By Tatyana Delgado
A new edition of the Deferred Action for Childhood Arrivals (DACA) application (Form I-821D) and instructions, dated June 25, 2013, is now available on the USCIS website. After September 9, 2013, USCIS will only accept this version of the DACA application form.
The new Form I-821D and instructions include the following major changes:
Removal Proceedings Information (Form I-821D Part 1, Question 3)
In the revised application form, USCIS provides greater clarification about how to answer the question regarding whether the applicant is or has ever been in removal proceedings. The form now includes a list of types of removal proceedings (e.g. exclusion or deportation, INA § 240 removal proceedings, expedited removal proceedings), which should help an applicant identify whether he or she has been in or is currently subject to removal proceedings. The revised form also allows the applicant to indicate whether pending proceedings are active or administratively closed.
The new form also directs the applicant to include the “most recent” date of proceedings. The prior version of the form simply asked for “date and location of proceedings,” which made it difficult for applicants to answer properly. It was unclear whether the applicant should include, for example, the most recent hearing date, an upcoming hearing date, the date the administrative closure or termination of proceedings occurred, or the date of the issuance of the final removal order. Presumably, applicants should now indicate the most recent date of any court hearing.
Status on June 15, 2012 (Form I-821D Part 1, Question 15)
The new I-821D now asks about the applicant’s immigration status on June 15, 2012, rather than at the time of entry. The form lists three potential responses: no lawful status; status expired; and parole expired prior I-821D. This change is consistent with the DACA eligibility guideline providing that applicants must have entered without inspection before June 15, 2012 or their lawful immigration status must have expired as of June 15, 2012. Individuals who entered the United States with a visa or parole that expired as of June 15, 2012 should indicate that their status or parole expired. Individuals who entered the United States without inspection should indicate that they had no lawful status on June 15, 2012.
Educational Information (Form I-821D, Part 1, Questions 18-20; Form Instructions at pp 6-7)
The new form makes slight modifications to the three questions addressing the applicant's educational background. Question 18 on current education status now references that this pertains to being in school, having a GED, or having a high school diploma. Question 20 has been slightly revised to ask for the applicant's date of graduation, indicating that this also may include the date of receipt of a certificate of completion or GED certificate or, if currently in school, date of last attendance.
Revised application instructions now include a more detailed description of the types of acceptable programs and evidence needed to show that applicants meet the DACA education requirement. For example, the instructions provide that an applicant may be considered “enrolled in school” if enrolled in an education, literacy, or career training program aimed at placing the individual in post-secondary education, job training, or employment. The instructions also provide that applicants may meet the “enrolled in school” guideline by enrolling in an education program that helps them obtain a high school diploma or pass a GED exam or other state-authorized equivalent exam. The applicant must provide evidence regarding whether the program is funded in whole or in part by federal, state, local, or municipal funds. If the program is not publicly funded, then applicants have to show that the program has “demonstrated effectiveness.” Evidence of demonstrated effectiveness includes a letter from a program representative regarding how long the program has existed, the program’s track record, awards/special achievements, and any other explanation of the program’s overall quality.
Arrival/Residence Information (Form I-821D Part 2, Question 1)
A new question and accompanying text in this section should help an applicant indicate his or her eligibility for DACA based on an initial arrival in the United States before age 16. As noted in the form, applicants who first entered the United States before age 16 and established residence at that time qualify for DACA, even if they departed the United States for some period of time and returned after age 16. The prior version of the form asked only whether the applicant had arrived in the United States on or before June 15, 2007.
Accompanying instructions to the new form list potential documents that may serve as evidence of residence in the United States prior to turning 16, including records showing school attendance, employment in the United States, or residence in the United States. for multiple years.
Juvenile Delinquency Dispositions (Form I-821D, Part 3, Question 1)
Question 1 in this section of the form asks whether the applicant has ever been arrested, charged with, or convicted of a felony or misdemeanor in the United States. The old form was silent as to whether this question required the disclosure of juvenile offenses, which are not considered to be convictions under immigration law. The new form, however, specifically states that juvenile offenses should be disclosed. However, the form does note that applicants do not need to submit accompanying court records where such disclosure is prohibited under state law.
CLINIC has joined with other several other organizations in advocating that USCIS not consider juvenile offenses in determining DACA eligibility. In particular, CLINIC has raised the concern that differences in state laws regarding access to juvenile records makes it difficult for USCIS to treat applicants uniformly. Under current policy, certain applicants have to divulge juvenile records that may negatively impact their cases while others are exempt from this requirement. For this reason, CLINIC will continue to advocate with USCIS to reconsider this policy regarding disclosure of juvenile delinquency offenses and records.
Form Preparer (Form I-821D part 4 )
Form I-821D now asks the applicant to indicate whether anyone helped prepare the application or any portion of it. If the applicant answers "yes" to this question, USCIS will expect that Part 5 of the application form will include a signed declaration by the person or persons who helped prepare the application. As a result of this change, more individuals involved in application assistance may need to identify themselves as form preparers and complete the declaration in Part 5 of the application.