August 14th USCIS Update on DACA (Deferred Action for Childhood Arrivals)

By: Susan Schreiber, Debbie Smith and Charles Wheeler

On August 14, 2012, USCIS issued the DACA "Deferred Action for Childhood Arrivals" application form, posted a new FAQ, and held a stakeholder call that provided additional information on DACA program. The FAQ and stakeholder call, led by USCIS Director Alejandro Mayorkas, reviewed basic eligibility requirements for DACA as well as the education requirements, disclosure provisions and filing procedure.

This update will discuss the information released on August 14th and review details of the program previously reported in CLINIC's August 6th article on DACA. The DACA application form, Form I-821D, is available here and the FAQ is posted here. 

Additional resources on DACA may be found on the CLINIC website and include:

• DACA Workshop Toolkit (working document)
• Updated Materials  on CLINIC's DACA website including previous CLINIC webinars
• August 23^rd Webinar on Capacity Building for DACA and DACA Updates (register here)
  

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Information Released August 14th

Education Eligibility, "In School":

• Enrollment in the following programs complies with the "in school" eligibility requirement:
  • Enrollment in elementary, junior high, middle school, high school, or secondary school, whether public or private
  • Enrollment in an education, literacy, career training or vocational training program "designed to lead to placement in postsecondary education, job training, or employment" where the individual is working toward placement in one of these areas.
    • Programs include ESL programs if ESL is a prerequisite for placement in postsecondary education, job training or employment.
  • Education, literacy or career training programs may be State or Federally funded programs
  • Programs not funded by State or Federal funds may also qualify if:
    • Administered by "providers of demonstrated effectiveness"
    • The burden is on the DACA applicant to prove the program's demonstrated effectiveness
    • Examples of "providers of effectiveness" are community colleges and other institutions of higher learning as well as "certain community-based organizations"
    • USCIS will evaluate the "demonstrated effectiveness" of a program by:
    • The duration of the program's existence;
    • The program's success in helping students obtain a high school diploma or its equivalent, in passing a GED or other state exam, or in placing students in "postsecondary education, job training, or employment; and other indicators of the program's overall quality"
  • Enrollment in a program in which students seek a high school diploma or its "recognized equivalent under State law". The "recognized equivalent under State law" may be a certificate of completion, a certificate of attendance, or alternate award.
  • Enrollment in an education program that assists students in passing a GED (General Education Development) exam or other equivalent State-authorized exam.
• Documentation of "in school" includes the following types of evidence that show the name of school or program, date of enrollment, current educational or grade level, if relevant:
  • Acceptance letters
  • School registration cards (school ID cards)
  • School or program letters
  • Transcripts
  • Report cards
  • Progress reports, and other forms of documentation
• Evidence of graduation from high school:
  • High school diploma from public or private school or secondary school
  • High school diploma equivalent, recognized by State law, such as GED certificate, certificate of completion, certificate of attendance or an alternate award, and other forms of documentation
• Documents demonstrating obtained GED:
  • Evidence that passed GED exam or other State-recognized exam
• Documents showing enrollment in literacy or career training program:
  • Evidence that program is designed to lead to placement in postsecondary education, job training, or employment
  • Evidence that ESL program is connected to placement in postsecondary education, job training or employment and that program is one "of demonstrated effectiveness"
• Circumstantial evidence of education eligibility requirements will not be accepted.

Direct evidence required to satisfy education eligibility requirements: "In school" and DACA renewal eligibility:

• Renewal if demonstrate graduation from school in which enrolled or made "substantial measurable progress" toward graduation from high school or school in which were enrolled
• Renewal if demonstrate obtained a high school diploma, recognized equivalent, GED or other equivalent State-authorized exam
• Renewal if demonstrate enrolled in postsecondary education, obtained employment for which were trained, or have made "substantial, measurable progress toward completing the program"

Filing Procedure:

