All posts by Cheng, Cho, & Yee, Immigration Lawyers

Rescuing DACA

A recent federal court ruling found that Trump’s attempt to end DACA violates federal law. The ruling was the latest one in the federal court system that was in favor of the program. Currently, several federal courts are handling cases in which people have sued the Trump administration over attempts to end the DACA program. The cases may ultimately be heard and decided by the U.S. Supreme Court in 2020.

What Is DACA?

The Deferred Action for Childhood Arrivals program was instituted by former President Barack Obama. DACA allows people who were brought to the U.S. as children to remain in the U.S. and work. It does not provide a pathway to citizenship, but it protects people who qualify from deportation and removal proceedings as long as they work or attend college and avoid committing criminal offenses. There are more than 800,000 DACA recipients and a total of 1.3 million people who are eligible for the program.

Trump’s Actions on DACA

After Trump took office, he began moving to end DACA. In Sept. 2017, the administration announced that DACA would end and gave Congress a six-month window to come up with a legislative fix. Members of Congress came up with a bipartisan immigration reform bill that would have saved DACA, but Trump rejected it after he initially said that he would sign it. This left hundreds of thousands of DACA recipients in fear of losing their status in March 2017. Multiple plaintiffs across the U.S. sued the administration in federal court, and the Ninth Circuit issued a nationwide injunction against ending DACA. Other courts are still contending with other lawsuits against the administration over the end of the program.

Recent Decision

The most recent decision came out of the Fourth Circuit. The court ruled that the Trump Administration’s moves to end DACA were arbitrary and capricious and in violation of federal law. They ruled that the Trump Administration did not adequately explain why it was ending the program and that hundreds of thousands of young people have structured their lives in reliance on the program.

The Supreme Court may take up the cases against Trump over DACA. The court may hear the cases in 2020 during the middle of the next election.

Here’s What New H-1B Regulations Are Doing to the US Economy

Changes made to the H-1B program are aimed at protecting jobs for American workers but may instead have a negative impact on the U.S. economy. The H-1B visa is a non-immigrant, employment-based visa for highly educated workers in specialty occupations. In response to the Trump administration’s “Buy American, Hire American” initiative, the U.S. Citizenship and Immigration Services modified the existing immigration regulations for these skilled workers, prioritizing petitioners with graduate degrees.

Changes to the H-1B Visa Program

Under the newly implemented modifications to the H-1B visa program, the order by which petitions are selected is reversed. Therefore, all petitions will initially count toward the projected number for reaching the H-1B cap. Once enough petitions are selected, USCIS will select petitions towards the advanced degree exemption. Previously, workers holding advanced degrees were selected before the cap was reached. The changes also establish an electronic registration requirement, which has been suspended for the 2020 cap season.

Changes Projected to Aid Employers and Workers

According to USCIS, these modifications are meant to benefit employers and skilled foreign workers seeking employment in the U.S., as well as American-born workers. Under the changes, American workers would not lose out on jobs to foreign workers who are willing to work for less and employers hiring workers with advanced degrees would be more likely to have their visa petitions granted. The changes will also help streamline the process and reduce the costs to employers.

Amendments Meant to Benefit U.S. Workers May Tear at the Economy

At present, the U.S. workforce does not have enough highly skilled workers to fill the need, particularly in science, technology, engineering, and math-related fields. By making it more difficult for qualified workers with experience training rather than education to obtain work visas, these workers may instead opt to find employment with companies outside of the U.S., potentially adding to the worker shortage and increasing the competition for American-held businesses.

Concerns that foreign-born workers who are willing to work for less are taking jobs from American-born workers are ill-founded. Having H1-B workers in the labor force adds jobs and, since on average they make more than their U.S.-born colleagues, it also increases wages across the board. A study conducted by New American Economy found that cities in which employers largely lost out on H-1B visa lotteries had significantly less wage growth and job creation for American-born workers in the years following.

