Five Practical Things EVERYONE Should Know About Trump’s DACA Termination

President Donald J. Trump . (Official White House Photo by D. Myles Cullen)

I was tempted to put this entire title in capital letters, as hysterical as that might look. But for thousands of people in the United States today, the recently announced ending of the Deferred Action for Childhood Arrivals program (DACA) feels like a true emergency.

And indeed, the decision will eventually mean that huge numbers of undocumented young people, students, and workers—who came forward, were vetted, and applied for a temporary work permit—may (unless Congress acts) see that grant stripped from them. And, thousands of schools and employers will lose the benefit of their work and other contributions.

But in other ways, the current situation is not quite as dire as it sounds—or doesn’t need to be, with the proper actions taken going forward.

So if you are a DACA holder or know someone who is (you might be surprised!), or you are an employer, here are some key things to understand and share:

  1. No one is being deported right away. This is a phaseout. DACA holders still have a legal basis upon which to remain in the United States. Immigration attorneys and advocates are keeping watch around the country for any official action taken to the contrary. USCIS has not changed its policies regarding sharing DACA applicants’ personal information with ICE for followup enforcement; and will do so only in cases that don’t involve serious crimes or threats to public safety. Despite a few widely reported cases, enforcement actions against DACA holders remain rare.
  2. People who hold valid DACA work permits can use them up through the day they expire. The new policy specifically says that current recipients will not have their status revoked unless some separate reason arises (such as a criminal conviction). So if, for example, your DACA work permit expires on March 6, 2018, you can work up to and including the entire day of March 6, 2018.
  3. An important renewal opportunity exists for the next few weeks. Some, but not all current DACA holders can apply to renew their status. That renewal will be good for an entire two years, even as the rest of the program gets phased out. The only people who can renew are those whose DACA grant expires between September 5, 2017 and March 5, 2018 (assuming they meet the other criteria). Unfortunately, people whose DACA grant had already expired before September 5 cannot renew; and no one can apply for a first-time DACA grant going forward.
  4. The renewal opportunity depends on getting an application into USCIS’s hands by October 5, 2017. Pick a trusted mail or delivery service, because it doesn’t matter when your renewal application is postmarked. It has to be received and “accepted” by USCIS by October 5. There’s some question about what “accepted” means. It certainly doesn’t mean “approved.” But it might mean that if USCIS looks at it and says, “This isn’t complete, we can’t let it in the door,” you will have missed out. (Normal USCIS practice would, however, be to issue a Request for Evidence,” so don’t panic—but do triple check your renewal application and fee before mailing it.)
  5. Employers cannot ask an employee whether he or she has DACA, nor take action (such as firing or termination) based on knowing that someone currently has DACA. Even well-meaning employers should beware of crossing this line. The employer may simplify notify an employee that he or she will need to present an updated work permit (EAD) on the date of its expiration.

As tense as the situation is, a good deal of help is becoming available to people who currently have DACA, or have had it in the past. Large employers are looking into providing legal help; and some DACA holders may have even become eligible for another status, such as permanent residence.

Also, community organizations are mobilizing to provide free or low-cost help. Start calling around—but do so soon, if you’re looking at renewal.

And as always, beware of scammers who take advantage of a tough situation! Check lawyers’ credentials, and avoid mere “immigration consultants” and “notarios.”

Texas Federal Court Invalidates Overtime Rule

Late last week, a Texas federal court judge struck down the Obama-era overtime rule that would have extended overtime pay to millions of workers.

In 2016, the Department of Labor (DOL) passed a final rule to increase the minimum salary required for employees to qualify as exempt from receiving overtime. By raising the annual salary requirement from $23,660 to $47,476, the DOL estimated that 4.2 million employees would become eligible to receive overtime pay. However, several states and business groups filed legal challenges in court to block the rule from taking effect. In November of 2016, a federal court judge in Texas delayed the rule from taking effect until it could be reviewed and decided upon.

Last week, the same judge ruled that the DOL overstepped its legal authority by raising the salary threshold so high. To be exempt from overtime, an employee must not only earn the minimum salary, he or she must also perform certain types of work—for example, executive, administrative, or professional work. (To learn more, see our article on the white-collar exemptions.) The judge held that the DOL’s rule placed too much importance on a worker’s salary rather than his or her job duties, effectively weeding out millions of workers based on salary alone.

Signs point to the DOL considering a new rule that would create a minimum salary that is higher than the current threshold of $23,660, but lower than $47,476. The Department of Labor has already issued a request for information so that it can seek input from the public on the matter. This is typically the first step in the rulemaking process. While it’s unclear what the new threshold will be, it will likely be a much more modest increase. Earlier this year, Labor Secretary Alexander Acosta stated that he would support a salary threshold around $33,000.

Should We Believe Assurances That ICE Won’t Arrest Undocumented Immigrants Fleeing Hurricane Harvey?

Commentators have been understandably worried for non-citizens battling flooding and other problems caused by Hurricane Harvey, which hit the coast of Texas on August 25, 2017.