• Applicants use new Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to apply for deferred action, along with Form I-765, Application for Employment Authorization; an I-765WS Worksheet, and a $465 application fee. An application submission will be rejected if it does not include all required forms and fees
• The I-821D form consists of six pages. In the first four pages of the form, the applicant must provide biographic information and information about: prior removal proceedings; education and military service; entry and departure history; arrival and residence history; and history related to crimes, national security and public safety. Page 5 of the form is completed only if the form is prepared by a person other than the applicant, and/or if an interpreter was used in preparing the form. According to the directions on page 5, attorneys and representatives who are form preparers must submit a G-28 form along with the application for deferred action. Advocacy efforts are being made to have CIS exempt services provided in group application workshops from this requirement. Page 6 of the form is for providing additional information that did fit in the space provided in the first pages of the form.
• The I-821D instructions accompanying the form consist of nine pages. The instructions include a list of documents to submit to satisfy each eligibility requirement. The final page of the instructions has a checklist for the applicant to use to determine if his/her application is complete before submission.
• The new I-765WS worksheet is used to establish economic necessity to work, a requirement for employment authorization eligibility in the deferred action category. The form lists a new (c)(33) category for employment authorization eligibility for Deferred Action for Childhood Arrivals
• Applications are submitted to one of three different lockbox addresses depending on where the applicant resides. Filing location information is not included in the I-821D Form Instructions but can be found on the CIS website forms page by clicking on the link to Form I-821D.  
• CIS will review submitted applications for completeness, including submission of the required fee, forms and initial evidence. If the request is complete, CIS will send a receipt notice to the applicant and then an appointment notice for biometric services. Applicants who would like to receive email and/or text message notifications from CIS confirming form acceptance may complete a Form G-1145, E-Notification of Application/Petition Acceptance.

Disclosure to ICE if Case Denied: 

• Neither DACA applicants nor their family members or guardians will be referred to ICE for enforcement purposes if the DACA case is denied. However, information obtained through a DACA application may be shared with ICE, CBP, national security and law enforcement agencies for purposes other than removal.

Disclosure to ICE of Family Members or Guardians if DACA Applicant Receives NTA:

• Information related to family members or guardians obtained through the DACA application will not be referred to ICE for enforcement purposes. However, this information may be shared with ICE, CBP, national security and law enforcement agencies for purposes other than removal.

Information from Stakeholder Call Question and Answer 

• CBP has been instructed through Secretary Napolitano's guidelines that DACA eligible individuals who are apprehended will be released following a background check with a notice about DACA without service of NTA
• Expunged convictions will be evaluated on a case-by-case basis, whether the expungement is for a felony, significant misdemeanor, or other violation.
• DACA applicants with a final order should apply for DACA with CIS. Once DACA is granted, applicants should approach Office of Chief Counsel to evaluate whether a motion to reopen removal proceedings is appropriate.
• Juvenile dispositions will also be reviewed on a case-by-case basis. The juvenile disposition will be considered in the context of public safety -- therefore the severity of the offense, how recent the offense occurred, and other issues will be evaluated.
• Federal databases are used in evaluating biometrics and names of applicants 

Deferred Action Basics (update of August 6, 2012 article on DACA)

• Deferred action is a temporary immigration status granted by the USCIS based on a variety of factors to those who typically lack other means of obtaining the right to remain in the United States
• DACA, announced on June 15th, was initially only open to those in removal proceedings while those not in proceedings became eligible to apply as of August 15th
• Those who are granted DACA receive two years of protection against removal or the initiation of removal proceedings and two years of employment authorization
• The status is subject to renewal after two years (including renewal for those who turn 31 while in deferred action status), unless the program is terminated, but it will not lead to a path to permanent residency
• Adjudications are based on a case-by-case, discretionary evaluation by USCIS and may be terminated at any time
• Derivative family members (e.g., spouse and children) do not qualify for benefits unless they independently satisfy the eligibility requirements
• It is possible that those who do not meet the eligibility requirements for the "Deferred Action for Childhood Arrivals" program may nevertheless qualify for deferred action based on humanitarian factors under the Service's preexisting program. Those who do not qualify or were denied and who are in proceedings or subject to a removal order may request that ICE exercise prosecutorial discretion under its June 2011 memorandum.

Deferred Action Details   

• Deferred action tolls the running of any unlawful presence for those who apply for and are granted the status, but does not excuse any unlawful presence accrued previously. Those who apply after turning 18 will continue to accrue unlawful presence while their application is pending; those who apply while under 18 will not accrue unlawful presence during this process.

