Editor’s note: The following Q&A with immigration attorney Charles Kuck, held on the same day Joe Biden was inaugurated as U.S. president, was conducted as part of Kuck Baxter Immigration’s annual sponsorship of Global Atlanta.
Mr. Kuck, a staunch proponent of immigration reform and frequent critic of former President Donald Trump, said Georgia companies should be “ecstatic” that the new administration is bringing a cogent strategy to fixing a problem that has proven intractable in Washington’s polarized political environment.
The backdrop of the discussion: A U.S. district court ruled on Dec. 7 that the government must resume accepting applications for the Deferred Action on Childhood Arrivals (DACA) program and extend residency permissions and employment authorization for existing DACA beneficiaries.
Among other provisions, Mr. Biden’s sweeping immigration reform plan aims to grant permanent legal status and a path to citizenship to some 700,000 “Dreamers” through the DACA program, which shielded hundreds of thousands of immigrants from deportation since it was introduced in 2012 by the Obama Administration.
As a sponsor, Mr. Kuck often writes for Global Atlanta on immigration issues and has recently tackled topics from visa bans to foreign worker employment questions to work visas.
Read more at www.globalatlanta.com/category/immigration
Q&A begins below:
Global Atlanta: Please summarize recent rulings on DACA and their practical effects, especially considering the Biden Administration newly proposed immigration reform plan.
Mr. Kuck: The Trump Administration rode the anti-immigration train to the White House, and one of their key attacks was going to be DACA. But they couldn’t correctly administratively end the program. The ruling on Dec. 7 [by the U.S. Southern District Court in Texas] restores completely DACA as it was written by President Obama and his Secretary of Homeland Security in 2012; it’s the same DACA from nine years ago.
The problem with that, for kids who weren’t eligible for the three years that the Trump administration was not allowing new applicants, is that it’s a lot harder to apply for DACA today — not because the criteria have changed, but because it requires documents from 14 years ago. Most who are applying today came into the country as literal babies. So, they’re relying on the records their parents might or might not have of their entry.
That is why one of the things we hope President Biden’s order will do is to either move the date of entry requirement forward from 2007 or lighten the requirements of proof for the program. Because unless it changes, DACA is becoming harder today for these youngest qualified children than it was for anybody that applied previously.
Global Atlanta: How much of a relief should the DACA approval be to employers who have hired so-called ‘Dreamers’, especially here in Georgia?
Mr. Kuck: Employers are going to say, “Hallelujah!” The first DACA recipients got their work cards in 2012, nine years ago, when they were maybe 30 years old. They could be over 40 today. These are people that are key parts of the workforce; they’re not just students anymore. These are people that have spent the vast majority of their lives here.
They’re all going to get green cards eventually. It’s going to happen. The longer we delay it, we’re just hurting ourselves as well as these kids and young adults.
Global Atlanta: What about Georgia universities that have opened their doors to undocumented students? How will the restoration of DACA affect them?
Mr. Kuck: Universities should be ecstatically happy too. Georgia has a problem — our universities are now offering in-state tuition to students from neighboring states because we don’t have enough kids going to our colleges to keep people employed in certain roles. It makes no sense.
Our Board of Regents has acted inappropriately, in my opinion, in denying in-state tuition to these young men and women. Now is the time to step forward and do the right thing through our Georgia General Assembly: authorize these kids who want to stay in their homes, who are otherwise Georgia residents and whose siblings have citizenship and are going to Georgia colleges and universities. Let’s get these young men and women in those universities, too. It’s what’s best for Georgia, and virtually everybody agrees with that.
If we are the most business-friendly state, why are we behind places like Tennessee, who give in-state tuition to DACA kids?
Global Atlanta: Are there substantive, legal ways Georgia companies can support their DACA employees or others eligible for DACA?
Mr. Kuck: The U.S. Chamber of Commerce has already come out to support a pathway forward to green card status for DACA recipients. We need to see the Georgia Chamber of Commerce putting pressure on the state legislature. Not just the Hispanic chambers or the “ethnic” chambers of commerce. The state’s main business chamber needs to come out and say, “These kids need in-state tuition.”
Global Atlanta: What other ways can Georgia’s business community support immigration reform locally?
Mr. Kuck: We also need the Georgia Chamber of Commerce to say, “People that are undocumented should get driving certificates.” This is not rewarding people for illegal behavior. They are now Georgians; on average, people that are undocumented have been in Georgia for 15 to 20 years. It’s not like people aren’t driving anyway, so we might as well get them insurance. [See more from the Georgia Chamber about its Global Talent Initiative]
And now that law enforcement officers in Gwinnett and Cobb counties are no longer detaining non-Caucasian people and giving them over to U.S. Immigration and Customs Enforcement (ICE), what’s the purpose of denying them driving certificates?
[pullquote]If we are the most business-friendly state, why are we behind places like Tennessee, who give in-state tuition to DACA kids?[/pullquote]
So, let’s just fix this problem and move in a forward-looking way instead of trying to litigate the problems of the last 30 years on immigration.
