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Fight for DAPA/DACA To Continue Despite SC Ruling

Immigration was at the forefront of very significant events last week. On June 23, the United Kingdom voted to leave the European Union and immigration concern was a major factor. Meanwhile on the same day, here in the United States, the Supreme Court deadlocked on Pres. Barack Obama’s immigration initiatives.

The Supreme Court’s evenly-divided decision in the case of United States v. Texas means that the lower court decision against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action on Child Arrivals (DACA) stays.

Pres. Obama introduced DAPA and DACA expansion in November 2014 following the failure of Congress to pass a comprehensive immigration reform bill. DAPA and DACA were meant to ease the threat of deportation of more than 4 million undocumented immigrants.

After Obama announced these immigration initiatives, Texas and 25 other states filed a lawsuit in the district court claiming that the expanded DACA and DAPA violated the “take care clause” of the Constitution. They also argued that the initiatives were not in accordance with immigration laws and violated the Administrative Procedure Act (APA). The district court judge issued a preliminary injunction blocking the implementation of these policies.

On appeal by the government, the Fifth Circuit upheld the injunction. Thus, the case found its way to the Supreme Court.

DAPA would temporarily defer deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA, on the other hand, was first introduced by the Department of Homeland Security (DHS) back in 2012. Those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony can benefit from DACA. The expanded DACA eliminated the age requirement and pushed the arrival date to January 1, 2010.

Since its implementation in 2012, DACA has resulted in the improvement of the lives and economic conditions of over 700,000 young people who were granted work permits, obtained access to public universities and scholarships, and opened a bank account, among others.

The ruling of the Supreme Court is a setback for immigrants and their families but immigrant rights advocates are vowing to continue the fight. They are urging the Department of Justice to seek a rehearing. If this is not granted, then the case will go back to the district court for a decision on the merits. If the district court decides to strike down the initiatives, the government could appeal the case all the way to the Supreme Court again.

Immigrant advocates are also continuing to lobby the US Congress to pass immigration laws that would keep families united and benefit the economy.

Driver’s License for the Undocumented

A bill allowing undocumented immigrants to receive a driver’s license will soon become a law in California. Both houses of the California legislature recently passed the bill, AB 60, and it is now on its way to Governor Jerry Brown’s desk for his signature. The Governor indicated that he will sign the bill because it will “enable millions of people to get to work safely and legally.”

The Governor wanted to make sure that the bill complied with federal law and have the license clearly indicate that it is only for driving and not for work or for obtaining public benefits. The author of the bill, Assemblyman Luis Alejo, almost withdrew the bill because he preferred the words to be discreet and written on the back of the license. He later on accepted the amendments to make the distinction clear.

Once signed into law, California will be the eleventh state to provide driver’s license to the undocumented. For a number of years, Washington state, New Mexico and Utah have allowed undocumented immigrants to obtain driver’s license. Illinois passed a similar law January of this year. It was followed by Nevada, Maryland, Oregon, Vermont, Connecticut and Colorado.

Meanwhile, the debate as to whether the undocumented should be issued driver’s license continues. Some people look at this measure as a form of “quasi amnesty”. According to Mark Krikorian of the Center of Immigration Studies, “What it means is the government formally incorporating illegal aliens into the institutions of our society.”

Another concern is whether the bill undermines federal immigration laws. Under the bill, the Department of Motor Vehicles (DMV) will issue driver’s license to people who satisfy the requirements for a license but whose presence in the country is not authorized by federal law. Judicial Watch President Tom Fitton predicts that the U.S. Department of Justice will review it once it is signed into law.

Public safety, on the other hand, remains to be the principal argument why more states are enacting similar laws. The Economist reports that unlicensed drivers are almost five times more likely to be in a fatal crash and they are also less likely to stay in accident scenes. If the undocumented immigrant is granted driver’s license, he would not run from accidents for fear of deportation and will be more willing to cooperate with law enforcement.

