Update on DAPA and Expanded DACA

In November of last year, President Obama announced a series of immigration policy changes.  Many of the changes, relating primarily to employment-based immigration, were uncontroversial and are going forward as planned.  For example, the administrative process for granting permanent residency (“green cards”) for certain workers is being streamlined to avoid backlogs in processing these applications.  In addition, the President directed USCIS (United States Citizenship and Immigration Services) to issue a memorandum clarifying what types of “specialized knowledge” applicants for L-1B nonimmigrant petitioners need to demonstrate.

Two of the provisions announced in November have met significant opposition.  The first is the expansion of DACA, or Deferred Action for Childhood Arrivals.  DACA currently allows non-citizens who were brought to the United States as children, and who meet all other program requirements, to be granted lawful presence in the U.S. for a renewable period of two years.  Being granted DACA allows the recipient to live without fear of removal, and makes work authorization available for the two-year period.  The expansion of DACA would increase the renewable time period of lawful presence to three years.  It also seeks to eliminate the requirement that the candidate be born before June 15, 1981, thereby enlarging the pool of eligible applicants.  It is important to note that under neither form is DACA a grant of lawful permanent residence or “asylum” of any kind.

The Executive Action also created a new program, entitled Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA (initially called Deferred Action for Parental Accountability).  DAPA would also grant lawful presence and eligibility for work authorization for up to three years, but to parents of U.S. Citizen or Lawful Permanent Resident children.  The qualifying son or daughter must have been born on or before November 20, 2014, when the announcement was made, and the parent must have been continuously present in the United States since before January 1, 2010.  As with DACA, other qualifications apply, including successful completion of a background check.  It is estimated that over four million people qualify to receive DAPA benefits.

The States Respond

Within hours of President Obama’s announcement last November, Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal.

Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. The states sought an injunction to stop the implementation of DAPA and the DACA expansion.  Texas based its standing to challenge the policy on the alleged harm the state and its citizens would suffer if DAPA were put into place.  Texas currently uses taxpayer funds to supplement the cost of issuing driver’s licenses.  The theory was that since DAPA would entitle recipients to obtain licenses, Texas would either have to spend millions of dollars subsidizing licenses for non-citizens, or completely restructure their fee system.  The court agreed this was a specific potential harm that qualified the petitioning states the power to bring the suit against the federal government.

Continue reading