plaintiffs, the Cook County and the Illinois Coalition for Immigration and Refugee Rights (ICIRR), wanted the vacation of the Final Rule. The defendants, Chad Wolf, the DHS, Kenneth Cuccinelli, and the USCIS, wanted the vacation to be limited to Illinois.

In October last year, the court stopped DHS from enforcing the public charge law in the State because the rule likely violated the APA. After DHS appealed the decision, the 7th Circuit Appeals Court denied the appeal to stay the injunction.

Besides the public charge rule charge, the Court also granted the Plaintiff’s claim that “the Rule violates the equal protection component of the Fifth Amendment’s Due Process Clause.” The equal protection part relates to the notion that “the Rule is motivated by the impermissible discriminatory purpose of favoring white immigrants over nonwhite immigrants.”

ICIRR CEO lauded the ruling, stating: “This is a major victory for immigrants across Illinois and throughout the nation and underscores the importance of protections for all.” The ICIRR was also grateful that they can continue litigating “the Equal Protection Clause claim against the federal government, and root out the discriminatory animus towards non-white immigrants inherent in this rule.”

In response to the decision, the DHS quickly launched an appeal to halt the decision pending appeal. On November 3, the U.S. Seventh Circuit Court of Appeals gave an administrative stay. The legality of the public charge rule is being challenged in various jurisdictions.

Previous Challenges to The Legality of The Public Charge Law

The Cook County and the ICIRR initially challenged the legality of the public charge rule in September last year. The challenge was upheld in court with blocking of the rule in the State. The Supreme Court granted the public charge rule on a 5-4 vote in January after it was denied in several rulings.

Public charge lawsuit filings have continued in the second half of the year as well. In July, a New York federal court stopped DHS from enforcing the rule during the COVID-19 emergency. This ruling was shortly followed by a Second Circuit ruling limiting the injunction to the States of Vermont, New York, and Connecticut.

The DHS sought a stay on the limited injunction as well. In September 2020, a Second Circuit court ruled In favor of the DHS, stating that the federal court did not have the authority to prohibit the department from requiring applicants to comply with the public charge rule.

“We will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020” (USCIS)

Implications for The Affected Parties

Of course, the most affected party in this legal back and forth are the applicants looking for an extension or adjustment of their status. What the November 2 decision meant for employers and foreign nationals is that they don’t have to worry about the new green card rules standing in their way.

The expectation after the ruling was that the USCIS will acknowledge the decision and act accordingly. The 7th Circuit court decision of course changes all that: It means a return of the same procedure for the applicants. The public charge forms and documents required before the ruling are required again.

Perhaps the most notable side effect of this legal battle has been on the health of the immigrants. According to the Commonwealth Fund, before the final rule, Medicaid was considered as evidence of public charge status when it was used for long-term care. Unfortunately, after the final rule, any type of nonemergency Medicaid use by most public charge-restricted immigrants can affect their ability to become a citizen.

The public charge rule seems to be part of the regulatory wall the Trump administration has constructed against immigrants. The constant rejection and reinstatement of the final rule have created a culture of uncertainty for immigrants and their employers. Unfortunately, with more appeals against the rule, this environment of constant confusion and hardship for immigrants is likely to continue.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”

He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

Contact your immigration lawyer in Chicago, Illinois should you have any questions and read more information about immigration in Chicago now.

USCIS Rejects Initial DACA Applications; Reduces Extensions to 1 year

It is no secret that the Trump administration has been particularly ruthless towards migrant children. The latest example of this behavior is its move to end deferred action.

The Deferred Action for Migrant Children Program (DACA) was introduced in 2012 by the Obama administration. The purpose of this program was to facilitate migrant children, because they did not have a say in their parent’s/ guardian’s decision to migrate and because they have grown up in the country, not in the country of their parents.

