On February 14, 2014, CLINIC submitted comments to U.S. Citizenship and Immigration Services about the agency’s proposed changes to Form I-821D, the form used to request Deferred Action for Childhood Arrivals (DACA). The proposed changes to the form establish procedures for individuals to demonstrate continued eligibility for deferred action – extending the two years of deferral originally granted to them.
CLINIC is pleased that renewal applicants will not, for the most part, have to submit copious amounts of additional supporting evidence in support of their requests. Nevertheless, we encourage USCIS to make several changes to the proposed form and instructions to help both initial and renewal applicants better understand the application process. Among our chief concerns is that the proposed 120 day window for submitting renewal requests is unreasonably short and could result in renewal applicants losing work authorization and accumulating unlawful presence.
Please see CLINIC’s other recommendations, below.
February 14, 2014
Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services, Department of Homeland Security
Re: Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I-821D; Revision of a Currently Approved Collection
Dear Ms. Dawkins,
The Catholic Legal Immigration Network, Inc. (CLINIC) submits the following comments in response to USCIS’s December 18, 2013 notice regarding proposed changes to Form I-821D (Consideration of Deferred Action for Childhood Arrivals) and the accompanying instructions.
CLINIC supports a national network of community-based legal immigration service programs. The network includes over 240 immigration programs operating out of 397 offices in 46 states, Puerto Rico, and the District of Columbia. CLINIC’s network employs roughly 1,400 staff, including attorneys and accredited representatives who, in turn, serve over 300,000 low income immigrants each year. CLINIC and its member agencies provide free and low-cost representation to thousands of applicants for Deferred Action for Childhood Arrivals (DACA).
CLINIC commends USCIS for developing a renewal process that allows initial DACA recipients who meet the guidelines to continue to benefit from deferred action. We are especially pleased with USCIS’s decision to limit the circumstances in which renewal applicants need to submit additional supporting evidence. Nevertheless, we encourage USCIS to make several changes to the proposed form and instructions to help both initial and renewal applicants better understand the application process. Among our chief concerns is that the proposed 120 day window for submitting renewal requests is unreasonably short and could result in renewal applicants losing work authorization and accumulating unlawful presence. We urge USCIS to extend the renewal period to 180 days before expiration of status and to automatically extend deferred action and work authorization for renewal requestors whose applications are pending adjudication.
Overall Structure of Proposed Form I-821D
Form I-821D contains questions for both initial and renewal applicants that are intermingled with each other throughout the form. Applicants are likely to have difficulty determining which questions are for initial applicants, renewal applicants, or both. Certain questions are labeled as “For Initial Requests” or “For Renewal Requests,” but many questions do not have any kind of label. For example, the “Removal Proceedings Information,” “Processing Information,” and “Criminal, National Security, and Public Safety Information” sections do not have any labels.
Recommendation: To make it easier for initial and renewal applicants to successfully complete the form, sets of questions for initial applicants only and renewal applicants only should be clustered together. Specifically, the form should start with Part 1, Questions 1-4, which ask for the type of applicant (initial or renewal), the full name of the applicant, and U.S. mailing address. The next set of questions should be for initial applicants only, followed by another set of questions for renewal applicants only. The last set of questions would include those for both initial and renewal applicants. This format would resemble USCIS Forms I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and I-131 (Application for Travel Document), which cluster questions for different types of applicants or immigration benefits together. We also suggest that USCIS employ the one column format utilized in these forms, with shaded and captioned bands separating each section of the form, making it easier for the applicant to read and determine which sections to complete.
In the alternative, if USCIS adopts the current form structure, it should clearly and consistently identify which sections or questions are meant for initial applicants, renewal applicants, or both.
Page 1, Part 1, Questions 1 and 2.a., Initial or Renewal Applicant
In questions 1 and 2.a., the form asks whether the applicant is an initial or renewal applicant. Individuals who applied for DACA, received a denial, and seek to re-apply are likely to be confused about how best to answer this question.
