DACA, TPS & EAD’s: The Big Immigration Stories

By:  Richard Hanus, Esq.

September 24, 2023

DACA

Deferred Action for Childhood Arrivals or “DACA” came to life in 2012 as an initiative allowing certain qualifying foreign nationals arriving in the U.S. as children, an opportunity to receive Employment Authorization Documents (EAD) and otherwise be shielded from deportation.   Since its implementation by way of President Obama’s Executive Order, DACA has allowed for life changing benefits for 600,00 young adults.  DACA has also been mired in litigation, with the latest chapter unfolding in the past week, where a federal judge in Texas once again proclaimed the program to be unlawful, allegedly having been implemented in violation of the Administrative Procedures Act.

This of course is not the first time DACA has been struck down by a court, and for now, its primary impact is a continued roadblock for first time applicants looking to receive their initial EAD.  Those approved for DACA prior to February, 2021 will continue to be eligible to extend their EAD’s in two year increments.

This recent court decision will likely be the third DACA related case headed to the U.S. Supreme Court for review.  In the meantime, hopefully our society will come to terms with the fact that this important segment of our population is here to stay (along with the rest of our otherwise law abiding 12 million undocumented) and agree on legislation allowing for a path to permanent legalization.

 Extension of TPS for Venezuelans

Temporary Protected Status or “TPS” is an immigration status designation our executive branch can grant to foreign nationals of a certain country who are present in the U.S., whether documented or not, if the country in question is coping with civil war, natural disasters or other extraordinary humanitarian circumstances.  With continued political oppression prevailing under an authoritarian regime, Venezuela’s current TPS designation was extended in recent days for an additional 18 month period, allowing for the more than 500,000 Venezuelans present in the U.S. (as of July 31, 2023) to be eligible for temporary immigration status, including an Employment Authorization Document.

5 Year Employment Authorization Documents for Certain Eligibility Categories

There are more than 60 ways a foreign national in the U.S. can obtain an EAD.  Despite this, few if any of the 12 million undocumented foreign nationals in the U.S. are eligible for one.  In the past, EAD’s were issued with a one or two year period of eligibility.  Last week, the U.S. Department of Homeland Security announced its intention to issue EAD’s with five year validity for certain classes of eligibility, including to foreign nationals:

• granted asylum or refugee status, or with pending asylum claims,
• granted withholding of removal;
• with pending applications for permanent residence (adjustment of status) and
• with pending applications for cancellation of removal (for long time undocumented residents with U.S. family and facing extreme hardship)

Undoubtedly, once implemented, this new policy will make a huge impact and help allow for greater convenience for employers and their foreign workers.  Just as important, it will help free up resources within DHS’ Citizenship and Immigration Services branch to focus on reducing the many backlogs now plaguing our current immigration benefit system.