USCIS Updates DACA FAQs
By Charles Wheeler
The USCIS posted updated Frequently Asked Questions regarding DACA on its website on September 14th that covered filing G-28s for group workshops, use of false Social Security Numbers, the standard for submission of evidence to establish continuous residence, and protection for employers who assist in verifying the applicant’s work history.
Whether an attorney or accredited representative who is assisting DACA applicants in a group workshop setting must file a G-28 and enter a formal appearance depends on whether that person will be representing the applicant after the workshop. If the assistance is limited to the workshop, then there may be no need to file a G-28. The USCIS instructs advocates to “assess the extent of the relationship” before deciding whether to file a G-28 or not. The USCIS’s advisal is directed at those providing pro bono assistance and might not apply to situations where the attorney or representative is charging applicants for the assistance.
Use of False SSNs
Question #9 on the I-765 asks for “Social Security Number (include all numbers you have ever used) (if any).” The USCIS said “list those Social Security numbers that were officially issued to you by the Social Security Administration.” Part 1 question #5 on the I-821D asks for “U.S. Social Security Number (if any).” The applicant should answer this in a similar manner. In other words, if he or she was not issued a valid SSN from the SSA, leave that question blank on the I-821D; put “none” on the I-765.
The USCIS answer is consistent with the advice of practitioners, who for years have been counseling their clients to put “none” when responding to questions on immigration forms that request a Social Security Number (SSN). The term has been defined in social security law to mean a legitimate number issued by the Social Security Administration to an applicant. The language on the I-765 has not changed in ten years, except to add the second parenthetical, “if any.” Therefore, the first parenthetical, “include all numbers you have ever used,” does not change that interpretation or make it harder to answer “none.” One may qualify for more than one legitimate SSN at different times (e.g., victims of domestic violence qualify for a different number), which could explain this parenthetical.
If the applicant is relying on documentation to establish residence or entry, such as school or employment records, that contain a fake SSN, then they should still not list fake SSNs on the I-765 or I-821D. We do not recommend redacting the SSN on school or employment records as that would only call attention to the issue. Optimally, the applicant should use documentation that does not contain fake SSNs. For example, obtain a separate letter from the employer listing the date of hire and period of employment.
We should point out that representing a number to be a valid SSN when it is a fictitious number or belongs to another person is a felony under 42 USC § 408(a)(7), punishable by a maximum five years in prison and a $5,000 fine. If such representations are made to a federal agency, that is a separate violation under 18 USC § 1001.
Sufficiency of Evidence
With almost every DACA application, the advocate must decide how much documentary evidence is enough to satisfy the five-year continuous residence requirement. The USCIS has indicated that it does not need to see documentation that covers every day of all five years; there will typically be gaps in the proof that is submitted. The agency will look at the documentation and determine whether it is more likely than not that the applicant was residing here from June 15, 2007 to June 15, 2012. The USCIS suggests that advocates submit as much as reasonably possible. The bottom line: “it is helpful to USCIS if you can submit evidence of your residence during at least each year of the period.” If there are lengthy gaps in the documentation or evidence of significant time spent abroad, the USCIS will likely issue an RFE, which affords the applicant an opportunity to supplement the record. But the agency seems to sending a message of reassurance that it is not expecting strict compliance with the documentation requirement.
Protection for Employers
Employers who provide documentary evidence supporting a DACA applicant’s claim of continuous residence will be covered by the agency’s shield of “confidentiality.” This evidence will not be shared with the ICE or the branch of the government that enforces I-9 violations. In other words, employers need not fear that the evidence they provide will trigger or be the basis for civil fines for hiring an unauthorized alien. The only exception would be in cases where there is evidence of “egregious violations of criminal statutes or widespread abuses.”