Los Angeles Police Chief Charlie Beck said that the law would make the roads safer. Allowing the undocumented to apply for driver’s license would require him to undergo various tests which will determine if he is fit and capable of driving. Also, this would allow them to carry insurance and avoid hit-and-run accidents.

The law will also address the problem of undocumented immigrants who are stopped at routine checkpoints and whose cars are impounded because they don’t have valid licenses. Also, it will help decriminalize the daily activities of the undocumented such as driving his kids to school or driving to work to earn a living.

To ensure that the driver’s license issued is not used to avail of federal benefits, the license issued is distinct from that of U.S. citizens or residents. The license cannot be used for identification when boarding airplanes. It is merely issued for the privilege of driving. The license, however, cannot be used as a basis to discriminate against the holder.

It is hoped that with the passing of this bill in California, Congress will finally see the urgent need to address the problems of the undocumented in the country and pass the immigration reform bill.

Bill to Grant Legal Status to Undocumented Immigrants

The immigration reform bill which a bipartisan group of senators has been working on for months was finally introduced on April 17. The proposed legislation which revamps the whole legal immigration system gives preference to job skills rather than family ties. Hearings have been scheduled in the Judiciary Committee and the Senate is expected to vote on it by early June.

The bill, entitled Border Security, Economic Opportunity, and Immigration Modernization Act, provides for a pathway to citizenship to the 11 million undocumented immigrants in the country after a ten-year wait. Although the pathway to citizenship is not tied to border security, the bill sets “triggers” whereby the undocumented can adjust status only when border security measures are fully operational.

The bill creates a merit-based program which will allow individuals, both in the U.S. and abroad, to earn points based on education, employment, length of stay in the U.S., among others, and the person with most points are granted their visas. Around 120,000 up to 250,000 visas would be issued each year using the point system. Benefiting from the program will be talented individuals, individuals in the worker programs and those with family in the U.S. The proposed legislation will eliminate the backlog for family and employment-based immigrants.

Also, the bill addresses the need for farm workers and low-wage laborers with the new nonimmigrant visa called the W-Visa. This will allow foreign workers to perform labor or services in the U.S. for a period of three years. The spouse and minor children may accompany the principal and are authorized to work. The annual cap will depend on the unemployment rate.

The annual number of H-1B visas will be increased from 65,000 to 110,000. The cap may even go up to 180,000 in the future depending on the demand and unemployment rate. Spouses of H-1B workers will be allowed to work if the sending country provides reciprocal treatment.

The bill eliminates a number of visa categories. For one, it eliminates the diversity visa or visa lottery. There will only be two family-based categories and they will include only unmarried adult children, married adult children under 31 and unmarried adult children of lawful permanent residents. Visas will no longer be available to siblings of U.S. citizens. But the child or spouse of a lawful permanent resident will be considered “immediate relative” and thus exempted from numerical limit.

Also exempted from the annual limits are the derivative beneficiaries of employment-based immigrants, aliens of extraordinary ability, outstanding professors and researchers, multinational executives and managers, doctoral degree holders and certain physicians.

The pathway to citizenship laid out in the bill starts with an application for “Registered Provisional Immigrant Status” or RPI status. To be eligible, the undocumented must have been living in the United State prior to December 31, 2011 and must have been physically present in the U.S. since then. Application requirements include the payment of a $500 penalty fee, back taxes and processing fees.

Once granted the RPI status, noncitizens are considered lawfully present in the U.S. and can work and travel outside the country. They are however not qualified to receive Federal means-tested public benefits. The RPI status is valid for up to six years which is renewable upon proper application and payment of $500 penalty fee. To renew RPI status, the noncitizen must not have committed any act which would render him deportable.

The noncitizen under provisional immigrant status may adjust to lawful permanent resident status after ten years through the merit-based system. The young immigrants or the so-called Dreamers who were brought into this country illegally when they were still children and agricultural workers will be able to apply for their green cards after five years.

The noncitizen under provisional immigrant status must also demonstrate continuous physical presence in the U.S., payment of taxes, regular employment and knowledge of Civics and English to adjust status.

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