• Deferred action is not considered "lawful immigration status." This may be significant in a number of ways. For example, those in the family preference categories who were inspected and admitted may apply for adjustment of status under INA § 245(a) when their priority date is current, but not if they were ever in "unlawful immigration status."
• After being granted deferred action, the applicant may be considered for employment authorization upon a showing of "economic necessity" (unlike TPS where the EAD may be granted while the TPS application is pending)

Eligibility Basics

• Applicants must have been under the age of 31 on June 15, 2012
• Applicants must have entered the United States before the age of 16 and before June 15, 2007
• Applicants not in removal proceedings must be at least 15 years of age on the date of application (not necessarily on June 15, 2012)
• Applicants must have continuously resided in the United States for at least five years preceding June 15, 2012 (or must have been continuously residing since June 15, 2007)
• Applicants must have been physically present in the United States on June 15, 2012, and must be physically present here when applying for deferred action
• On the date of application (not necessarily on June 15, 2012), applicants must be in school, have graduated from or completed high school, have obtained a GED, or have been honorably discharged from the Coast Guard or U.S. Armed Forces. Enrollment in other educational programs may constitute "in school" (see above)
• The grounds of inadmissibility do not apply, but may be considered in the exercise of discretion
• Applicants must not have been convicted of a felony, a significant misdemeanor, three or more minor misdemeanors, or otherwise pose a threat to national security or public safety
• The program is open to those who are in removal proceedings, who are not in removal proceedings, as well as those who have an order of removal or voluntary departure

Eligibility Details

• To satisfy the "continuously residing" requirement, applicants may have taken "brief, casual, and innocent" departures during the five-year period before June 15, 2012 or during the two-month period between June 15 and August 15, 2012.  To qualify as brief, casual, and innocent, the absence must have been: (1) short, (2) reasonably calculated to accomplish the trip's purpose, (3) voluntary and not in response to a removal order or voluntary departure order from an immigration judge or administrative grant of voluntary departure in lieu of being placed in proceedings, and (4) the purpose must have been lawful.

• Applicants must not have traveled outside the United States after August 15, 2012
• Applicants must have entered without inspection or, if they entered with inspection, their immigration status must have expired as of June 15, 2012
• Applicants must not have been in any lawful immigration status (e.g., TPS or U visa) on June 15, 2012 or on the date of applying for deferred action. Applicants for asylum, withholding of removal or cancelation of removal are not considered to be in lawful immigration status unless they are also present in valid nonimmigrant status.
• One conviction of a felony will disqualify the applicant. That is defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Immigration-related offenses characterized as felonies under state laws will not disqualify the applicant.
• One conviction of a significant misdemeanor will disqualify the applicant. This is defined under federal law as a criminal offense for which the maximum term of imprisonment authorized is one year or less but greater than five days and involves domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. It also includes any convictions where the individual was sentenced to time to be served in custody of more than 90 days. Suspended sentences are not included if not an offense listed above.
• Convictions for three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct will also disqualify the applicant. A non-significant misdemeanor is defined under federal law as a criminal offense for which the maximum term of imprisonment authorized is one year or less but greater than five days and does not involve domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. The individual must have been sentenced to time in custody of 90 days or less. Suspended sentences are not considered. Minor traffic offenses such as driving without a license will not be considered a misdemeanor.
• Applicants deemed to be a national security or public safety threat will be disqualified. This includes those who have been involved in gang membership and those who have participated in criminal or other activity that threatens the United States. Applicants who can demonstrate exceptional circumstances may nevertheless be granted deferred action.
• Those granted deferred action may then apply for advance parole on Form I-131 (fee is $360). The desired trip must be for humanitarian, educational, or employment purposes. Applicants for deferred action may not apply simultaneously for advance parole, but must wait for the deferred action to be granted.

