White House Makes Demands to Congress in Exchange for DACA Deal

On October 8, 2017, the White House sent Congress a list of Immigration Principles and Policies that President Trump will seek to be included as part of any legislation to provide legal status and protection from deportation to the 800,000 “DREAMers”—the young undocumented immigrants brought to the United States as children. Among the president’s demands are funding and constructing a southern border wall between the United States and Mexico and changing the employment-based immigration system.

This move follows the announcement by Attorney General Jeff Sessions on September 5, 2017, that the Trump administration would rescind the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary deportation relief and work authorization to certain Dreamers. DACA was established by the Obama administration on June 15, 2012, when former Secretary of Homeland Security Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Attorney General Sessions’s announcement immediately suspended the filing of initial DACA applications. Current DACA beneficiaries with valid employment authorization document (EAD) cards expiring between September 5, 2017 and March 5, 2018, were eligible to apply for an EAD extension through October 5, 2017. After October 5, 2017, the U.S. Citizenship and Immigration Services (USCIS) will reject all DACA renewal applications and associated EAD renewal requests.

Without the DACA program in place or another executive agency program to replace it, the Dreamers’ future in the United States is uncertain. Congress has expressed bipartisan support for legislative relief for these undocumented foreign nationals; however, any bill that passes both the House of Representatives and the Senate will be subject to potential veto by the president. The White House’s new list of provisions to be included in such legislation could thwart the success of a bipartisan effort to provide protection to the Dreamers.

The president’s demands include, but are not limited to, the following—many of which would directly impact employers:

• establishing a points-based system for employment immigrants seeking to obtain permanent residency (i.e., green cards) in the United States in order to curb low-skilled immigration in favor of factors that allow individuals to assimilate and support themselves financially;
• requiring that employers utilize the E-Verify system to confirm employment eligibility, and impose strong penalties for non-compliance;
• expanding the definition of unlawful employment discrimination to include replacement of U.S. citizen workers by foreign workers or the preferential hiring of foreign workers over U.S. citizen workers;
• enabling expedited removal of visa beneficiaries who overstay their period of admission in the United States;
• expanding the grounds of inadmissibility of foreign nationals into the United States to include such factors as gang membership and certain crimes which do not currently render individuals inadmissible, including drunk driving offenses;
• limiting family-based immigration to include only spouses and minor children;
• providing resources for the hiring of 10,000 more Immigration and Customs Enforcement officers, as well as additional immigration judges and government lawyers, in order to accelerate the process for deportation;
• enhancing scrutiny of, and expedited means of removal for, asylum applicants and unaccompanied alien children;
• blocking “sanctuary cities” from receiving certain federal grant money; and
• financing the construction of a southern border wall between the United States and Mexico.

The Ogletree Deakins Immigration Practice Group will continue to monitor and report on developments on this issue and other important immigration-related news as additional information becomes available.