In one week, USCIS is set to begin accepting applications under the new more expansive rules announced November 20th. USCIS has released it’s new FAQs outlining DACA 2’s rules and a qualified applicant will have to meet the following requirements:

  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012, meaning that:
  • You never had a lawful immigration status on or before June 15, 2012, or
  • Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012.
  1. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  2. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Whether the program will actually start next week may be affected by a judge in Texas. Most of you have probably heard about the Republicans’ lawsuit against the executive actions. The judge was cherry picked from every court in the country to find one that would very likely order the President’s program halted either in the states that sued or across the country.

That’s likely to lead to a temporary disruption and, frankly, I’ll be surprised if the program starts on the 18th. The White House will quickly appeal to the 5th Circuit Court of Appeals which may or may not lift the injunction. If they don’t, the programs are likely to be delayed by several months.

Whether this long delay happens or not, the judge ruling against the President could have an unintended consequence. The Republicans are in a major bind trying to figure out how to get out of their strategy to hold the DHS budget hostage to force the end of the deferred action programs. They don’t have the votes and apparently don’t really want to carry out their threat to shut down the agency responsible for America’s domestic security.

So the Texas decision may give the GOP an exit strategy where they can say that the court has done the job of stopping the President and now they don’t have to worry about that anymore. If that’s what they need to get them out of this jam, so be it. But the odds are still very much with the President because the law is on his side. The chance that the Texas judge’s ruling – assuming we don’t get a surprise ruling for the President – would survive the appeals process is not great.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind

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One Response to Will DACA 2 Start on Time?

  1. Don Riding says:

    You make it seem unfair that the Republicans would go shopping for a favorable judge. That is what everyone does, both Republicans and Democrats.

    I was offered a job working as a retired immigration officer working on these applications. I declined because I would have to relocate and I was concerned the program might be shut down before I had earned enough to make the move to Arlington, VA worth the expense.

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