Court Loss on Obama Deportation Rules May be a Good Thing

A decision by the 5th Circuit Court of Appeals on November 9^th means more delays in implementing rules to protect millions of nonimmigrants from deportation. Although the ruling is disappointing and frustrating, there is hope. The argument will now move to the US Supreme Court, where we expect the decision to be reversed. As we’ve discussed previously, in 2014, President Obama signed an executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. A lawsuit by 25 states has kept the executive order from going into effect. The lower court in Texas held that the states could proceed with their lawsuit and the 5^th Circuit has upheld that ruling. Despite this decision and the understandable fear among nonimmigrants, there are positives to this situation:

1. The Administration is appealing the case to the Supreme Court and will take aggressive steps to get oral arguments in for this spring session and hopefully get a decision by June 2016. That would mean the rules could be implemented while Obama is still in office.
2. There is wide support for the executive order. Although opponents focus on the fact that 25 states are opposed to the rules, there are 15 states, Washington, DC, and 73 Mayors and County Officials actively supporting DAPA/DACA and urging the Court to side with the Obama administration. The populations of the cities backing these initiatives have a larger population of undocumented immigrants than the states that are suing the federal government, which means those most likely to be impacted by DAPA/DACA are in favor of it. The support of these states and cities undercuts opponents’ arguments that the rules are harmful.
3. The lower court in Texas and 5^th Circuit Court panel was populated by Reagan and Bush appointed judges that were likely to rule against the Administration. Other judges have not agreed with this decision and ruled in favor of the executive order.
4. Past rulings by the Supreme Court have supported the power of the President to provide temporary immigration relief and there is no reason for the Court to suddenly break from prior decisions.
5. Despite the argument that Obama’s order was unprecedented; the reality is that every president since Eisenhower has used his executive power to provide relief to immigrants. See reports of the Congressional Research Service and the White House Office of General Counsel
Presidential Protection of Immigrants Although the decision wasn’t good news, it also clears the way for the Supreme Court to end this dispute and protect immigrants from deportation. We will keep you up-to-date on the latest developments. In the meantime, if you are interested in learning more about obtained deferred action status under DAPA or DACA for you or a family member, please contact us.
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By Ruthie Sanchez | Published November 12, 2015 | Posted in Deportation, Green Card, Immigration Reform, Visas | Tagged avoid deportation, DACA, DAPA, Deferred Action for Childhood Arrivals, Deferred Action for Parental Accountability, US citizenship

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FAQs

Q: My employer wants to sponsor me to get a green card – can they?
If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.
Q: How can I get a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.
Q: Can I apply for deferred action now?
As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.
Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?
The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.
Q: Who can I contact for more help or information?
It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status. Do not take advice about your immigration case from a notary public or an immigration consultant. The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice. Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.
Q; What should I do now?
You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.
Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?
If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.
Q: My grandma is sick back home – can I go visit her?
Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.
Q: Can our company sponsor an employee to get a green card?
If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.
Q: What is a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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