Recommendation: Question 1 should be amended as follows (new language in bold italics):
Consideration of Deferred Action for Childhood Arrivals – Initial Request (includes applicants who are re-applying after an earlier application was denied)
Page 1, Instructions
Given the complexity of the DACA request process for both initial applicants and renewal applicants, we appreciate USCIS making a clear reference to read the accompanying instructions for information on completing the form. Many current DACA recipients are anticipating the renewal request process and plan to submit requests as soon as possible. While the instructions include a note specifying that USCIS may reject a renewal request filed more than 120 days prior to the expiration of a current period of deferred action, this information is absent from the form itself. While we urge USCIS to extend this period to 180 days, the application form itself should reference the renewal application period ultimately determined by the agency. Renewal applicants, especially those who are pro se, would benefit from a more prominent instruction.
Recommendation: The preliminary instruction on page 1 of Form I-821D should be amended as follows:
START HERE. Type or print in black ink. Read the instructions for information on how to complete this form. Renewal requests may be submitted up to 180 days prior to the expiration of your current period of deferred action.
Page 2, Part 1, Question 20.c., Current Status and Pending Requests
Renewal applicants must explain whether they have any pending immigration-related requests or have received any immigration status. Renewal applicants should not be asked to provide this information because it is unnecessary and confusing. Many applicants, especially those proceeding pro se, are likely to lack an understanding of the terms “immigration status” or “immigration-related requests.” Requiring this information may delay the timely completion of the application, particularly in group processing workshops, where individuals rarely have complete information on their entire immigration history. Information regarding pending requests is irrelevant to determining a requestor’s eligibility for DACA, as the guidelines require only that an applicant was without lawful status as of June 15, 2012 and at the time of the DACA request.
Recommendation: USCIS should remove question 20.c. from the application form. If this section is retained, USCIS should provide examples of immigration benefits commonly obtained by DACA recipients in parenthesis or in a drop down menu on the electronic version of the form.
Page 3, Part 1, Education and Military Service Information (For Renewal Requests Only)
The complicated structure of this section is likely to cause confusion, particularly for pro-se applicants. Applicants who indicate that they were “currently enrolled in school” at the time their initial DACA request was approved (Item 25.d.) are directed to read through Items 26 – 28, a series of multi-part statements and repetitive answer options regarding educational history and current educational status. The answer options provided are highly specific, yet some terms within this section are not defined. For example, Question 25.d. refers to being enrolled in “school,” broadly. Since it does not clarify the term, applicants may be confused as to whether it refers to any school that is considered qualified education for DACA (elementary, middle school, high school; but also GED, literacy, and career training programs). The instructions do not state where to proceed if the applicant does not mark 25.d.
An applicant reviewing Items 26 – 28 must select one item that describes her specific educational status at the time she was initially approved for DACA and her current educational status. We appreciate that USCIS has expanded the qualifying education options for renewals beyond those described in the Frequently Asked Questions (dated January 18. 2013), however, the limited options provided unfairly impose different standards on renewal requestors based on how they initially met the education requirement. Renewal requestors who were previously enrolled in 1) elementary, middle school, or high school or 2) an education, literacy, or career training program must demonstrate that they have since graduated or made substantial, measurable progress toward graduating or completing that program. In contrast, those who were enrolled in a program assisting students in obtaining a high school diploma or passing the GED exam (or other state equivalent) must pass the exam or receive a high school diploma. No rationale has been provided for these distinctions.
Further, these different standards are likely to be confusing to applicants who may have difficulty interpreting the form and identifying which standard applies to them. Item 29 instructs an applicant who does not find his circumstance described in the options available to indicate that he has not met the educational guideline, even if he is presently enrolled in a school or program that would otherwise meet the educational requirement.
Requestors who have completed an education, literacy, or career-training program must be employed in the field of their training, or be enrolled in post-secondary education, job training, or an employment program in order to renew deferred action. This requirement presents a difficult challenge to DACA recipients who have made substantial progress in their qualifying education, literacy, or career training program, but who, like many individuals in this job market, struggle to find work or are forced to accept employment outside their field of training and cannot afford further education. Applicants who make good faith attempts to find employment should not be penalized after completing qualifying education, literacy, or career training programs.
Recommendation: Below is one suggested format for simplifying the structure and content of the current Education and Military Service Information section. DACA recipients who, at the time of their renewal request, are enrolled in any school or program that would satisfy the initial educational requirement should be able to demonstrate continuing eligibility, regardless of the type of program they were enrolled in previously. Proposed format:
If you selected Item Number 25 – 25.c., move on to Part 2. Processing Information.
