National Developments

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• A Department of State Notice Rescinded Presidential Proclamations 9645 and 9983.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.”

According to NAFSA: Association of International Educators:

“On August 30, 2022, DHS published a final DACA rule that went into effect on October 31, 2022.

• Read the DACA final rule published at 87 FR 53152 (August 30, 2022)
• Read the DACA regulations added to the Code of Federal Regulations as 8 CFR 236 Subpart C (there were also minor conforming amendments to the employment verification regulations at 8 CFR Part 274a)

However, a prior court-imposed order currently limits the October 31, 2022 effective date. USCIS describes this limitation in an update to its DACA FAQs:

‘The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.’

See USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions…

Partial summary of the final DACA rule

• The final rule maintains the program’s existing eligibility criteria as established in 2012, and recipients would still receive 2 years of protection from removal (deferred action).
• In response to public comment on the proposed rule, the final rule will retain ‘the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with the Form I-821 (“bundled process”) (under the proposed rule, applying for employment authorization would have been optional).  In both the current and final programs, applicants must establish economic need on Form I-765WS worksheet to qualify for work authorization.
• In the final rule, ‘ DHS adopts the fee structure proposed in the NPRM of an $85 filing fee for Form I-821D, as well as a Form I-765 filing fee, currently set at $410.’
• The new regulation ‘rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012.’ However the rule also provides that, ‘All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum.’

But see USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

Threshold criteria under the final DACA rule

The final rule includes the following longstanding threshold criteria: that the requestor must have:

(1) come to the United States under the age of 16;

(2) continuously resided in the United States from June 15, 2007, to the time of filing of the request (‘Brief, casual, and innocent absences from the United States will not break the continuity of one’s residence. However, unauthorized travel outside of the United States on or after August 15, 2012, will interrupt continuous residence, regardless of whether it was otherwise brief, casual, and innocent.’ Other rules apply for ‘brief, casual, and innocent’ for travel before August 15, 2012.);

(3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request;

(4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request (‘If the requestor was in lawful immigration status at any time before June 15, 2012, or at any time after June 15, 2012, and before the submission date of the request, he or she must submit evidence that that lawful status had expired or otherwise terminated prior to those dates.’)

(5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

(6) not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety;

(7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order; and

(8) Applications are determined on a case-by-case basis. ‘Even if the threshold criteria… are all found to have been met, USCIS retains the discretion to assess the individual’s circumstances and to determine that any factor specific to that individual makes deferred action inappropriate.’)”

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.”

On September 5, 2017, the Department of Homeland Security issued a memo rescinding the June 2012 DHS memo that established the Deferred Action for Childhood Arrivals (DACA) program. The new memo set forth a plan for phasing out DACA, which included a limited period of time in which the DHS would adjudicate certain requests for DACA and associated applications for work permits (Employment Authorization Documents or EADs). The DHS plan was as follows:

• Keep effective all previously approved DACA and work permits (EADs) for the remaining duration of their validity period.
• Adjudicate on an individual, case-by-case basis initial, properly filed requests for DACA that were pending as of September 5, 2017.
• Reject all requests for DACA that were filed after September 5, 2017.
• Adjudicate on an individual, case-by-case basis properly filed requests for DACA renewal from those beneficiaries whose benefits will expire between September 5, 2017, and March 5, 2018, as long as the requests are filed by October 5, 2017. All other renewal requests will be rejected by the DHS.
• Not approve any new or pending applications for advance parole to travel abroad. However, the DHS will honor the stated validity period for previously approved applications for advance parole. Remember that U.S. Customs & Border Protection (CBP) retains the authority to determine the admissibility and eligibility for parole of anyone presenting at the border, and U.S. Citizenship and Immigration Services (USCIS) retains the authority to revoke or terminate advance parole documents.

On January 9, 2018, a U.S. District Court ordered the Department of Homeland Security to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments.  However, new applications from applicants who have never before received deferred action will not be processed, and DHS may still deny the right of a DACA enrollee to return to the United States if they travel abroad using advance parole.

On August 3, 2018, the U.S. District Court for the District of Columbia again concluded “that DHS’s September 2017 decision to rescind the DACA program…was both subject to judicial review and arbitrary and capricious.” According to D.C. District Judge John D. Bates’ 25-page opinion, “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” The U.S. government appealed the Court’s decision.

On November 8, 2018, the 9th Circuit Court of Appeals issued a decision upholding and continuing the January 9, 2018 preliminary injunction granted by the District Court of the Northern District of California. The National Immigration Law Center explains that “In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was ‘arbitrary and capricious’ and therefore unlawful. All three judges also noted that there was sufficient evidence that DACA was ended due to anti-Mexican or anti-Latino animus to justify keeping the injunction in place.” It is likely that the U.S. federal government will seek review by the U.S. Supreme Court. Please refer to the NILC’s Status of Current DACA Litigation page for more information.

On June 18, 2020, the U.S. Supreme Court (SCOTUS) held that the 2017 Department of Homeland Security (DHS) memo rescinding DACA was “arbitrary and capricious” under the Administrative Procedure Act in its opinion on the case Department of Homeland Security et al. v. Regents of the University of California et al. This remanded the issue back to the DHS; the agency was required to consider again the “conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” This decision left DACA intact for the time being.

On August 24, 2020, USCIS released implementing guidance (dated August 21, 2020) titled Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2020 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.'” This implementing guidance was summarized in the August 24, 2020 news alert  as follows:

“Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires. USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

• Travel to support the national security interests of the United States;

• Travel to support U.S. federal law enforcement interests;

• Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or

• Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

If you currently have DACA approval or a pending DACA application, please speak to a licensed, experienced immigration attorney or recognized/accredited organization or representative before making any plans pertaining to work, travel, or applying for a DACA renewal. Among many options, CUNY CLEAR is an excellent resource for free legal services and guidance.