Demand for Immigrant Workers Increases

Despite the Trump administration’s calls to halt immigration at the southern border, the government plans to issue 30,000 additional H-2B visas above the annual cap of 66,000. While this might seem incongruous with the administration’s claims that the country is too full, low rates of unemployment are leaving employers in Illinois and elsewhere without enough workers to fill their jobs. The H-2B visa program is a legal way for foreign workers to legally work in the U.S. in non-agricultural seasonal jobs such as construction, restaurants, and tourism. These industries heavily rely on the H-2B visa program to have the workers that they need during their busiest months.

Continue reading →

Is New Hope for Dreamers on the Horizon?

Dreamers and people with Temporary Protected Status in Illinois may have new hope in a proposed bill that is currently under debate in Congress. Under the bill, Dreamers and TPS recipients would be granted a path to citizenship. If passed, the legislation would allow up to 2 million people to become U.S. citizens. The pathways would be different for Dreamers and those who are TPS holders.

Dream and Promise Act of 2019

The Dream and Promise Act of 2019 is under debate in committee in the Democrat-controlled House of Representatives. It would protect an estimated two million people, including people who were brought to the U.S. as minors and those who are in danger of losing their temporary protected status.

The Path for Dreamers to Citizenship

Under the bill, Dreamers would be able to apply for 10-year conditional residence permits or green cards. Eligible Dreamers would include people who were 17 or younger when they arrived in the U.S. and who had lived in the country for four or more years. They could apply for full green cards after they worked for three years or served in the military for two years. Dreamers would not be eligible to apply if they had been convicted of criminal offenses with sentences of a year or longer in prison. Those who had three or more convictions for minor offenses with 90-day periods of incarceration would also be ineligible. Dreamers would also be eligible for federal financial aid to help them to pay for college.  Dreamers could apply for citizenship five years after receiving their full green cards.

The Path to Citizenship for People With TPS

People who have been in the U.S. under temporary protected status have been in the country for decades. Many have bought homes, started businesses, and put down roots. The Trump Administration has threatened to end TPS for immigrants from a number of different countries. The bill would protect these people as well. People with TPS would be allowed to apply for green cards immediately. To be eligible, they must have had TPS in Sept. 2016 and have lived in the U.S. for three or more years. They must also be able to pass criminal background checks. While the bill provides promise to immigrants, it is unclear if it can pass the Republican-controlled Senate.

Ruling: Immigrants Can Challenge Expedited Removal

Immigrants whose petitions for asylum have been denied after a finding of no credible fear may be able to challenge expedited removal proceedings by filing cases in federal court. The Trump administration has relied on expedited removals to quickly deport immigrants who have come into the country at the southern border. Immigrants who present themselves to border patrol agents after arriving in the U.S. undergo a credible fear examination. If the agent determines that the immigrant does not have a credible fear, the immigrant may appeal the initial determination to an immigration law judge. If the immigration law judges find no credible fear, the immigrants may be deported. While several courts have ruled that immigrants cannot appeal the immigration judge’s ruling, the U.S. Court of Appeals for the Ninth Circuit recently ruled otherwise.

Challenges to Expedited Removal

According to the ruling by the U.S. Court of Appeals for the Ninth Circuit, asylum seekers have rights to appeal their detentions in federal courts even if they are in an expedited removal process. This ruling could block the Trump administration’s use of expedited removal proceedings as a way to deport people more quickly. However, the impact of the ruling will depend on whether federal judges are willing to grant stays on the removals of appellants.

The decision by the Ninth Circuit means there is a split in the circuits about the constitutionality of the judicial procedures that are used in expedited removal proceedings. The U.S. Supreme Court will likely need to resolve the issue.

Problems With Credible Fear Determinations

When people seek asylum in the U.S., they must pass a credible fear determination. Asylum seekers who express a fear of getting returned to their home countries will undergo a credible fear interview that is conducted by an asylum officer. The asylum seekers are detained while they are waiting for the determination to be made. If the officer determines that people do not have a credible fear, the immigrants may then ask for a review of the decision by an immigration law judge. If the judge rules against them, they can be removed from the U.S. and returned to their home countries. Since immigration law judges are DOJ employees, this means that asylum-seekers who aren’t granted the right to challenge their rulings in federal court may have their due process rights violated.