Requirements for Deferred Action under DACA

Deferred action under DACA has specific requirements. Those applicants that meet all the requirements receive differed action and employment authorization for a certain time. These requirements include:

• Graduation from high school, enrollment in school, a general education development (GED) certificate, or honorable discharge from the Armed forces or Coast Guard
• No criminal record – felony, significant misdemeanor, or three other misdemeanors – and not a safety or security threat
• Continuous residence in the US since June 15, 2007, to present
• Physical presence in the US on June 15, 2012, and when applying for deferred action with USCIS
• Arrival in the US before the age of 16

Besides the conditions for education, behavior, and childhood arrivals mentioned above, there are also other age and status-related requirements that an applicant needs to meet for DACA renewal or approval.

s that an applicant needs to meet for DACA renewal or approval.

The Court Ruling and Reaction to The Ruling

Despite clear criteria for deferred action, the Trump administration continues to want to eliminate the program altogether. In 2017, it rescinded DACA, but in June 2020, the Supreme Court blocked the move.

The reasoning provided to the Supreme Court for rescinding DACA comes from a federal court decision in Texas Vs. the United States. The ruling, in that case, is that DACA recipients can be denied benefits they are entitled to under the law.

According to The Department of Homeland Security (DHS), since DACA recipients can be denied work authorization, Medicare, and other legal benefits, they have no right to reside in the country and can be deported.

The Supreme Court stopped the recension of DACA in a 5-4 decision. Writing in the majority opinion, Chief Justice John Roberts said that the wisdom of whether DACA is a good policy or not is not their concern. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” he added. The decision, while narrow in the margin, indicates that the DHS’s attempt to end DACA lacks merit.

As expected, the Supreme Court’s decision was not well received by the president, who took to Twitter to show his anger, calling the decision “horrible & politically charged.” He also announced his intentions of retrying, stating: “We will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling & request of yesterday.”

In a memo released in July, Homeland Security’s acting secretary Chad F. Wolf said that “the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission.” He also writes that careful consideration will be needed to fully rescind DACA.

While Wolf stopped short of supporting the elimination of the program, the policies given in the memo indicate what immigration applicants can expect in the coming days and weeks.

According to the memo, the Department of Homeland Security, USCIS, will:

• Reduce deferred action for childhood renewals from two years to just one year.
• Reject all initial DACA applications
• Terminate or deny deferred action at any time if immigration determines it to be appropriate

The Effects of the New DACA Policy

This memorandum and the overall policy of the administration has made things more uncertain for DACA dreamers. According to the Migration Policy Institute, 66,000 children became ineligible for DACA after the Trump administration terminated the program.

The Supreme Court’s decision was a beacon of hope for these children; however, the new DHS terms have locked them out of contention again. Besides the eligibility of new applicants, the policies will likely give rise to a host of other issues for the already-challenged migrants.

One of these issues is the health of individuals. Research suggests that DACA eligible individuals are more likely to seek health care and less likely to delay care because of financial issues. With the very real possibility of deportation, eligible applicants will, naturally, be less likely to seek health care even if they are suffering from a serious health condition.

An equally important issue is education. Without DACA, higher education will likely not be available at all to the children. At present, children with an approved DACA request can receive higher education at in-State rates in multiple States.

Perhaps the most unfortunate thing about this discriminatory DACA policy is that the presence of migrants is not only beneficial but also necessary for economic growth. The United States has an aging population: research suggests that people over the age of 65 will make up almost 25% of the population by 2025.

However, in comparison to other countries with an aging population, such as China, Japan, and Germany, the United States’ economy has not been affected to the same extent by the aging population because of steady immigration.

Trump’s policies are leading to a drop in legal immigration, and a continuation of the current policies will only make the situation worse. If you are a DACA-eligible person – in the absence of deferred action – you can look to support immigration advocacy groups that are officially challenging the DACA-related actions of the USCIS.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”

He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

According to the Department of Homeland Security (DHS), DHS delegated the school certification process to U.S. Immigration and Customs Enforcement (ICE). ICE, in turn, delegated the responsibility to its Student and Exchange Visitor Program (SEVP).

The SEVP certification program is used by foreign students who wish to enter America to start a course in the study program at the institution. The students need to use Form I-20, which is issued by a certified SEVP institution. Institutions, with SEVP certification, generally allow foreign students to enroll through an F or M student visa.

Institutions need to be certified to admit:

• Only F students (i.e., academic students)
• Only M students (i.e., vocational students)
• Both F and M students if the school has both academic and vocational courses of study

The governing regulations for school certification are found in 8 CFR 214.3(a)(2).

