Is the DACA Program Illegal? How Your Children Could Be Affected if You're on an H-1B

Nearly everyone you talk to will agree that it’s the job of adults to protect children, especially when they can’t speak up for themselves. This was the core goal behind the Obama-era program known as DACA, Deferred Action for Childhood Arrivals. Under DACA, hundreds of thousands of children were protected from deportation. But federal courts say this program is illegal. How will this affect you and your children when they come with you to the US under an H-1B visa? Read on to find out.

Background on DACA

The Deferred Action for Childhood Arrivals program, better known as DACA, was created on June 15, 2012, by the previous Secretary of Homeland Security under ex-President Obama, Janet Napolitano. This act was designed to protect certain young individuals who were brought to the US illegally when they were children. Without this protection, these people would face deportation from possibly the only home they knew simply because the adults in their lives moved them there illegally.

Under DACA, these individuals would have temporary relief (deferred action) from deportation and could receive work authorization. But, although the Biden Administration has attempted to preserve this program, Judge Andrew Hanen of the US District Court for the Southern District of Texas declared these efforts illegal. Under Hanen’s ruling, those already in the program would be temporarily grandfathered in, but no new applicants would be accepted.

Is DACA Unlawful?

The Biden Administration is, by their accounts, disappointed in this ruling. For years, DACA recipients have worked and lived in the US without fear of a forced return to an unknown country, even if it was their birthplace. But although the federal court judge agrees that it may not be in the best interests of the children, his ruling upholds the Constitution.

He’s not the only one who feels this way. DACA entered the federal court system after seven states sued to end the program, citing its unlawful implementation that took advantage of the White House’s executive authority. The states argue that the presence of these now-adults causes financial losses to the American economy. Judge Hanen’s ruling in 2021 against DACA was based on the fact that the program had not been created lawfully via the formal agency rulemaking process.

This ruling led to counter-measured by the Biden Administration to step in and protect the DACA program and its many beneficiaries through a final codifying rule. However, the most recent ruling continues to uphold the 2021 decision. It’s likely that the Biden Administration will continue fighting the ruling. If it continues along this path, it will likely end up at the Supreme Court.

In the meantime, DACA beneficiaries must attempt to find other ways to protect themselves and stay in the country lawfully or return to their country of origin and enter the US legally.

What’s Next?

If you have children who will age out of the system while you’re here on your H-1B visa, talk to a legal professional like Visa2US to find out what your options are. There is legislation in process to protect your situation, but in the meantime, the conflict behind DACA ensures no one new can enter this program.

At Visa2US, we’re here to help answer your questions and make the H-1B process easier, whether you are initially applying or trying to keep your visa. Our legal professionals are available 24/7.

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H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

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