After DACA and TPS Terminations, What’s Next?

After DACA and TPS Terminations, What’s Next?

Havana, Cuba. It is unknown how U.S.-Cuban relations will change under the Trump Administration

On September 5, 2017, President Donald J. Trump, through a memorandum issued by the Department of Homeland Security (DHS), called for an end to the Deferred Action for Childhood Arrivals (DACA) program. The program would officially end deportation protection for 800,000 young, undocumented adults after March 5, 2018. The administration called on Congress to act for any further legal protections. Without assistance of a Presidential executive order, only Congress can change the law to protect those affected.

On November 6, 2017, November 20, 2017 and January 8, 2018, the DHS further declined to extend Temporary Protected Status (TPS) to citizens of Nicaragua, Haiti and El Salvatore, respectively. The Trump Administration has further hinted it intends to terminate TPS for Honduras, after initially granting a six-month delay. While these programs won’t officially terminate protected status for these foreign citizens until 2019, it signifies a changing atmosphere under the current administration. There are a few countries left on the TPS registry, their upcoming extension deadlines are as follows:

Syria – March 31, 2018
Nepal – June 24, 2018
Yemen – September 3, 2018
Somalia – September 17, 2018
Sudan – November 2, 2018
South Sudan – May 2, 2019

First and foremost, the President has the power to terminate the aforementioned protected statuses. DACA and TPS are not legal ‘statuses’ in that they do not grant foreign citizens permanent residency, which could lead to citizenship. They are only temporary protections from deportation. Since Syria and Yemen are included in the troubled ‘travel ban’, it is unlikely that TPS protection for these countries will continue. On the other hand, in the event of an ongoing war or devastating environmental event, the President also has the power to grant temporary protected status to any citizen from a foreign country who is currently within the United States. However, the President’s long-standing strong anti-immigration comments show it is unlikely this would happen. It is also unlikely the president will follow his predecessor and create any further stays from deportation for any class of immigrants.

Many people – inside and outside of the immigration community – are asking: what’s next? Without comprehensive immigration reform, and in consideration of the President’s statements on immigration, it is hard to tell. Only Congress can change the law, but the President can change how the law is implemented. As of January 2018, the President and Congress are undergoing serious talks about immigration reform. Some current concepts under immigration may be affected. These include:

CHAIN MIGRATION: Chain migration is the concept that relatives of U.S. citizens and legal permanent residence follow their relatives to the United States to live permanently. It is a ‘duh’ concept: families want to remain with families. Under the current law, spouses, children (and their children), parents and brothers and sisters of U.S. citizens may obtain green cards to live and work in the United States. Spouses, children and unmarried adult children over 21 years old of legal permanent residents may also immigrate to the United States. Despite the system being flagged with long, burdensome delays and restriction quotas, most of these relatives eventually make the move. Every year, hundreds of thousands of familial chain migrants enter the United States as legal permanent residents.

President Trump has stated time and time again that he wants to limit chain migration. A few Congressional members have publicly called for a complete termination of the category system, limiting permanent residency to only spouses and minor children of U.S. citizens. Other members have called for a merit or point-based system. It is unknown how family-based immigration will change.

DIVERSITY LOTTERY: In order to encourage a diverse range of immigrants from almost every country in the world, up to 50,000 visas are issued every year to citizens (and their families) of certain underrepresented countries. Once in the U.S., these individuals may apply for a green card and eventually obtain citizenship. The program limits which countries may participate, and which family members may accompany. There are also education, work and health pre-requisites to meet. Since the beginning of the program, many people have successfully immigrated to the United States under the diversity program.

This visa program came under scrutiny after a 2017 terrorist attack in New York City was caused by an individual who came to the United States under this program. Politically and logically speaking, there is no direct or indirect link between the diversity program and terrorism. Despite evidence to the contrary, and despite its positive effects, it is unclear if this immigration avenue will survive.

EB-5 INVESTMENT GREEN CARDS: The phrase “buying a green card” is a true and untrue concept under U.S. immigration law. Under the EB-5 category, a foreign national (and family) may immigrate to the United States after investing in a new business or investment in the United States. There are two general requirements: invest a certain amount of capital and create and maintain at least 10 new jobs. Generally, a foreign national must invest $1,000,000.00 in an urban area or $500,000.00 in a rural or economically depressed area. The program was created at a time when the country was thirsty for economic revitalization in the form of pure-cash investments.

Despite intense regulation and observation by U.S. immigration officials, it has become subject to scrutiny. Although there are certain rules as to what constitutes a new business and what constitutes new employment, immigration attorneys and foreign nationals have continuously found ways to bypass these stringent rules. Time will tell whether the program will be overhauled in the future.

Tourist boat in Capri, Italy, representing many different country flags

H1—B TEMPORARY VISAS: The H1-B is a visa, not a green card, but many H1-B recipients eventually become green card holders. The H1-B is a three year visa (extendable by another three years) that allows companies to temporarily hire qualified foreign workers. It is the company which applies for the visa applicant, due to a vacant position. Only 85,000 visas are granted every calendar year, although hundreds of thousands apply. At the end of the program, foreign nationals can chose to go home, switch to another non-permanent visa or seek permanent residency through their employer. Spouses and children may also accompany H1-B recipients.

The program has been criticized for a number of reasons. First, there is a grossly disproportionate pool system. Since thousands of applicants apply for few positions, it creates an unfair advantage for large companies over smaller companies looking to hire foreign nationals. Second, few countries and industries dominate the majority of H1-B recipients. Lastly, it is quite expensive. Between filing and lawyer fees, companies can expect to pay over $4,000.00 for an applicant who may not get picked for a visa. One thing is for sure: this program will be reconsidered in the context of overall immigration reform.

The last major immigration reform occurred in 1996 – over two decades ago. It is unclear what the next major immigration reform will look like, especially under an administration with openly critical views. It is also unclear how the President’s insistence on border security and vetting will affect current or proposed changes. Many advocates argue that a border wall is waste of spending, as most undocumented individuals in the U.S. have overstayed their already-issued visas, rather than sneak in through the U.S.-Mexican border. In addition, every single visa and every single green card that is issued to a foreign national is subject to intense background, criminal and security checks.

If – or when – immigration reform does happen, there will certainly be much to debate.

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