The types of institutions that are eligible to petition for SEVP certification include:

• “Colleges or universities (i.e., institutions of higher learning that award recognized bachelor’s, master’s, doctorate or professional degrees)
• Community colleges or junior colleges (i.e., institutions providing instruction in liberal arts or in the professions and awards recognized associate degrees)
• Seminaries
• Conservatories
• Academic high schools (grades nine–12)
• Private elementary schools (grades kindergarten–eight)
• Institutions providing:
  • Language training, if accredited by a nationally recognized accrediting body
  • Instruction in liberal arts or fine arts
  • Instruction in the professions
  • Instruction or training in more than one of these disciplines”

Other schools, in the governing regulations. are eligible for M student admission.

Which Schools are not Eligible for SEVP Certification:

The governing regulations provide that the following programs/schools cannot obtain SEVP certification:

• “Home school
• Preschool or daycare
• Public elementary or middle school (grades kindergarten–eight)
• School whose programs are primarily distanced or online and do not require the student’s physical attendance for classes, examination or other purposes integral to the completion of the class (per 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v))
• Adult education programs funded in whole or in part by a grant under the Adult Education and Family Literacy Act, or by any other federal, state, county or municipal funding
• Flight schools that are not Part 141 or Part 142 certified by the Federal Aviation Administration”

What Certification Responsibilities Must Schools Meet to Obtain SEVP Certification?

Schools are required to make” a legally binding commitment to comply with applicable federal laws, regulations, and DHS requirements.” The choice to apply for SEVP certification requires:

• A financial commitment
• A strong personal commitment
• The duty to comply with strict record and reporting keeping requirements

Some of the reporting obligations include:

• Updating the Form I-17 when material changes occur (e.g., a change of mailing address, change of leadership, etc.).
• “Regular registration of student records in SEVIS and report changes in student information (e.g., student address and employment information, etc.).”

Schools with SEVP certification may be subject to a random on-site review. They must also apply for recertification every two years. Schools seeking SEVP must complete Form I-17 and “upload the required evidence for filing online using the Student and Exchange Visitor Information System (SEVIS), as well as pay all required fees at pay.gov. There are many other Form I-17 requirements that must be met.

Currently approved SEVP institutions can be viewed here – Download Certified School List

Call Herman Legal Group at +1-216-696-6170 or fill out our contact form to talk with us about seeking admission to a SEVP approved school and changing your B-1 or B-2 status to F-1 or M-1 status.

Once an employer received a Notice of Intent to Fine from ICE, the employer has the option to either pay the fine or contest the fine. The Notice of Intent to Fine is the charging document. A charging document lists all the violations allegedly committed by the employer and the corresponding penalties recommended by ICE.

Request for Hearing

Contesting the fine means that the employer must file a request for a hearing with the Office of the Chief Administrative Hearing Officer (OCAHO). Once a request for a hearing is filed, the OCAHO will assign the request to an administrative law judge.

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Complaint

The Department of Homeland Security and the Immigration and Customs Enforcement will file a complaint before the OCAHO which will incorporate the contents of the Notice of Intent to Fine. The DHS and ICE will be the complainants on behalf of the people of the United States.

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Motion for Summary Decision

DHS and ICE will also file a Motion for Summary Decision, asking the administrative law judge to rule on the motion and order the employer to pay the fine they recommended. They will try to show that they followed the procedure. They will attempt to prove that they followed the schedules in arriving at the recommended fines.

If there are factors that can serve to increase or decrease the penalty sought to be imposed, then DHS and ICE will discuss which factors they found and how these factors served to increase or reduce the amount of fine they recommended. In short, they will try to prove that there is no genuine issue of material fact that still needs to be heard by the administrative law judge.

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Response

The Administrative Law Judge will require the employer to respond to the complaint and the Motion for Summary Decision. Note that while the judge will require the DHS and ICE to demonstrate that there are no material facts in issue and that they are entitled to a judgment as a matter of law, the employer must produce evidence that contravenes the claims of the DHS and ICE.

The employer must prove specific facts showing that there is still a genuine issue of fact that needs to be heard.

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