If you selected Item Number 25.d., respond to Items 26 – 27.
26. At the time I was last approved for Deferred Action for Childhood Arrivals, I was enrolled in:
1) U.S. elementary school, middle school, high school, or secondary school.
2) An education program assisting students in obtaining a high school diploma or passing a GED exam.
3) An education, literacy, or career training program designed to lead to placement in postsecondary education, job training, or employment.
27. Indicate how you currently meet the educational guideline:
1) I have graduated from high school/obtained a high school diploma.
2) I have passed the GED or equivalent state exam.
3) I am currently enrolled in a U.S. elementary school, middle school, high school, or secondary school and have made substantial progress toward graduating.
4) I am currently enrolled in a new/different education program that assists students in either obtaining a high school diploma or its equivalent under state law or in passing a GED exam or equivalent state exam.
5) I am currently enrolled in a new/different education, literacy, or career training program designed to lead to placement in postsecondary education, job training, or employment.
6) I have completed an education, literacy, or career-training program.
Item 29 should be revised to indicate that an applicant whose circumstance is not reflected in Items 26 or 27 should explain his continuing eligibility in Part 9. Additional Information. Language suggesting that the applicant does not meet the educational guideline should be removed. USCIS should consider the completion of an education, literacy, or career-training program as equivalent to a high school diploma or a General Education Development (GED) certificate and sufficient for renewal.
Page 3, Part 1,“At the time I filed my Form I-821D that USCIS approved for my initial period of Deferred Action as a Childhood Arrival:”
Some applicants may have met the education requirement in multiple ways; for example, they may have graduated from high school in the U.S., but marked “currently enrolled in college” on their initial request. In other cases, applicants were approved after responding to a Request for Evidence (RFE). During the period they responded to the RFE, their educational status changed. For example, an applicant may have been enrolled in high school at the time she submitted her initial application and later issued an RFE for information unrelated to the education guideline. In the meantime, she graduated from high school and so she included a copy of her diploma in her response to the RFE. Both of these scenarios may cause confusion for renewal applicants and raise the concern that renewal requests may be denied due to inadvertent inconsistencies.
Recommendation: Provide guidance to USCIS adjudicators clarifying that renewal requests should not be denied solely because of an inconsistent response to this question, where the initial DACA application, including any supplemental evidence submitted, indicates that the applicant satisfied the educational requirements for approval. Additionally, rather than ask applicants how they satisfied the education guideline in their initial request, Question 26 could be amended to ask how applicants demonstrated their eligibility on their last approved application.
Page 4, Part 2, Questions 1-6, Processing Information
Form I-821D requests processing information, including ethnicity, race, height, weight, etc. These questions may deter potential requestors who fear revealing their identity to the government and are worried about how their personal information might be used. Similarly, Form N-400 (Application for Naturalization) requests this type of information. On page 5 of the N-400, USCIS clearly indicates that this information is required for background checks and the section is entitled “Information for Criminal Records Check.” While the instructions to Form I-821D inform applicants that providing this information will reduce the time they spend at ASC appointments, Form I-821D itself does not clearly indicate why this information is being requested or how it is being used.
Recommendation: Form I-821D and/or instructions should contain an explanation of how information about applicants’ race, ethnicity, and physical characteristics will be used and the rationale for requesting such information. The I-821D form and/or instructions should also indicate that USCIS will not make DACA determinations based on applicants’ gender, race, or physical characteristics. Greater transparency will help applicants better understand the process.
Page 5, Part 4, Questions 4 – 5, Travel Information
Questions related to whether a renewal requestor has a passport and/or a border crossing card are not relevant to determining whether the requestor is eligible for DACA renewal. DACA recipients are not required to obtain a passport, and in some cases, it may be complicated and/or time consuming to obtain a passport. Including questions about applicants’ passport numbers and expiration dates would be unnecessarily burdensome for certain applicants.
Recommendation: Questions 4 – 5 of the Travel Information section should be removed.
