The DACA program, which stands for Deferred Action for Childhood Arrivals, is a program initially implemented by President Obama in 2012. DACA is often referred to as the program for the “DREAMers.” The program is technically a deferred prosecution program in which the government chooses which foreign nationals it wishes to target in immigration enforcement operations and which foreign nationals it does not consider a priority for removal. DACA recipients voluntarily disclose their undocumented status to the government in exchange for “deferred action,” which is essentially a commitment by ICE not to begin deportation proceedings against them. To qualify for DACA’s current requirements, an applicant has to have been present in the United States on two specific dates, must be younger than a specific age, must have no disqualifying criminal history, must not possess a lawful U.S. immigration status, and must have arrived in the United States as a child.
DACA is a great option for individuals who did not choose to come to the United States without status, but who are now here and hoping to put down roots and build their lives. Many DACA recipients are able to work, get college degrees, start businesses, and purchase homes. Although DACA is not currently a permanent benefit, Congress and President Biden have been discussing at length different strategies to offer a more permanent option to current DACA recipients.
Temporary Protection Status. (TPS)
Temporary Protected Status, or TPS, is a temporary benefit afforded to individuals who are in the United States when disaster strikes in their home country. Such disasters include incidents like the civil wars in El Salvador, Syria, and Sudan/South Sudan, major natural disasters like the earthquake in Nepal or the hurricanes in Haiti, or sudden civil or political unrest like in Nicaragua and Venezuela.
The TPS designation is made by the U.S. Department of Homeland Security based on regular reviews of the country conditions as they improve following a serious disaster. Conditions in some countries remain difficult for a long time, leading to long-term TPS designations that last years or even decades.
It is important to note that TPS is not a permanent status and it does not lead to a green card or U.S. Citizenship.
Many recipients of TPS enjoy the renewable Employment Authorization Document (“work permit”) while they continue to pursue other possible immigration benefits that they may qualify to request.
Applicants hoping to receive TPS must make sure they meet all the eligibility requirements before applying, which includes specific dates during which they must have physically resided in the United States and limitations on criminal history, among others.
LGBTQ+ Asylum Issues
LGBT+ individuals around the world often live in unsafe conditions because of discrimination and persecution aimed at punishing them for being who they are. In some countries, same-sex relationships and gender transition are explicitly criminalized or culturally stigmatized so heavily that their freedoms and safety can be in jeopardy. In other countries, the laws about same-sex relationships or gender transition might be more lenient, but cultural practices persist in creating conditions of persecution and discrimination.
Being LGBT+ has largely been recognized in U.S. asylum law as a protected category of identity. If an LGBT+ person can establish that their asylum claim meets the other required elements, that person can hope to be granted asylum and be permitted to remain in the United States permanently, living authentically with confidence.
Because of the nuance involved in proving LGBT+ identity and country conditions, a consultation with an affirming, informed, and allied attorney can make all the difference in your asylum case.
Minors and Children (SIJS)
Special Immigrant Juvenile Status, or SIJS, is a special status available to minors in the United States who can establish in a domestic court that they were abandoned, neglected, or abused by one or both of their parents. This type of application is extremely beneficial for minor children who might not otherwise qualify for an immigration status in the United States.
The process for securing SIJS can be tricky because it involves two different types of U.S. legal systems. First, the minor and their U.S. guardian have to file a Petition for Guardianship or Allocation of Parental Responsibilities (link to family law page on APR) in a U.S. domestic court. The requirements for this type of domestic case vary by jurisdiction. In Colorado, children up to the age of 21 can still benefit from this type of strategy.
If the domestic court grants the requisite orders, the minor can then file a self-petition for SIJS using Form I-360. If the petition is granted and once a visa becomes available, the minor can apply for a green card or Lawful Permanent Residency.
This status ultimately allows the minor the opportunity to pursue U.S. citizenship, but importantly it does not allow for them to submit petitions on behalf of their parents in the future.
Asylum in the United States is an ever-evolving, increasingly complicated field of U.S. immigration law. Different presidential administrations have enforced different priorities and policies when it comes to asylum seekers in the United States.
Asylum typically has two tracks: affirmative applications and defensive applications. Affirmative applications are filed with USCIS for applicants who are not in removal proceedings or applicants who have designated as Unaccompanied Minors (UACs). Defensive applications are filed by respondents in immigration court cases, in order to defend themselves from deportation. Read more about defensive asylum here.
To win asylum, an applicant must establish a series of critical elements:
1. They have been persecuted in the past or are likely to be persecuted in the future;
2. The persecution is because of their religion, nationality, race/ethnicity, political opinion, and/or membership in a particular social group;
3. Their home country’s authorities are unwilling or unable to protect them from this persecution, and/or the government participates in the persecution;
4. There is no safe place to which the individual could reasonably relocate within their native country;
5. The asylum application was filed within the first year of the applicant’s arrival to the United States; and
6. The applicant does not have any disqualifying criminal or immigration history.
There are many grey areas in current U.S. asylum law, particularly surrounding gang and gender-based violence in Latin American countries. Individuals fleeing generalized violence or unsafe conditions in their home countries do not always qualify to receive asylum. The important question to ask when considering whether to apply for asylum is: “what is it about me/my family in particular that makes us especially vulnerable to persecution?”
