Episode 92: The future of “fragile” immigration statuses

Episode 92: The future of “fragile” immigration statuses 

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com. 

Intro & News Highlights 

In this week’s episode, BAL’s Kelli Duehning discusses fragile and quasi immigration statuses like DACA, the differences between them and what to anticipate regarding these statuses with a change in administration. Plus, the latest immigration news. 

From Dallas, Texas, I’m Rebecca Sanabria. 

Spotlight 

DACA, the Deferred Action for Childhood Arrivals program, was created by the Obama administration in 2012 to allow lawful residence, employment authorization and exemption from deportation for certain nonimmigrants in the United States.

Those eligible participants in DACA and other special programs, such as parole in place and Temporary Protected Status, are granted limited privileges while residing in the U.S. and are recognized as having either quasi or fragile immigration status.

Despite both classifications being particularly vulnerable to immigration policy shifts, depending on the election outcome, they are not the same. BAL’s Kelli Duehning, a partner and head of the San Francisco office, joined the BAL Immigration Report to discuss recent updates about these two different statuses and what to anticipate with a change in administration.

Duehning: So technically when people are coming to the United States, they generally are coming in either a temporary nonimmigrant status or your permanent immigration statuses. 

When we talk about quasi or fragile statuses, we’re talking about people who have been authorized to remain in the United States, but they’re technically not here in any lawful nonimmigrant or immigrant status. So these quasi or fragile statuses are here, but oftentimes they don’t have any way to move out of those fragile statuses. They’re just here on a special program or something that’s meant to be temporary until something more permanent might be found for them or they leave the United States. So those statuses would be those like your parole in place programs, TPS, DACA. All of these are statuses that are not meant to be permanent and just temporary statuses.  

The fragile statuses are more like those parole categories like Uniting for Ukraine, the Afghan parole program or all of those other parole programs that the department has now put into place to handle that surge at the border. Those are more fragile because they were issued by executive order and any new administration or unfriendly administration that comes in can take those away very quickly and end their statuses quickly as well.  

Now that’s different from quasi status, those like TPS and now DACA, because those statuses were in through a notice-and-comment rulemaking process. So in order for those programs to end, an unfriendly administration would need to ensure that the ending of those programs follow any notice-and-comment rulemaking due process. They can’t just end the program like an executive order.  

If you have an administration that’s friendly to these quasi statuses, then they should not be at any risk. If you have an administration that’s not so friendly to those quasi statuses or they don’t believe those quasi statuses should remain, then of course they’re going to be at risk. So, as we were saying before, some are more at risk than others because it could be only an executive order that gave them that status and that can quickly be ended immediately. 

For example, the parole programs that we were discussing, they were put in place under the Biden administration, like the Uniting for Ukraine. And many of these parole programs, since they were executive orders, can be taken away immediately. 

Sanabria: The fate of DACA could be decided by the U.S. Supreme Court within the next two years. Duehning provided updates on the case challenging DACA’s legality and possible outcomes. 

Duehning: The current status of DACA litigation is that the U.S. Court of Appeals for the Fifth Circuit will hear the oral arguments on the legality of the Biden administration’s DACA regulations that they tried passing, and that oral argument is going to be on Oct. 10. After that hearing, the court will then issue a ruling — and this is the first time that we will actually have any ruling on the actual legality of DACA. 

We believe that the circuit will likely uphold the district court’s ruling in the 2022 DACA regulations, finding that the program is unlawful, especially since this court has in the past affirmed the district court rulings against the government on DACA. And so that’s where we are currently. So we’re just waiting. 

When we talk about what will happen either under a Harris administration or a Trump second administration, we would anticipate under a Harris administration, we do know that she is very friendly to those in DACA and friendly of the DACA program. Thus, we would anticipate that they would try to do something for those folks in that DACA status. If for whatever reason that the program ends, we believe that her administration would try to find a way or a different way to protect them. 

Now that’s different than under a second Trump administration. We know that under the first Trump administration, they wanted to end the program and actively tried to do so. Therefore, we would anticipate that under a second Trump administration they would let the program end.  

Sanabria: President Biden recently announced an easier pathway to work visas for current, qualified DACA recipients. Duehning discussed the D-3 waiver and its potential future under either administration.  

