Immigration – DACA

Conversations without Walls is once again meeting in person! This conversation group is for all immigrants– documented and undocumented– and allies to connect and share their experiences in a welcoming environment. For this semester’s schedule and details, view the flyer.

The U.S. government has issued a number of visa and entry restrictions pertaining to COVID-19. NAFSA: Association of International Educators continues to collect and update these on its page COVID-19 Restrictions on U.S. Visas and Entry. Please refer to this page for up-to-date information related to these matters.

• Proclamation 10141 of January 20, 2021, Proclamation on Ending Discriminatory Bans on Entry to The United States, revokes “Executive Order 13780, and Proclamations 9645, 9723, and 9983.” Published in the Federal Register at 86 FR 7005 (January 25, 2021).
• A Department of State Notice Rescinded Presidential Proclamations 9645 and 9983. The Department of State notice is as follows:

“Rescission of Presidential Proclamations 9645 and 9983

Last Updated: March 10, 2021

On January 20, 2021, President Biden signed a Presidential Proclamation titled “Ending Discriminatory Bans on Entry to the United States.” This proclamation ends the travel restrictions under Presidential Proclamations 9645 and 9983 that had suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

Following the Department’s review, immigrant visa (IV) applicants who were previously refused due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, may reapply for a visa by submitting a new visa application (DS-260) and paying a new visa application processing fee. In the alternative, IV applicants refused due to either P.P. 9645 or 9983 who were determined not to qualify for a waiver on or after January 20, 2020, may request their local embassy or consulate to reconsider their case within one year of the date of their waiver refusal without submitting a new application or paying a new visa application processing fee, consistent with Department regulations. IV applicants who were refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated as of January 20, 2021, will continue to have their applications processed. Embassies and consulates are prioritizing the adjudication of applications for those individuals who, as of January 20, 2021, were awaiting an outcome from the P.P. 9645/9983 waiver process.

Nonimmigrant visa applicants who were previously refused due to either P.P. 9645 or 9983 and did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application processing fee if they wish to reapply for a visa.

Pursuant to President Biden’s proclamation, the Department can immediately process visa applications for individuals from the affected countries. Please note that the rescission of P.P.s 9645 and 9983 does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews. The resumption of routine visa services during the ongoing COVID-19 pandemic, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since the beginning of the COVID-19 pandemic and will continue to do so as they are able. Applicants, including those previously denied due to P.P. 9645 or 9983, should consult the website of their nearest U.S. embassy or consulate to determine if their case qualifies for expedited processing. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services. Please see here for more information on the phased resumption of visa services.”

On September 28, 2021, DHS published a proposed DACA rule in the Federal Register. For details, see the “Deferred Action for Childhood Arrivals” proposed rule in the Federal Register.

“On September 10, 2021, the Department of Justice filed a notice of appeal to the Fifth Circuit Court of Appeals seeking to overturn the Texas District Court’s ruling by U.S. District Court Judge Andrew Hanen in favor of nine states led by Texas that found the creation of the DACA program violated federal administrative law.” (NAFSA: Association of International Educators)

On July 19, 2021, USCIS issued a Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision:

“Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests.

All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.

USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form. USCIS will comply with the court order, continue to implement the components of DACA that remain in place, and work on publishing a Notice of Proposed Rulemaking designed to strengthen and fortify DACA.”

On July 27, 2021, USCIS updated its DACA FAQs.

“On July 16, 2021, Judge Hanen ruled that the 2012 DACA program begun by the Obama administration violated the Administrative Procedure Act (APA) notice and comment requirements, and that it was not in accordance with the Immigration and Nationality Act. The court therefore vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., ‘those not already granted by the date of this order’). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection, including ancillary requests for DACA advance parole for those DACA recipients. Read the July 16, 2021 court order, and read the July 16, 2021 injunction order.” (NAFSA)

“On January 20, 2021, President Biden signed a Presidential Memorandum that directed the Secretary of Homeland Security, in consultation with the Attorney General, to ‘take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.’ See Memorandum for the Attorney General and the Secretary of Homeland Security, published in the Federal Register at 86 FR 7053 (January 25, 2021).” (NAFSA)

On December 4, 2020, the U.S. District Court for the Eastern District of New York ruled that “the Wolf Memorandum is VACATED. In light of the vacatur, all parties agree that the DACA program is currently governed by its terms as they existed prior to the attempted rescission of September 2017.” The judge’s December 4, 2020 order is in the case Batalla Vidal, et al. v. Nielsen, et al., Case # 1:16-cv-04756.

“in addition to vacating the Wolf Memorandum, the court orders the following relief:

• DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre-Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.”