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JANUARY 20, 2017 INDIA ABROAD 41 IMMIGRATION
By Allen E. Kaye
The presidential election has jolted campuses with speculation and concern about undocumented community
members and other issues impacting international populations. The roughly 750,000 young people who have
been approved for the Obama administration's Deferred
Action for Childhood Arrivals (DACA) program have been
the subject of particular attention. More broadly there
have been some calls to create “sanctuary campuses."
Statements and petitions have been circulated by college
and university presidents, student groups, and policy-makers. This Issue Brief is offered as a “current moment"
aid in framing discussion and assessment by campus
leaders, in the hope that it provides information that may
assist in situational response, campus policy review, and
engagement on the issues addressed here.
Why is this complicated and the future uncertain?
As explained below, DACA is not a law or regulation, it
is simply an executive order. It does not confer legal status or a pathway to citizenship, it is only relevant to a
small portion of undocumented individuals in the United
States, and it can be modified or ended at any time. Many
individuals with DACA status are college or university
students. Much of the pre-election campaign discussion
regarding immigration enforcement was not focused on
this group. In addition, it is unlikely that all of an institu-tion's faculty and staff who are concerned about its DACA
students know exactly who these students are. Similarly,
it is unlikely that the balance of a campus's undocumented population-students and others—is known.
There has never been large-scale immigration enforcement directed at undocumented individuals at American
colleges and universities. It is far from clear whether the
new administration's immigration policies and enforcement practices will target, include, or exclude current
DACA students and other undocumented members of our
nation's campus communities.
Nor is it known what form such actions might take. How
long it would take to design, resource, organizes, and implement governmental policy changes or enforcement actions are anyone's guess. The likelihood of success of
judicial challenges to such policies and enforcement actions is speculative as well, even if the certainty and vigor
of such challenges are not. In short, it is inevitable that
there will be more questions than definitive answers for
some time, but it is prudent to anticipate that the new administration may usher in changes in current laws, regulations, and policies.
What is the big picture?
Millions of undocumented immigrants have entered
the United States during the last quarter century. Many
arrived as infants or young children; they have grown up
in the United States but without legal status. Added to
their ranks are those who came and overstayed visas,
who had poor immigration representation, or whose parents did not follow through on immigration applications.
In 2003, the Immigration and Naturalization Service
(INS) ceased to exist, and its functions were transferred
to three new entities under the Department of Homeland
Security (DHS): U.S. Citizenship and Immigration Services (USCIS); U.S. Immigration and Customs Enforcement
(ICE); and U.S. Customs and Border Protection (CBP). ICE
is largely responsible for enforcing immigration laws
within U.S. borders.
ICE's officers and agents currently conduct enforcement actions consistent with a DHS November 2014
memorandum that prioritizes threats to national security,
border security, and public safety. ICE's own Sensitive Lo-
cations Policy provides that enforcement actions should
be avoided at sensitive locations, which include “post-
secondary schools up to and including colleges and uni-
versities, and other institutions of learning such as
vocational or trade schools." However, these policies can
be modified or rescinded at will by the new administra-
What is DACA?
DACA, the Obama administration's Deferred Action for
Childhood Arrivals policy, provides administrative relief
from deportation for specific individuals who apply for
and receive DACA status. It was announced June 15, 2012.
As noted, DACA is not a law, or even a regulation. It does
not grant a legal status, nor does it offer a pathway to per-
manent residency or citizenship. It simply reflects the
Obama administration’s priorities regarding deporta-
With roughly 11 million undocumented immigrants in
the U.S., the administration chose to put those with crim-
inal records or outstanding deportation orders at the top
of the list for removal, and those with DACA status at the
bottom. Many hope that DACA can be a bridge to compre-
hensive immigration reform by Congress.
DACA reflects the USCIS’s exercise of its prosecutorial
discretion to permit approved individuals to stay for two
years at a time without fear of deportation. Those granted
DACA status also may receive a Social Security number
and two-year employment authorization documents.
DACA status may be given to undocumented young
people who had no lawful status on June 15, 2012. To
qualify, applicants must:
have been physically present in the United States on
June 15, 2012;
have been under the age of 31 as of June 15, 2012;
have come to the United States before reaching their
have continuously resided in the United States since
June 15, 2007;
currently be in school, or have graduated or obtained a
certificate of completion from high school, or have ob-
tained a general education development (GED) certifi-
cate, or have been honorably discharged from the Coast
Guard or the Armed Forces of the United States; and
have not been convicted of a felony, significant misde-
meanor, or three or more other misdemeanors, and do
not otherwise pose a threat to national security or public
(To be continued)
By Allen E. Kaye
Continuing from last week answers to questions about
changes in the National Visa Center’s Affidavit of Support.
Household size includes dependents and other immigrants being sponsored. The Form I864 asks for the financial sponsor’s household size. The sponsor must include
in their household the principal visa applicant and any
derivative applicants who plan to immigrate within six
months of the petition. The sponsor also must include his
or her spouse; unmarried children under 21 (unless these
children have reached majority under the law of their
place of domicile); anyone else claimed as a dependent
on the sponsor’s tax return; and other people in the
United States whom the sponsor is supporting on a different I-864. A sponsor does not have to include people
on other I-864s who have not yet immigrated to the
If a sponsor’s income does not meet the Poverty Guide-
lines, he or she can submit the value of assets to make up
the difference. Financial sponsors can only include assets
that are convertible into cash within one year and with-
out considerable hardship or financial loss to the owner.
Sponsors may include the value of their home. They may
not include the value of their automobile, unless they can
show they have more than one and the primary automo-
bile is not included as an asset. The intending immigrant
can include his or her assets in this calculation but needs
to file a Form I864A to do so. If you submit evidence of
assets to NVC, they will be included in your case file and
only reviewed during your visa interview overseas. NVC
will not review these documents.
Financial sponsors must be domiciled in the United
States. Domicile is where a person has his or her principal
“residence,” with the intention to maintain that residence
for the foreseeable future. If a financial sponsor has been
living abroad, he or she can reestablish domicile in the
United States but will need to provide proof that they
have done so before any income can be considered in
support of the intending immigrant’s visa application.
For more information about domicile, visit our fre-
quently asked questions online.
Allen E Kaye, a Phi Beta Kappa graduate of Queens Col-
lege of the City of New York, Columbia Law School (JD)
and New York University Law School (LLM), is the Pres-
ident of the Law Offices of Allen E Kaye and Associates
and Of Counsel to Pollack, Pollack, Isaac and DeCicco.
He is a past National President of the American Immi-
gration Lawyers Association and Co-Chair of the Immi-
gration Committee of the Queens County Bar
Association. He has been selected by Martindale-
Hubbell as a 2014 “Top Rated Lawyer” in the practice of
Labor and Employment (for Immigration) and the 2017
Edition of The Best Lawyers in America.
Questions for publication may be sent to Kaye at 225
Broadway, Suite 307,New York, NY 10007, or by email at
AllenEKaye5858@gmail.com or email@example.com
Immigration: A Post-Election Q&A
Ink Signatures No Longer Required
on Affidavits of Support