Application Process

• The agency plans to have the deferred action forms and instructions ready for downloading from its website by August 15^th, the first day of the application process
• The total fees for deferred action, employment authorization, and biometrics will be $465. Applicants will complete the new deferred action application form and the Form I-765. Given the current fees for an EAD ($380) and biometrics ($85), it appears that there will be no separate fee for deferred action. Applicants are not eligible to file a fee waiver request based on low income. However, there are limited fee exemptions for those whose income is below 150 percent of poverty and are either: (1) under 18, homeless, in foster care or otherwise lacking parental support; (2) unable to care for themselves because they suffer from a serious, chronic disability; or (3) have accumulated $25,000 or more in debt in the last year due to unreimbursed medical expenses. Those applicants should submit a letter, or possibly a special USCIS form, together with supporting documentation to the USCIS and wait until they have received the grant of fee exemption before applying for deferred action.
• Applicants will submit their completed forms, fee, and documentary evidence to a USCIS Lockbox where it will then be forwarded to one of four Service Centers, depending on where the applicant resides
• All applicants will undergo biographic and biometric background checks, and after filing will receive an appointment to appear at their local Application Support Center for the taking of photos and fingerprints
• Applicants in removal proceedings can also file for deferred action with the USCIS, even if they are younger than 15. This includes those with a final order of removal and those with a voluntary departure order, provided they are not in detention. If they are in detention, they will not apply with the USCIS, but will notify their detention officer or contact the ICE Office of Public Advocate (888-351-4024) if they wish to be considered.
• Each application will be reviewed and adjudicated on a case-by-case basis. This review may require the applicant to submit additional documentation. Interviews are not a required part of the adjudication process, although in some cases applicants may be requested to appear at an interview at a local USCIS office for quality assurance or if fraud is suspected.
• If granted, deferred action and employment authorization will be valid for two years and may be extended, assuming the program is not terminated. Extensions or renewal of deferred action and employment authorization will be adjudicated on a case-by-case basis. The applicant for extended or renewed status and employment authorization may be over 31 provided he or she was under 31 on June 15, 2012.
• If denied, the applicant may not appeal or file a motion to reopen/reconsider. There will be a supervisory review process in place at the four Service Centers that will be adjudicating these requests for deferred action. Applicants who are denied may request review of the denial using the Service Request Management Tool process if the denial was based on a finding of abandonment and either: (1) the applicant responded to an RFE within the required time, or (2) the RFE was sent to the wrong address.

Documentary Evidence Proving the Following

• Birth before June 15, 1981 (is under 31) and at least aged 15 on the date of affirmative application. Evidence would include a birth certificate.
• Presence in the United States before turning 16. Evidence might include financial records, medical records, school records, employment records, and military records.
• Continuous residence in the United States for at least five years preceding June 15, 2012. Evidence might include financial records, medical records, school records, employment records, and military records.
• Physical presence here on June 15, 2012. Evidence might include financial records, medical records, school records, employment records, and military records.
• Entered without inspection or lawful immigration status expired as of June 15, 2012
• At the time of application is currently in school, has graduated from or completed high school, has received GED certificate, or has been honorably discharged from the Coast Guard or U.S. Armed Forces. Evidence might include diplomas, certificates of high school completion, GED certificates, report cards, school transcripts, and military personnel, health, and separation forms.
• If ever been in removal proceedings, a copy of the removal order, document issued by the immigration judge, or final decision from the BIA
• If left the United States between June 15, 2007 and August 15, 2012, proof that the departure was brief, casual, and innocent
• Affidavits will not be an adequate substitute for documentary evidence proving current enrollment in school; graduation from high school; obtaining a GED; being honorably discharged from the Coast Guard or Armed Forces; physical presence on June 15, 2012; residence in the United States before turning 16; age on June 15, 2012; or criminal history. Affidavits will be accepted to prove gaps in the five years of continuous residency and that any departures during that period were brief, casual, and innocent. If affidavits are being submitted, a minimum of two will be required from persons other than the applicant who have personal knowledge of the events and circumstances.
• Circumstantial evidence will not be an adequate substitute for documentary evidence proving current enrollment in school; graduation from high school; obtaining a GED; being honorable discharged from the Coast Guard or Armed Forces; and age on June 15, 2012 . Circumstantial evidence will be accepted to prove gaps in the five years of continuous residency; that any departures during that period were brief, casual, and innocent; physical presence on June 15, 2012; and residence in the United States before turning 16. Circumstantial evidence includes credible documentary proof, for example, of physical presence shortly before and after June 15, 2012.

Protection against Enforcement

• The information contained on the application and submitted to USCIS will not be shared with ICE or CBP for any enforcement activities, unless the applicant falls into one of the categories set for by USCIS for issuance of an NTA. Those include applicants who have committed fraud in the application process or who have committed certain serious criminal offenses (typically an aggravated felony).

• The information contained on the application and submitted to USCIS may be shared with ICE, CBP, or other law enforcement agencies for investigative purposes to determine if the applicant qualifies for deferred action and merits a favorable exercise of discretion.
• The applicants' family members are similarly protected from any information sharing for enforcement purposes.