I’m confident that the federal government will move forward on the U.S. Citizenship Act and fix this problem for everybody. But we have our state legislative session that will likely end before the federal government gets to this issue.
So, let’s fix it now. Let’s show Georgia and the world who we are, that we welcome everybody to our state.
Global Atlanta: What does the recent DACA ruling mean for those who had been holding their breath, fearing deportation? Is this real relief, and does it provide a modicum of certainty that will help them securely pursue careers and education goals?
Mr. Kuck: What’s interesting about this is that DACA was always a temporary program. The president can’t create a new program; only Congress can fix this. So, what DACA applicants and recipients are doing is trading their information for a work permit for four years. In the Biden U.S. Citizenship Act, there isn’t a clause for automatic permanent residence for all DACA recipients.
But, one of the things that has changed dramatically since December is that the number of people coming to see me, who had never applied for DACA in the first place, has skyrocketed.
When President Obama announced DACA in 2012, he suggested that up to 1.8 million people were eligible. In reality, the most that ever applied was just under a million. So technically, there were probably at least another 800,000 people who just didn’t trust the government or didn’t have the proof or didn’t understand the program enough to come forward.
I am seeing a lot of those people today, including a woman who came here when she was one year old 37 years ago, who speaks English with a deep Southern accent, but is undocumented. She is completely qualified for DACA but simply was too afraid to apply; she’s finally coming forward to do so.
Also, keep in mind that they’re talking about over 600,000 people [who are eligible for DACA]. What happened to the other 370,000, who, at least at one time, had DACA? The reality is most of them got green cards. Although the DACA program doesn’t make you legal in the context of a status, it does give you the right to travel legally, and, if you happen to be married to a citizen, you can get a green card. Or if you got your DACA before you were 18 — and that’s a lot of people today, nine years later, who have college degrees — your employer can sponsor you for a green card.
So, a lot of people have used DACA as a stepping stone forward. And so, the overall number of DACA recipients is lower than it’s ever been. That’s a good thing. It doesn’t mean people have given up on DACA; it means they’ve actually used it as a stepping stone. And that’s vitally important.
Global Atlanta: These new “Dreamers” who are now eligible to apply for DACA under the ruling — what would be the best way for them to go about applying?
Mr. Kuck: The fact that Biden is pushing a greater overall reform will mean Dreamers will need to contact a good lawyer to get their application going. Because, again, this is a harder application than ever because the documentation they must have is so old.
I’ve had a lot of clients struggle with, for example, proving that they were physically here on June 15, 2007 [the current eligible entry date for DACA], when they are only 18 years old now. Maybe their mother has a picture of them taken in a place that clearly looks like Georgia, and there is a date on it. That’s the kind of evidence that we’re having to rely on to meet these standards. It’s hard.
So, I would say, start getting your documents together. Work with your parents or your guardians or your grandparents to get these records, so you can apply. And then let’s hope that President Biden actually moves forward with a strengthening of the program and an amplification of the program, because so many kids came in as children up until 2017.
The immigration community has been calling for moving forward the date of eligible entry to 2017. Immigration advocates have been working hand in glove with the new administration to show them what needs to change to make DACA effective.
Global Atlanta: There is still a pending legal challenge to DACA in the U.S. Southern District Court in Texas. How could a ruling that DACA is unlawful hamstring the Biden administration’s ability to extend the status over the next four years?
Mr. Kuck: I’m not worried about Judge Hanen’s decision. Because, frankly, that’s why Biden is re-issuing an order, because, then, that case goes away. That case is based upon the old original 2012 order; it’s gone now. Now, there’ll be a new executive order that I can promise you dots every i and crosses every t. And that’s why I’m not worried at all about the district court case.
Global Atlanta: Do you see any prospect for substantive immigration reform in Congress?
Mr. Kuck: The Muslim ban [a Trump order that prevented the entry of citizens from certain Muslim-predominant countries] is already gone; Biden signed the order already. This bill [the U.S. Citizenship Act of 2021] fixes legal immigration and family-based immigration. It focuses on smart border enforcement. It focuses on the push factors from Central America that cause people to come here. It is finally a realistic approach to fixing the past so that we can move into the future.
The reason, for example, that there are 7 million Mexicans in the United States that came here between 1990 and 2004 is because of the demographics, politics and economics in Mexico at the time. That’s not the Mexico of today; today, we have a net outflow of Mexicans. The idea that more immigrants will just come in and replace them is no longer demographically the case.
And that’s actually a problem for us. Because once we do give agricultural workers green cards, and DACA kids get green cards and Temporary Protected Status (TPS) recipients get green cards, they may say they don’t want to work in agriculture anymore. Well, we’re either going to mechanize those jobs, or we’re going to need more workers. So, this bill looks at that — the ability to bring in future workers to do that job and have enough visas for it.
We’re going to know more about the U.S. Citizenship Act in a couple weeks, and we’ll have a lot more information that we can share with people.
Charles H. Kuck is an adjunct law professor at Emory University and managing partner at Kuck Baxter Immigration LLC in Atlanta, which is a sponsor of Global Atlanta’s immigration coverage. Contact him at ckuck@immigration.net or (404) 816-8611.