WHAT CAN YOUNG PEOPLE WITH DACA DO IF THE SUPREME COURT ALLOWS DACA TO END?
This
month, the Supreme Court will release its decision on whether the Trump
Administration’s rescission of the DACA program was valid. Hopefully the
Court will do the right thing and DACA will survive.
But
what to do if DACA is struck down? The
following article contains some advice for current DACA holders.
Likely
immediate impact for your DACA status:
If
DACA ends, here’s how that would likely affect those who have DACA now:
·
Current persons with DACA: Previously
issued work permits and DACA approvals would likely remain valid for their full
validity period but then not be eligible for renewal.
· Pending DACA renewal applications: Hopefully
pending requests for renewal of DACA will be processed.
· No
new DACA renewal applications would be accepted.
Other Options for DACA holders.
There
are not a lot of paths to permanent residence in our current broken immigration
system, but here’s a few limited possibilities:
1. Permanent Residence for DACA holders
married to a US Citizen.
A 2013 Court decision opened a door for
persons with DACA who marry a US citizen to adjust their status in the US. This is limited to certain DACA holders
without prior orders of deportation or other grounds for inadmissibility, and
only after obtaining with permission to travel under DACA.
Unfortunately, the Trump Administration stopped issuing the permits to
travel in 2017. But nonetheless, a lot
of persons with DACA did get the travel permit (known as “advance parole”)
during in the 5 years between 2012-2017.
If they are married to a US citizen, they can still get a green card
through a process lasting only about six months, without a pardon, and without
leaving the country.
2. Permanent Residence through the Pardon
Process.
Even those persons with DACA who did not obtain a travel permit previously
can still a green card if they marry a US citizen by applying for waiver known
as an I601 pardon. In March, 2013, the Obama
Administration implemented a rule that
has benefitted many thousands of immigrants across the country. The new
regulation allowed spouses of US citizens to apply for their waivers of the
10-year penalty for unlawful presence inside
the US. In November of 2015, President Obama expanded it to spouses
and children of permanent residents.
Before, undocumented spouses who came here without a visa risked being
barred for 10 years from the US if their waiver was denied.
Anyone
eligible for an I601A waiver should apply now as this process may soon get more
difficult or even be eliminated altogether by Trump. If you have DACA and you
are otherwise eligible, consult a lawyer first to make sure there is no problem
returning.
3. Other applications through
family or work.
It
is not common, but if there are existing petitions previously filed by close
family members (e.g. U.S. citizen parents or siblings), there may be
circumstances where these petitions can still be used to obtain permanent
residence for the DACA holder, especially if DACA was obtained before the age
of 18. But check with a lawyer before
you pursue this.Likewise, in limited circumstances, an employer may be able to sponsor a DACA-holder for a green card through work, a process known as PERM. But this would usually require that the DACA-recipient have no unlawful presence after age 18. And the PERM process is not an easy one; it involves an established employer offering a market wage job requiring a college education and/or exceptional skills and then a recruitment process proving that no Americans want that job. Especially difficult during a recession.
4. The U visa for crime victims
The U visa can be used by
any victim of a crime to apply for status with the Immigration Service if they
can show they were harmed by a crime occurring in the United States and
cooperate with the U.S. authorities in trying to apprehend or prosecute the
perpetrator.
To qualify for a U visa, a
person must show that:
·
the
person has suffered substantial physical or mental abuse as a result of having
been a victim of criminal activity in the United States;
·
the
person … possesses information concerning criminal activity;
· the person has been
helpful to a Federal, State, or local law enforcement official, including
police and/or a prosecutor investigating
the crime.
The applicant must have
suffered “substantial” harm as a result of the crime, although the crime can be
emotional or physical.
A solution for all DACA
holders.
We
should all support action in Congress to provide a legislative solution for
those with DACA. In June, 2019, the
House of Representatives passed the American Dream and Promise Act of 2019. This bill cancels and prohibits removal proceedings against certain aliens
and provides a path to permanent residence for DACA-eligible young
immigrants. For more information or to sign a petition in support of a
DREAM Act law, go to: https://action.unitedwedream.org/petitions/keep-the-deferred-action-for-childhood-arrivals-daca-program
************************************************************************
CHRISTOPHER
A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for
over 25 years and has been recognized as one of the top immigration lawyers in
Northern California for 10 years by “Super Lawyers”. https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html. He graduated from University of California,
Berkeley Law School and was a former counsel for the U.S. Department of Justice
in Washington D.C.
WARNING: The foregoing is an article
discussing legal issues. It is not intended to be a substitute for legal
advice. We recommend that you get competent legal advice specific to your case.