Applicants for asylum are often eligible to get a work permit while they wait for their case to be decided.
Because of the complicated nature of asylum law and the way USCIS currently interprets it, individuals considering applying for asylum should not hesitate to schedule a consultation with an experienced U.S. asylum attorney to make sure they are familiar with the elements of their case and what they need to prove to win.
Once someone receives asylum, they are later eligible to apply for a green card and ultimately become a U.S. Citizen, as long as they comply with the rules and requirements.
Children and young adults under the age of 18 who travel to the United States without a parent or guardian are designated “Unaccompanied Minors” or “UACs.” These young people may be seeking asylum because of persecution they suffered in their home countries but have to overcome the additional challenges of locating a U.S.-based sponsor who can take them in and help them navigate the immigration system.
UAC asylum cases have some benefits, including a “second chance” at applying for asylum before having to do so in front of an immigration judge. However, there are many difficult issues in these cases, including placement in a guardian’s home after detention in a youth shelter, employment authorization, and the likelihood of winning the asylum claim.
Unaccompanied minors also often face issues around attending school, language barriers, and sometimes even criminal issues. An experienced immigration attorney can help you put the pieces together so that these complications don’t overwhelm you and your family.
T and U Visas
Victims of serious crimes in the United States may be eligible to apply for special visas called T or U Visas.
T Visas are available to victims of human trafficking, typically when people are smuggled across the border for forced labor (manual labor or sexual labor). This can sometimes include wage theft and other kinds of coerced labor. T visas do not require a law-enforcement officer to certify the crime, but this can help bolster the strength of the application.
U Visas are available to victims of qualifying crimes from a limited list of serious crimes.
Learn more about U Visas here. One important requirement to qualify for a U Visa is that the victim must have cooperated with law enforcement in the investigation and prosecution of the crime. This means that if victims fail to appear in court, or do not take calls from prosecutors, they may not be eligible to receive a U Visa even if they were victims of serious crimes.
The process of applying for a U Visa is very long. It begins with requesting a U Visa Certification from one of the law enforcement agencies who participated in the investigation or prosecution of the crime. This could include the police department, sheriff’s office, prosecutor or District Attorney’s office, and/or the judge. The law enforcement agency does not have to certify a U Visa, even if you meet all of the eligibility requirements. Each agency, jurisdiction, and department has a different procedure and set of policies about signing U Visa Certifications. Some jurisdictions have never heard of a U Visa at all; others have a designated U Visa contact person.
If the U Visa Certification is signed, the U Visa application must be filed with USCIS within six months of the date of signature. Filing the application with the signed U Visa Certification puts the applicant in the very long line for a decision.
USCIS only issues 10,000 U Visas per year, even though many more people apply. This means that the line keeps getting longer, and it only shortens by 10,000 people each year. The backlog is so long that all of the annual U Visas are typically issued within the first day of their release. To try to address this years-long delay, USCIS conducts a provisional approval so that applicants can receive work permits while they wait for their place in line to be current.
This means that if the U Visa case isn’t filed correctly, applicants may not discover this for five years or longer. In order to get in line for the provisional work permit and make sure that your U Visa case is filed correctly from the beginning, contact an experienced immigration attorney with expertise in U Visas.
Violence Against Women Act/Domestic Violence
Sadly, some U.S. Citizens and Lawful Permanent Residents commit domestic violence against foreign national spouses. Congress realized that our system needed a balance for the unequal power dynamics between abusive U.S. Citizen or Lawful Permanent Resident spouses and their foreign, sometimes undocumented spouses. This was the vision behind the Violence Against Women Act, or VAWA, which offers a corresponding U.S. immigration benefit for victims of domestic violence, independent of gender.
To apply for VAWA, a foreign national must prove that they were married to a U.S. Citizen or Lawful Permanent Resident, that the marriage was legitimate or “in good faith,” and that the spouse was extremely emotionally and/or physically abusive. The VAWA application has to be filed within two years of any divorce from the abusive spouse.
The foreign national can be a self-petitioner using Form I-360 and if their I-360 petition is approved, they can then move on to apply for a green card. VAWA applicants are not subject to the same financial standards as other Adjustment of Status applicants, and certain immigration violations can be waived through the VAWA process.
For more about VAWA, visit USCIS’s website about VAWA.
Our office is proud of our experience assisting victims of domestic violence not only with their immigration issues, but also with their divorce, legal separation, and custody disputes. Our goal is to empower people to put the pieces of their lives back together after a domestic violence incident, and begin to build the future they dream of for themselves and their family.