Page 5, Part 5, Criminal, National Security, and Public Safety Information
In the Criminal, National Security, and Public Safety section, the form asks whether applicants have EVER engaged in various criminal activities. Renewal applicants are not given instructions as to whether they must report on incidents occurring before or after receiving DACA. It is burdensome for renewal applicants to provide information and records that they already provided at the time of the initial application. It is also unnecessary for USCIS adjudicators to assess information that was already reviewed and evaluated during the initial application process.
Recommendation: The form should indicate that renewal applicants need only provide information and records related to charges or convictions that occurred since they were granted DACA. Specifically, the form should include the following sentence:
For Renewal Applicants: With regard to criminal/national security and public safety questions, you need only report on incidents and provide records related to incidents that occurred since your initial DACA application was approved. You do not need to report on or re-submit records that you already reported on or provided to USCIS.
Page 5, Part 5, Question 1, Juvenile Convictions
An applicant is required to indicate whether he or she has EVER been arrested for, charged with, or convicted of a felony or misdemeanor in the United States, even if the incident was disposed of in juvenile court. The form further requires that a requester provide documents, including all arrest records, charging documents, dispositions, and sentencing records. The form only allows a person to withhold the records if the disclosure is prohibited under state law.
Though juvenile records are public in some states, many states do not permit the disclosure of juvenile records to parties outside the juvenile justice system without first obtaining a court order. To ensure uniform treatment of all DACA requests, USCIS should not require applicants to reveal whether they were charged with or convicted of a felony or misdemeanor if that incident was handled in juvenile court. Removing this requirement will prevent the unavoidably inconsistent and unfair treatment of applicants who are subject to divergent state laws.
Recommendation: The form should be amended to read (new language in bold italics):
Have you EVER been arrested for, charged with, or convicted of a felony or misdemeanor in the United States? Do not include minor traffic violations unless they were alcohol- or-drug-related. Do not include incidents handled in juvenile court.
Page 5, Part 5, Questions 1 and 2, Arrest Record
Applicants must provide an arrest record for any felonies or misdemeanors in the U.S. or any crimes elsewhere. It is unclear whether documents such as police reports are covered by “arrest records.” This uncertainty may deter some individuals from requesting DACA. The form and instructions should limit evidence of criminal convictions required for DACA cases to the record of conviction. This would afford more predictability and accuracy in determining DACA eligibility and assure that the adjudicator is only considering relevant evidence.
Recommendation: The form should be amended to read (new language in bold italics):
If you answered “Yes,” you must include a certified court disposition, charging document, verdict or judgment of conviction, or sentencing record for each incident, unless the records involved incidents handled in juvenile court or disclosure is prohibited under state law.
Form I-821D Instructions
Page 1, When Should I Use Form I-821D?
Renewal applicants are instructed to file the Form I-765 Worksheet (I-765WS) along with their I-821D renewal applications. In other words, renewal applicants are being asked to re-establish economic necessity.
Recommendation: Given that these applicants have previously demonstrated economic necessity, they should not be required to demonstrate economic necessity at the time of renewal. Any references to completing Form I-765WS in the instructions should be removed.
Page 1, When Should I Use Form I-821D?
Applicants who initially received DACA from ICE are instructed to complete the entire form and provide documentation showing that they satisfied the guidelines at the time of their initial filing. This policy is objectionable because individuals who were approved for DACA by ICE were granted DACA under the same policies and guidelines as those approved by USCIS. For this reason, it is neither reasonable nor justified to establish separate evidentiary requirements for a subset of DACA grantees. All DACA renewal applicants should be evaluated using consistent standards.
Moreover, imposing this requirement is particularly burdensome for ICE grantees, because they were detained during the application process and are less likely to have copies of their initial applications. Such a policy places an undue burden on applicants to retrieve documents from ICE – a process that may be complicated and time consuming and may delay applicants’ ability to apply for renewal.
Recommendation: The renewal process should not distinguish between those granted DACA by ICE and those granted by USCIS.
Page 2, Who May File Form I-821D?
The text in this section indicates that USCIS intends to limit the renewal application period to the 120 days preceding the expiration of the current period of deferred action. As detailed below, we are concerned that a 120 day time frame to adjudicate renewal applications is insufficient without providing additional protections for applicants. The current average processing time for I-821Ds is 6 months, and many DACA requests have been pending for much longer than that.
