New Proposed DACA Rules
On September 28, 2021, the government published a proposed federal regulation announcing its intent to codify DACA.
What are the eligibility guidelines?
The proposed rule keeps the same guidelines for eligibility as DACA 20121
- A person may qualify for DACA if they can show that they:
- (1) Were born after June 15, 1981
- (2) Entered the United States before turning 16;
- (3) Have continuously resided in the United States since June 15, 2007 up to the present;
- (4) Were physically present in the United States on June 15, 2012, and at the time of making the request for DACA;
- (5) Were without lawful immigration status as of June 15, 2012 and at the time of requesting DACA;
- (6) Are currently enrolled in school, have graduated from high school, have obtained a certificate of completion, or are an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; and
- (7) Have not been convicted of a felony offense, a significant misdemeanor offense, three or more non-significant misdemeanor offenses, or do not otherwise pose a threat to national security or public safety. and would codify the following:
What would this proposed rule do?
- Employment authorization will require a separate application and be optional. Although the total fees will remain the same ($495), persons can pay $85 when requesting DACA (Form I-821D) and have the option to request a work permit, which would cost an additional $410 (Form I-765). The request for a work permit can be submitted at the same time or subsequently. Individuals should note that regardless of when they request employment authorization, the grant period for the work permit will not exceed the grant period given by DACA.
- DACA requestors must establish an economic need to be eligible for employment authorization by filling out Form I-765WS along with Form I-765.
- DACA recipients are lawfully present in the United States under the Social Security regulations.
- DACA recipients do not accrue unlawful presence.
- DACA recipients are eligible to petition for Advance Parole for urgent humanitarian or significant public benefit reasons.
- DACA recipients returning with advance parole can satisfy the “inspected and admitted or paroled” requirement for adjustment of status purposes under INA § 245(a).
- Information about DACA recipients and their family members included in DACA requests will not be shared affirmatively with Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) or law enforcement agencies for immigration enforcement-related purposes, unless an exception applies, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
- While the requirements for DACA eligibility would remain the same, DHS is proposing to clarify the term “significant misdemeanor” as specific misdemeanors which would be automatic bars to DACA: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or is one for which the individual was sentenced to time to be served in custody of more than 90 days. Additionally, DHS is welcoming comments on whether to include a more detailed definition of these offenses, including “minor traffic offenses”
- USCIS has the discretion to terminate a person’s DACA at any time with or without the issuance of a Notice of Intent to Terminate (NOIT) when a person does not meet the threshold criteria, commits disqualifying crimes, presents national security, public safety concerns or other adverse factors
- USCIS will automatically terminate DACA when a Notice to Appear (NTA) is filed with the immigration court (unless USCIS issues the NTA in relation to an asylum application) or a DACA recipient leaves the United States without advance parole.
- A DACA termination automatically results in the termination of the employment authorization document.
- DACA does not confer any rights or entitlements to remain in or re-enter the United States. DHS may initiate any criminal or other enforcement action against a DACA recipient at any time.
When will this rule be final?
- We do not know when the proposed rule will go into effect. Federal law requires that the government read and consider every unique comment before issuing a final rule. This can be any time after November 29, 2021.
New Proposed Asylum Rules
This proposed rule joins a number of actions the Biden-Harris Administration is taking to build a fair, orderly, and humane immigration system, including by expanding pathways to apply for protection and opportunity in home countries, addressing the root causes of migration, and securely managing the Southwest border.
What are some of the changes that are being proposed?
- An individual who establishes a credible fear of removal will be referred to a USCIS asylum officer for a hearing on the protection claims.
- The asylum officer will be authorized to adjudicate requests for asylum, as well as eligibility for statutory withholding of removal or for withholding or deferral of removal under the Convention Against Torture
- If denied, an individual may request de novo administrative review by an immigration judge
Who would the rule apply to?
- It would apply to individuals who are placed into expedited removal process on or after the effective date of the final rule.
- Rule would not apply to unaccompanied children or to individuals already residing in the United States.
New COVID-19 Vaccination Requirement to become a lawful permanent Resident
U.S. Citizenship and Immigration Services announced that, effective October 1, 2021, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination.
Who is required to receive the COVID-19 vaccine?
- It applies prospectively to all Forms I-693 signed by the civil surgeons on or after that date.
- This typically includes individuals applying to become a lawful permanent resident.
Are there any exceptions to this new requirement?
- USCIS may grant blanket waivers if the COVID-19 vaccine is:
- Not age-appropriate
- Contraindicated due to a medical condition;
- Not routinely available where the civil surgeon practices; or
- Limited in supply and would cause significant delay for the applicant to receive the vaccination.
- Additionally, individuals may apply for individual waivers based on religious beliefs or moral convictions by submitting Form I-601, Application for Waiver of Grounds of Inadmissibility.
TPS Automatic Extension
I have TPS, was my EAD extended automatically?
- Those who are beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will retain their TPS.
- The government has automatically extended the validity of Employment Authorization Documents (EADs) and other TPS relation documentation through December 31, 2022.
Are there any requirements to the automatic extension?
- An individual must continue to remain individually eligible.
New Vaccine Rules For International Travelers
International travelers flying to the U.S. from most countries are now required to have been vaccinated, while travel restrictions from several countries, including India, China and some European countries, will be lifted.
I want to fly to the United States, do I need to be fully vaccinated?
- Yes. Beginning November 8, 2021, noncitizen, nonimmigrant air travelers coming to the United States will have to show proof of vaccination status before getting on the plane.
Are there any exceptions to the vaccination requirement?
- Yes, the following exceptions apply:
- Not required if under the age of 18
- A pertinent medical condition exists
- Your country has a low vaccine availability
What are the requirements for those who fall within the exceptions?
- In order to fly to the United States, an unvaccinated traveler will have to show a negative COVID-19 test within one day of departure.
Will the travel bans on those traveling from certain countries still in effect?
- No, with the new vaccination requirement, travel bans will be lifted.
If my country has a low vaccine availability, are there any other requirements?
- Yes, you must agree to be vaccinated within 60 days of arrival.
The November 2021 Visa Bulletin Has Arrived!
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 713-289-4546 or via email at email@example.com