Not only is their basic safety at risk, but there’s the matter of the new immigration enforcement priorities under the Trump administration.

This really means no priorities at all, but an environment in which anyone who encounters Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), regardless of their close ties to the U.S. and past agreements that they were law-abiding and not a priority for deportation (including with DACA grants), are fair game for deportation.

Non-citizens have been arrested while at their most vulnerable: for example, when appearing in court to testify to domestic violence, when leaving hypothermia shelters, and when attending check-in interviews at ICE offices.

But now, in response to these concerns, FEMA has issued a statement assuring the public that, “Routine non-criminal immigration enforcement operations will not be conducted at evacuation sites, or assistance centers such as shelters or food banks.”

That’s welcome news, at least compared with other possible things the statement could have said. But it’s also not entirely reassuring, because it leaves open the door to “criminal” enforcement operations.

As anyone who’s following the new enforcement environment knows, Trump had originally assured the public that ICE priorities would focus on criminals or “bad hombres,” then proceeded to define anyone who had crossed the U.S. border illegally as a criminal.

In this situation, the climate of fear that’s been created could end up costing human lives. And it also makes it far to easy for scammers to prey on the immigrant community; including the recently reported fake ICE agents that have been banging on doors and ordering people to evacuate (presumably in order to steal their stuff).

If Friendly Neighbors Are So Important, Why Not Ask About Them When Buying?

An impressive 50% of prospective homebuyers say their top priority when it comes to neighborhood features is having friendly neighbors, says a recent Berkshire Hathaway HomeServices Homeowner Sentiment Survey.

This feature ranked higher for survey respondents than school district (at 41%), financial considerations (39%), and perceived investment value (37%).

The results reflect well on the common sense of today’s homebuyers. After all, a difficult or hostile neighbor can impact your personal financial considerations (for instance, if you get into a dispute over something like who pays for a damaged fence, and end up bringing or facing a lawsuit).

And a difficult neighbor can impact your home’s investment value, if a major issue makes the house harder to sell (“Pay no attention to that 12-foot spite fence, we’re suing the neighbor to take it down, tempted though we are to take a chainsaw to it.”)

At least neighbor problems don’t typically bring down an entire school district. But they can make life miserable, in the very place where you want to feel safe and relaxed.

But the question remains, why do so few people ask probing questions about a house’s neighbors before they buy? I can only report anecdotally, but as someone who visits open houses regularly, has sold a house that brought in multiple offers, and regularly talks to people about real estate, it seems that the matter of neighbor relations is often left for a post-closing surprise.

Real estate agents certainly know how important the neighbor issue is. I recently visited an open house at the property next to mine, introduced myself and was told by the agent, “Oh good! I can tell people I’ve met the neighbor!” (I guess the subtext was that I looked normal, phew.)

You now know why we included neighbor issues on the “Questions for Seller” worksheet that’s included in Nolo’s Essential Guide to Buying Your First Home. You can certainly get specific in your questioning, too, as in, “We notice the house across the street has five motorcycles parked on the front lawn. Has that led to issues with noise or anything?”

And there’s no need to stop with questions to the home seller. Try asking local friends for information, particularly those who follow any neighborhood listservs. They might tell you who the local “trolls” are, and know about other neighbor issues, disputes, or subjects of tension.

Also, as you go in and out of open houses, ask people on the street how they like living there, and how friendly the neighborhood generally. If you’re lucky enough to spot one of your prospective new home’s neighbors outdoors, perhaps weeding or walking the dog, definitely engage that person in conversation. You may be surprised at what you find out.

California’s New “Open Container” Law Applies to Driving With Marijuana in the Car

California has had medical marijuana since 1996. And in November 2016, California voters approved Proposition 64, which legalized recreational marijuana use in the state. (Read the specifics of California’s marijuana laws.) The result was a patchwork of laws that—while achieving the primary purposes—left the public with safety concerns and law enforcement with questions about enforcement.

In an effort to address the public safety and enforcement issues, the Legislature passed S.B. 94 (the “Medicinal and Adult-Use Cannabis Regulation and Safety Act”). Governor Jerry Brown signed S.B. 94 into law on June 27, 2017.

One issue tackled by S.B. 94 is how to deal with motorists who are in possession of marijuana while driving. Essentially, the legislation amends the existing alcohol “closed container” law—California Vehicle Code section 23222 (2017)—to include marijuana. The new law prohibits driving while in possession of any “receptacle” containing cannabis that has been “opened or has a seal broken, or loose cannabis flower not in a container.” The law, however, doesn’t restrict open containers of marijuana stored in the trunk of the car. And medical marijuana patients can drive while in possession of marijuana if carrying a valid medical marijuana card or physician’s recommendation and the container is either “sealed, resealed, or closed.”

A violation of the marijuana closed container law is an infraction and carries a maximum $100 fine.

(Find out about how marijuana legalization has affected California’s DUI laws.)