Employed DACA recipients whose work authorization expires while their renewal request is being adjudicated will face termination or suspension. This will harm DACA recipients, their families, and employers and undermine the very objective of DACA to provide protection and stability to these young deferred action grantees. For these reasons, the proposed renewal adjudication procedure is inadequate to protect DACA grantees from the risk of accumulating unlawful presence and lacking a valid EAD.
Recommendation: The renewal application period should be extended to 180 days to provide a more realistic timeframe for USCIS to adjudicate submissions in a timely fashion. Further, to protect DACA applicants who may experience renewal adjudication delays, or may not be able to file renewal applications several months in advance of their current status expiration, USCIS should automatically extend deferred action and employment authorization upon receipt of a renewal application.
The Form I-797C Notice of Action receipt should serve as notice of a 6 month temporary extension. This policy would be consistent with USCIS policies relating to Temporary Protected Status (TPS) holders and Conditional Residents. Specifically, when TPS re-registrants will not receive new EADs until after the expiration of their current EADs, USCIS has granted automatic 6 month extensions to prevent gaps in employment authorization. In addition, conditional residents with Forms I-751 to remove conditions on residence pending have their status automatically extended for a year and may present their expired Form I-551 and Form I-707 as evidence of their status in the United States.
Current USCIS guidelines provide that requestors who turn eighteen while their applications are pending will not accrue unlawful presence. This policy should be extended to protect all renewal applicants from accruing unlawful presence while their requests are pending, regardless of the requestor’s age. Further, DACA applicants face many challenges to completing requests within the filing window. We urge USCIS to allow those unable to file within the 180 day period to also apply as renewal requestors.
Page 9, What evidence should I submit to demonstrate my criminal history?
Applicants are required to submit original official statements from arresting agencies or courts confirming that no charges were filed for any felony or misdemeanor arrests in the U.S. or a crime in any other country. Applicants are also required to submit an original statement from the court indicating that no record exists of arrests or convictions that have been vacated, set aside, sealed, expunged, or otherwise removed from their criminal record. These requirements are overly burdensome for applicants. Many are likely to have difficulty obtaining statements of no record or no charges from courts or arresting agencies.
Recommendation: Applicants should not be required to submit statements from arresting agencies or courts confirming that no charges were filed or that no records exist. However, if USCIS adopts this requirement, applicants should be given the opportunity to explain why the documents cannot be provided and their efforts to obtain the documents. Most importantly, applicants’ inability to obtain these documents should not negatively impact the adjudication of their cases. The instructions should be amended to read (new language in bold italics):
12.c. If you have ever had any arrest or conviction vacated, set aside, sealed, expunged, or otherwise removed from your record, submit:
(1) An original or court certified copy of the court order vacating, setting aside, sealing, expunging, or otherwise removing the arrest or conviction; or
(2) An original statement from the court that no record exists of your arrest or conviction.
If you are unable to provide such documentation or it is not available, you may provide an explanation, including a description of your efforts to obtain such evidence, in Part 9. Additional Information.
Page 10, Evidence for Renewal Requests
Renewal applicants are given limited instructions on evidence needed for renewal requests. USCIS should offer greater clarification on the evidence needed for renewal purposes.
Recommendation: The instructions should be amended as follows (new language in bold italics):
Evidence for Renewal Requests
1. If I have never been in removal proceedings and have not been arrested for, charged with, or convicted of a crime since receiving DACA, what evidence do I need to submit with my renewal application?
If you have not been arrested for, charged with, or convicted of a felony or misdemeanor in the U.S. or any crime outside the U.S. since you received DACA and have never been in removal proceedings, then you are not required to provide any supporting evidence.
2. If you were arrested for, charged with, or convicted of a felony or misdemeanor in the U.S. or arrested for, charged with, or convicted of a crime in another country AFTER being granted DACA, what evidence should you provide?
You must include a certified court disposition, charging document, verdict or judgment of conviction, sentencing record, etc., for each incident, unless the records involved incidents handled in juvenile court. You do not need to re-submit evidence of any arrests, charges, or convictions for felonies or misdemeanors in the U.S. or crimes in other countries that you already submitted to USCIS prior to your DACA grant.
3. What documents should you submit if you have been in exclusion, deportation, or removal proceedings since receiving DACA?
