Update on DACA (June 18, 2015) | CLINIC

Update on DACA (June 18, 2015)

By Jen Riddle and Jill Bussey

This month marks the 3-year anniversary of the Deferred Action for Childhood Arrivals (DACA) program. Since DACA launched in 2012, over 664,000 individuals have been granted temporary reprieve from deportation and a work permit.  All 50 states now permit DACA recipients to apply for driver’s licenses, following policy reversals in Nebraska and Arizona due to legislative action (in NE) and litigation (in AZ). 

However, despite the substantial benefits of DACA, only 748,000 of the more than 2.1 million estimated to be eligible have applied so far.  To view the latest statistics from the U.S. Citizenship and Immigration Services (USCIS), click here. A recent report from the Brookings Metropolitan Policy Program draws upon government statistics and field interviews to provide suggestions for strengthening DACA implementation locally and preparing to implement Deferred Action for the Parents of Americans and Lawful Permanent Residents (DAPA).  A Scholars Strategy Network report indicates that the greatest barriers for those who have not yet applied are a lack of financial resources for fees or legal services (43%) and a lack of evidence to demonstrate DACA eligibility (22%). These reports speak to the critical role that outreach and education continue to play in successful access to the program.

 

DACA Renewals

The number of DACA renewal applications filed has been much lower than expected; Only 243,000 DACA recipients have successfully renewed their DACA status so far  (which represents roughly 1/2 of the estimated 470,000 eligible to renew). In addition to the low numbers of renewal applications, there are continued reports of delayed USCIS processing of renewal requests. While official processing times for I-821D renewal applications are 3.5 months, many renewal applications are not being adjudicated within this timeframe, despite having been filed within the recommended window of 120 to 150 days prior to expiration.

On June 15, 2015, USCIS updated the DACA FAQs on its website that addressing DACA renewal (specifically questions 49-52). The changes include:

  • USCIS removed the language indicating that it would provide temporary extensions of DACA and employment authorization to renewal applicants who filed at least 120 days prior to expiration and experienced USCIS delays in adjudicating the renewal. In practice, USCIS had not been issuing temporary extensions but it is no longer mentioned as a possibility in the FAQs.   
  • USCIS confirmed that, while it still encourages renewal applicants to file within the 150-120 day filing window, it will accept renewal applications received earlier than 150 days. However, it warns that filing before 150 days could result in an overlap between the previous DACA validity and the validity of the extension.
  • USCIS clarified that the following factors may affect its ability to timely process DACA renewals: failure to attend a biometrics appointment; national security, criminality or public safety issues discovered during background check; travel abroad issues needing clarification or additional evidence; discrepancies in name or date of birth requiring clarification; and incomplete submissions requiring a Request for Evidence.
  • USCIS deleted Question 51 from the prior FAQs  (“How will USCIS evaluate my request for renewal of DACA?”). The deleted FAQ provided that an applicant would be considered for renewal if they met the Initial DACA guidelines and did not depart the U.S. on or after August 15, 2102 without advance parole; had continuously resided in the U.S. since submitting the most recent request for DACA that was approved up to the present; and had no felony, significant misdemeanor, or three or more misdemeanor convictions and did not otherwise pose a national security or public safety risk.  It is not clear why this FAQ was removed but CLINIC will update our network as new developments arise.

Advocates will continue to push for a temporary automatic renewal of DACA status in order to prevent gaps in employment authorization, which often result in lost jobs and other serious harm to DACA recipients and their families. In the meantime, clients should be encouraged to file renewal applications as early as possible. Once a renewal application has been pending for 105 days, a service request can be made with USCIS online or by calling the National Customer Service Center at 1 (800) 375-5283.  CLINIC continued to assist its network with initial DACA applications filed in 2012 and 2013 that remain pending with USCIS. The USCIS Ombudsman’s office is also able to provide case assistance for initial applications and renewal applications that have been pending with USCIS for more than 105 days.

 

Confusion Over Two-year v. Three-year EADs

One of the expansions to DACA announced by the President on November 20, 2014 was that employment authorization documents (EADs) for DACA recipients would be issued for three-year periods instead of two-year increments.  Starting in November and until the federal court injunction was issued on February 16, 2015, USCIS granted DACA approval notices and EADs with a three-year validity to an estimated 108,000 individuals. In order to comply with the court’s injunction, USCIS decided to halt the issuance of three-year approvals and EADs beginning February 17, 2015. However, this policy did not go into effect immediately.  USCIS continued to send three-year approvals and EADs after February 16 to an estimated 2,000 DACA recipients who should have received two-year documents.  To correct this error, USCIS has been sending letters to those mistakenly issued three-year EADs after February 16 asking them to return the documents so that they can be replaced with two-year EADs. 

Please advise DACA recipients to check the date of their DACA approval and EAD notice carefully. If a DACA renewal or initial application was approved with three-year validity after February 16, 2015, they should expect to receive a notice from USCIS that the three-year grant was issued in error and that a new EAD and approval notice bearing two-year validity will be issued. The notices issued by USCIS indicate the recipient should return the three-year documents.  CLINIC recommends that clients do so but only after the DACA grantee has received an updated two-year work permit and approval notice from USCIS. Note that USCIS has taken the position that any three-year DACA related document, including an EAD card, issued or produced after February 16, 2015 is subject to revocation. Please send examples of any USCIS revocation letters you believe were issued in error (i.e., in cases approved well before the February 16, 2015 injunction) to Advocacy Attorney Jill Bussey at: jbussey@cliniclegal.org

 

Reminder About Becoming DACA Eligible and Screening for Alternative Relief

While the expanded DACA program announced last November remains on hold as a result of the pending litigation in Texas, don’t forget that every day individuals “age in” to DACA eligibility by turning 15 years old.  Approximately 500,000 individuals are estimated to age-in to the 2012 DACA program in the decade following its launch (2012-2022). During CLINIC’s Convening in Salt Lake City last month, USCIS Director Leon Rodriguez advised that 80,000 age in to DACA each year. With outreach and education, individuals who are aging in to DACA have the potential benefit of advance knowledge of the requirements and how to gather evidence for successful applications.

In addition, those who would otherwise qualify for DACA but have not met the education requirement may become eligible by taking steps to enroll in a qualifying educational program. Please refer educators, counselors, and administrators in schools or adult education programs to the recording of CLINIC’s recent webinar about DACA and DAPA eligibility and ways to connect community members with trusted information and legal assistance.

Last but not least, the Center for Migration Studies data indicates that 14% of immigrants screened for DACA eligibility are eligible for another form of relief. When conducting outreach sessions or clinics, consider including provide legal screenings for other immigration relief.