Deferred Executive Actions (DACA and DAPA)
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Deferred Executive Actions (DACA and DAPA)
Procedural Matters

On November 20, 2014, President Obama announced a series of Executive Actions to be effected in early 2015, absent meaningful Congressional action for comprehensive immigration reform in the interim. Because the actions were phrased in terms of a challenge to Congress, it could be called ObamaDare.

On February 16, 2015, federal Judge Hanen in Texas issued a preliminary injunction against two portions of the executive actions affecting students and families, as described below. An appeal was taken and argued in the Fifth Circuit Court of appeals and as of 7/17/2015, no result has been obtained except that a request to dissolve the preliminary injunction was denied by the appeals court. The district court opinion was so large that originally it had to be divided into three digital files. See generally

Previously, a similar lawsuit was dismissed as legally defective by a federal judge sitting in Washington, D.C.

It is likely there will be eventual U.S. Supreme Court review. However, it is problematic whether such review can be achieved before the end of the Obama administration. The injunction of the Texas judge stops the Obama administration's efforts in its tracks unless and until a higher court reverses the order, stalling the executive actions and halting their momentum.

For families

What the program would do if allowed to go forward:

It will include:

  1. Pursuant to an immigration appellate court decision Matter of Arrabally and Yerrabelly, allowing undocumented persons who entered illegally in the past to leave the country and make a new authorized re-entry using advanced parole, regardless of the length of time of any prior unlawful presence.
  2. Authorizing a period of legal stay including work authorization for parents of U.S. citizen or U.S. permanent resident children, for an initial period of three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
  3. Expanding Deferred Action for Childhood Arrivals (DACA) will be expanded to include anyone who entered the United States before the age of 16, regardless of current age, so long as they have lived in the United States continuously since January 1, 2010, are not disqualified because of criminal or immigration problems in the past, and are in school or are a graduate of high school or possess a GED. DACA authorization, including work authorization, will be extended from two years to three years.
  4. Expanding waivers of unlawful presence provisional to the spouses and sons and daughters of lawful permanent residents as well as the sons and daughters of U.S. citizens, and more clearly defining the prerequisites for claims of extreme hardship.

Aspects of the program still unclear as of 2/20/2015:

  • The degree to which DAPA will require payment of taxes.
  • What the forms and instructions will require.

What has been left unsaid:

Combining categories 1-4 above, if freed from the constraints of Judge Hanen's order, ObamaDare would create new opportunities for undocumented persons to achieve permanent residency and ultimately citizenship. A fairly direct, if complicated, path may soon exist for millions of undocumented persons to seek permanent residency on the basis of family relations with U.S. citizens, which rivals the reforms implemented for immigration under the Reagan and Clinton administrations in scope and import.

The original DACA program remains unaffected by the judicial actions, and the same new opportunities exist for qualified beneficiaries potentially to become permanent residents and ultimately citizens that are referenced in the previous paragraph.

The details of the programs have not yet been fully announced, and in immigration, the devil is often in the details. The general takeway is that while specifics are uncertain, the general outlines and direction are clear. If the programs are allowed to go forward, undocumented young persons with specified education or the equivalent and those having U.S. citizen or permanent resident children should have a chance to become legal in the U.S., ultimately including citizenship, depending on U.S. citizen family members.

What to do now:

  • Understand that while the programs are stalled, the original DACA is not, and the ultimate fate of DAPA and expanded DACA is unclear. For those potentially affected, do not despair.
  • Stay informed and prepare. Make an initial consultation appointment with Messing Law Offices today.
  • Get a taxpayer identification number (ITIN) if you cannot get a social security number.
  • Prepare and get ready to file taxes.
  • Collect birth certificates, and marriage certificates to establish familial relations with U.S. citizen spouses, and U.S. citizen or permanent resident children.
  • Collect medical, school, governmental, work documents, etc. showing evidence of physical presence in the US since 2010.
  • If possible from within the U.S., obtain a current, valid passport from your country of citizenship.
  • Do not pay money for benefits under these programs to anyone, including lawyers, until it is clear that the program will go forward.

Click here to review the original DACA 1.0 requirements which remain in effect notwithstanding the Texas federal court injunction against executive actions.

If you have a concern about deferred executive actions, call Messing Law Offices (520) 512-5432 for a free brief telephonic evaluation or to schedule an initial consultation.