You must submit a copy of any document issued by the immigration judge or final decision of the Board of Immigration Appeals (BIA), if available. If you have not been in exclusion, deportation, or removal proceedings, this question does not apply to you. You do not need to re-submit evidence related to exclusion, deportation, or removal proceedings that you already submitted to USCIS prior to your DACA grant.
Page 11, What is the filing fee?
A request for renewal of deferred action has the same filing fee as the initial request -- $465 for the Employment Authorization Document and the biometrics fee. Since the renewal application requires much less documentation than an initial application, and adjudicators will spend less time reviewing each renewal application, the fee for the renewal request should be less than for the initial.
Recommendation: We recommend only charging renewal applicants the $85 biometric services fee. In other contexts, such as permanent residence, USCIS charges a lower fee for renewal than for an initial application. The total cost of adjusting to lawful permanent resident status is $1070, while the total cost of renewing a green card is only $450. In the alternative, we recommend that USCIS expand the criteria for fee exemption eligibility to include low-income individuals. Applicants whose household income is below 150% of the federal poverty line should be eligible for a fee exemption. Currently, approximately one third of DACA-eligible youth live in families with incomes below 100% of the federal poverty level (FPL), and two-thirds live in families with incomes below 200% of the federal poverty level.
Page 13, Checklist
The checklists in the instructions include lists of questions for initial and renewal requests and for initial requests only. These checklists are likely to be confusing for applicants. It is difficult to decipher which checklist questions apply to initial or renewal applicants.
Recommendation: The instructions should include one checklist for initial applicants only and one checklist for renewal applicants only. Specifically, the checklists should be amended as follows (new language in bold italics):
For Initial Requests Only
Did you submit Form I-765 along with the filing and biometric services fees ($465) required for the application for employment authorization and did you also submit a completed Form I-765WS?
Did you answer all of the questions, except for those marked “For Renewal Requests Only”?
Did you provide an original, handwritten signature and date your request?
Did you submit evidence to show that you came to the United States while under 16 years of age and established residence at that time?
Did you submit evidence to prove identity, date of initial entry, and continuous residence from June 15, 2007 (or earlier) up to the present time?
Did you submit evidence that you are currently in school, have a GED certificate, have graduated or received a certificate of completion from high school, or are an honorably discharged veteran of the U.S. Armed Forces or U.S. Coast Guard?
Did you provide evidence showing that you were in an unlawful status as of June 15, 2012, or if you were previously in lawful status, that your lawful status expired prior to June 15, 2012?
If you were issued a final order of exclusion, deportation, or removal, did you include a copy of that final order (if available)?
If your exclusion, deportation, or removal proceedings were terminated by an immigration judge, did you include a copy of the immigration judge’s termination order (if available)?
If you have ever been arrested for, charged with, or convicted of a felony or misdemeanor in the United States or any crime in any country other than the United States, did you submit an original official or court certified document that shows your charges and final disposition for each incident?
For Renewal Requests Only
Did you submit Form I-765 along with the biometric services fee ($85) required for the application for renewal of the employment authorization?
Did you answer all of the questions, except for those marked “For Initial Requests Only”?
Did you provide an original, handwritten signature and date your request?
If, since you were granted DACA, you were issued a final order of exclusion, deportation, or removal, did you include a copy of that final order (if available)?
If, since you were granted DACA, your exclusion, deportation, or removal proceedings were terminated by an immigration judge, did you include a copy of the immigration judge’s termination order (if available)?
If, since you were granted DACA, you have ever been arrested for, charged with, or convicted of a felony or misdemeanor in the United States or any crime in any country other than the United States, did you submit an original official or court certified document that shows your charges and final disposition for each incident?
We thank you for your consideration of these comments and look forward to continuing to work with the agency regarding this important program. Please do not hesitate to contact CLINIC’s Director of Advocacy, Allison Posner, at 301-565-4831 or firstname.lastname@example.org  for additional information.
Jeanne M. Atkinson, ESQ.
  Batalova, Jeanne, Randy Capps and Sandy Hooker. Deferred Action for Childhood Arrivals at the One-Year Mark. Migration Policy Institute. August 2013, available at http://www.migrationpolicy.org/pubs/CIRbrief-DACAatOneYear.pdf .