Seguritan US Immigration Articles

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

3 Visa Authorizations Extended Through Dec. 9

Three visa programs that expired last September 30 were recently extended through Dec. 9, 2016. The visa programs are the Conrad State 30 Program, the non-minister special immigrant religious worker program (SR visa), and the EB-5 Regional Center Immigrant Investor program.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates upon completion of their J-1 exchange visitor program. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in medically underserved areas where doctors are in short supply.

An extension was also granted to the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to professionals and non-professionals working within a certain religious vocation other than being ministers. The extension also includes their accompanying spouses and children. To be eligible, an applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the US and he must have also have been working in a religious vocation or occupation aside from those that are purely administrative in nature.

Lastly, extension was granted to the EB-5 Regional Center Immigrant Investor Program (R51 and I51 visa categories). This comes as a welcome development since organizations of business leaders, trade associations and government officials had recently urged Congress and members of the Judiciary Committee to take a second-look at the program.

The EB-5 regional center program grants a green card to foreign nationals who invest in any of the regional centers all over the country. As of October 3, 2016, the USCIS has approved 863 regional centers across the country.

In its letter to the members of Congress, the EB-5 Investment Coalition highlighted the contribution that the program has done especially in turning the wheels of the American economy. According to the group, the program has created jobs, facilitated growth of vital industries in different parts of the country and essentially, has revitalized communities.

“The program, has facilitated billions of dollars in direct foreign investment into a diverse range of projects throughout the United States and has thereby generated over $15 billion from 2005-2015, creating well over 100,000 new US jobs in that time,” stressed the coalition.

Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation. Furthermore, for regional centers $500,000 is usually sufficient for investment as opposed to the $1,000,000 required under the regular EB-5 program making it a more welcoming program to anyone who wishes to invest in a targeted employment area.

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