Duehning: President Biden recently announced that there is a waiver available for those that are currently in DACA that have an approved nonimmigrant visa application and they’ve attended and graduated from a U.S. university. So, if they’ve met those qualifications and don’t have any other inadmissibility, then they are able to travel to a consulate outside of the United States to pick up the visa for that nonimmigrant visa employment-based application that they were approved for without having any issues in that travel situation. 

So the D-3 waiver, it allows that person, that person in DACA to return to the United States after picking up the employment-based nonimmigrant visa so that any unlawful presence that they may have triggered by leaving the United States does not prevent them from now returning. So we’re encouraging a lot of employers to work with their employees on DACA to see if they are eligible for that waiver, if they do have that approved employment-based nonimmigrant visa available. So if they’ve got that approval application, then we certainly want to see if they would be eligible for that D-3 waiver. 

Now we would anticipate under a Harris administration that this program would continue between USCIS, State Department and CBP. However, under a Trump administration, his second administration, we would anticipate that the program most likely would be shut down.  

Now just a caveat: The waiver is always available — the D-3 waiver is always available. It’s not that the waiver wouldn’t still be there for people to utilize, but it’s the length of time that it takes the Customs and Border Protection, or CBP, to actually adjudicate that waiver, and it takes several months. So most employers cannot wait for that employee to travel, stay abroad for seven months, and then come back. 

So we would argue that it would effectively quote-unquote shut down the program just because it would be unlikely for an employee to wait for that amount of time to get the D-3 waiver in order to pick up the nonimmigrant employment-based visa. So I don’t think we would see several people being able to utilize that expedited D-3 waiver process under any second Trump administration. 

Sanabria: Fragile and quasi immigration statuses are not limited to DACA, TPS and parole programs. Duehning addressed other programs that could be at risk depending upon the election outcome and the steps employers can take to help their foreign national workforce. 

Duehning: The H-4 program is for spouses of an H-1B holder. If you’re the spouse of somebody who’s in H-1B status, then you are considered to be in H-4 status, and normally that H-4 status did not allow work authorization. However, under the Obama administration, there were several requests that were made to the administration to do something about allowing spouses of H-1B workers to work. So the Obama administration put together notice-and-comment rulemaking, which then allowed those folks in that H-4 status to obtain work authorization while they remain in that H-4 status. 

So for a lot of these other quasi or fragile statuses, such as your H-4 EAD work authorization, we would anticipate, again, under a Harris administration that those programs would remain intact. There’s no indication that Vice President Harris has any inclination to want to end the H-4 work authorization program. We would anticipate them moving forward just as they do today. 

However, under a second Trump administration, we do know that his policies in the past were not friendly to those in the H-4 EAD category. And thus we would anticipate, as we said earlier, not only him trying to end TPS and DACA, but we would also anticipate him wanting to end the H-4 EAD work authorization program.  

A lot of times these temporary or these quasi or fragile statuses are difficult for an employer to know that they’ve got these folks working for them in the workforce. Since these folks do not require employer sponsorship, the employer may not know that they’re within their company. But if you do know, or if you’re able to get your folks to voluntarily tell you that they are in one of those fragile statuses, it’s really important to see if there’s anything that can be done to help them to get into a more long-term viable status. So, for example, would they be eligible to be put into the H-1B lottery? Or is it possible they’re eligible for a TN visa or some other nonimmigrant or even possibly an immigrant program? Especially if they have their master’s degree or a PhD, perhaps you could look at a NIW EB-2 type of situation. 

So we’re certainly asking employers to take a look at these folks and see if there’s anything else that can be done for that population to make sure that they don’t face having to leave the United States.  

Sanabria: Find more expert insights at our DACA and election resource centers on bal.com.  

Top Immigration News 

And now, the top U.S. and global immigration news. 

U.S. Citizenship and Immigration Services announced it has reached the H-2B cap for the first half of fiscal year 2025, receiving enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers. The agency is still accepting H-2B petitions exempt from the cap. 

USCIS also announced that Liberians who are covered by Deferred Enforced Departure may apply for employment authorization documents valid through June 30, 2026. 

In global news, the Canadian government announced additional measures to manage the volume of temporary resident arrivals, including a further reduction in the intake cap on international student study permits in 2025. 

The Australian government announced changes for the subclass 400 temporary work (short stay specialist) visa. Under the changes, visa applications with durations of six months are expected to be considered exceptional (though not discontinued), and officials will more closely scrutinize the visa applications where a worker must stay for more than three months in a 12-month period. 

Copyright 

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.