Immigration, the Midterm Elections, and DACA

Image of the US Capitol Building to show that Congress may decide the fate of DACA

Photo by Louis Velazquez on Unsplash

Immigrants are an important part of the workforce. “In 2017, there were 27.4 million foreign-born persons in the US labor force,” which is 17.1% of the total workforce. In the recent midterm election, according to the exit polls, immigration was the 2nd most important issue in the country with 23% of respondents believing that it was the most important issue in the country. This should come as no surprise given the number of different immigration issues that have happened during the Trump administration.

In recent weeks, two major immigration changes have occurred. On Monday, the Department of Justice petitioned the Supreme Court to determine whether President Trump can end the DACA program. The TN (NAFTA) visa survived unscathed in the new trade agreement between the US, Mexico and Canada. This visa had previously been on President Trump’s hit list.

The Supreme Court and DACA

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today the Ninth Circuit ruled  that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The sister program of DACA, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents program) was ended by the Supreme Court in 2016 in a 4-4 decision. It would have allowed the parents of certain US citizens and permanent residents to continue to work and continue to live in the US. Unlike DACA, it was never put into effect. DACA’s fate at the Supreme Court will be determined by the 2 most recent Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.

It is unclear what will happen with DACA. Trump has expressed support for continuing the program but wants Congress to act. With the new Democratic Congress this may be something that both parties are willing to work on. If they cannot agree, then eventually Supreme Court will likely review the issue and over 700,000 people will be affected by the decision.

Trump and Immigration Visas

The TN visa was saved in the trade agreement between the US, Mexico, and Canada even though Trump and high-ranking senators opposed the visa. The visa allows certain professionals from Canada and Mexico to work in the US. The fact that the visa was not changed is a surprise because the current administration has been aggressive in attempting to reduce the number of visas through its Buy American and Hire American executive order.

This executive order calls for changing the H-1B visa, which is given to workers in specialty occupations that require theoretical or technical expertise. Most workers on this visa are in the tech industry or work with technology. Reforming the H-1B program has support on both sides of the aisle with Democratic Senator Dick Durbin, Sherrod Brown, and other Democrats supporting a change to the program. Some form of comprehensive immigration reform between the Democratically controlled House, the Republican Senate, and President Trump may address both the H-1B visa and the DACA program. It is an area where there seems to be some agreement on both sides of the political spectrum and the issue is important enough to be addressed.


Immigration issues are constantly changing in this administration and will continue to evolve. Both Democrats and Republicans have called for reforming certain visas and continuing the DACA program. The administration, the new Democratically controlled House, and the Republican Senate will eventually need to resolve DACA and may enact a comprehensive immigration reform that fixes DACA, certain visas, and perhaps the permanent residency process. DACA and other immigration problems are quickly coming to a head and require Congress to act to set some clear parameters around the issues. Surprisingly, there does seem to be some agreement between the Democrats and Republicans on the issue. The only question is whether they can work together to find a solution.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.