Soon after Tuesday's election of President-Elect Donald Trump, a chorus of Immigrants realized the potential impact of this national decision on their lives and began frantically calling immigration attorneys across the United States for help. They are fearful for the future of their families and themselves.
Although the future Chief Executive promised to charge ahead with the removal (deportation) of immigrants with criminal history, this approach isn’t necessarily new. Rather, it would be a continuation of the current administrations record breaking removal practices.
However, the most devastating effects will be felt by a smaller group that had seen a glimmer of hope in President Obama and his enactments of several Immigration-related Executive Orders. The most recent Order expanding a previous decision was quashed in Federal Court, although the core of the program was left intact for the “Dreamers”: those without criminal history who had entered the U.S. before the age of 16. These people grew up "American" and without the ability to return to their country of origin, all the while living in the shadows of society without a Social Security Number or lawful permission to work and under the ever-present threat of removal. Moreover, most entered the with their parents and without any knowledge of what was occurring.
The Executive Action by President Obama gave these people the ability to work and a shield against removal. The program called "Differed Action for Childhood Arrivals", or "D.A.C.A.", granted this permission for 2-year intervals.
The new President-Elect, Trump, has promised that he would roll back the executive actions of the previous President. What would this mean for the Dreamers that will not be able to renew their status, but have already identified themselves to the government? One can only speculate at this time.
Immigration lawyers have been scrambling to figure out how to help their frenzied clientele. For most of these immigrants, there are no real options or help. If nothing is done, they will revert back to their status before being granted “D.A.C.A.” However, for some that have an immediate U.S. citizen relative (typically a spouse), there’s hope of obtaining lawful status (a Green Card) through that relative. Nonetheless, the road is difficult, long, expensive and far from certain. Two options exist, both of which can be easily altered by the new President:
1) Another one of President Obama’s executive actions known as a "Provisional Waiver" allows those whose only immigration violation was unlawful presence in the U.S., to obtain a waiver of this issue before going to the U.S. Embassy abroad for their Green Card interview. Previous to this, an applicant that had entered the U.S. unlawfully had to exit the U.S. to have their interview, then after an initial denial due to unlawful presence, they would file a waiver to overcome it. In some cases, this could take more than a year to be approved. The "Provisional waiver" allowed the applicant to wait in the U.S. until the approval is given, then go to the Embassy for the interview and avoid a long separation from their U.S. family, work and home.
This method is costly and not guaranteed to succeed. Moreover, it still requires a nerve-wracking interview at the U.S. Embassy which sometimes ends with a full denial, leaving the immigrant stranded abroad.
2) A 2012 Board of Immigration Appeals interpretation of a legal fiction known as "Advance Parole" allowed permission for D.A.C.A. recipients to leave the U.S. and lawfully reenter without triggering any legal complications if they could show a business or humanitarian need for that trip. Once lawfully reentered into the U.S., the Dreamer could obtain a Green Card based on being an immediate relative of a U.S. Citizen.
This interpretation smoothened out the process and avoided the consular/embassy interview. However, the new Administration can challenge this interpretation more forcefully and DHS/USCIS Officers can be instructed as an internal policy matter to treat these cases differently or put them on hold until further guidance is given.
I have been advising clients for years to use the latter option, but many immigrants fear that they would not be permitted to return after leaving. They believe this option is “too good to be true.” The time to take advantage of this option may be drawing to a close and an avalanche of Dreamers are now requesting it. This will likely cause a backlog and increased scrutiny, causing some to miss out on this opportunity even though it is still available.
The Dreamers are the people hardest affected by an immigration backlash in the U.S. They were raised in America and hardly know their country of origin. English is their first or primary language (and some do not even speak their mother country’s tongue). Moreover, they are not able to openly look for work which has led to abusive employment practices by some employers willing to hire them. They are afraid to go to the police, the courts and other authorities out of fear of being caught even after being victims of crimes. They are truly second class citizens in the freest country in the world. Yet, they are some of the hardest-working people I have ever encountered.
My heart goes out to the people who are scared for their lives. I strongly urge those affected to seek legal advice today as some of the currently available options may no longer exist in the near future.
Disclaimer: The JQK Law Firm is a full service immigration practice headquartered in Los Angeles, CA. None of the Information provided above serve as Legal Advice nor do they create an Attorney-Client Relationships. Please consult an attorney for help on your specific immigration matter.