Update on DACA (October 2014)
By Ilissa Mira
The Ombudsman’s Office met with CLINIC and other immigration advocates to discuss developments regarding DACA and reports from the field. This article provides updates on a variety of issues related to DACA eligibility and adjudication.
As of June 2014, USCIS had received a total of 712,064 initial DACA requests. According to the Ombudsman, 63,697 initial DACA requests remain pending. Of those, 7,357 cases have been pending over a year. The processing time for DACA requests is 6 months. However, background checks, fraud investigations, and requests for evidence (RFEs) toll processing times until the issue is resolved.
At the end of August, USCIS had received 74,581 renewal requests. By September a reported 113 DACA approvals had been terminated since the start of the program. Of those, 68 were issued NTAs related to criminal convictions or public safety issues.
USCIS reports that the top issues triggering RFEs are continuous residence, current enrollment in a qualifying education program, and proof of presence on June 15, 2012. In particular, non-qualifying education programs remain a concern for USCIS, especially with regard to online high school and home schooling programs.
Advocates have raised two common scenarios resulting in RFEs and denials:
1) Applicant is currently enrolled in college but has a high school diploma from an online program. On his DACA request, the applicant indicates he is eligible as a high school graduate though he could also qualify based on current enrollment in school. Based on the fact that the high school diploma is not from a program of demonstrated effectiveness, USCIS issues an RFE and ultimately a denial.
2) At the time of request, applicant indicated DACA eligibility based on current enrollment in an education program and is unaware that the online program is not qualifying. She later enrolls in a qualifying program and submits proof in response to an RFE. Her request is ultimately denied because she cannot demonstrate that she was currently enrolled in a program of demonstrated effectiveness at the time she originally applied for DACA.
In these cases, USCIS requires that the applicant demonstrate eligibility at the time of filing. However, applicants may re-file if they later become eligible through enrollment in a new, qualified education program. For many, it remains difficult to identify whether specific online or home school programs will be recognized by USCIS.
Pending DACA Renewal
DACA recipients are encouraged to file renewal requests 120 to 150 days before their current period of deferred action and employment authorization document (EAD) expire. Though USCIS has indicated that individuals who apply within this time period may receive a brief DACA extension if USCIS experiences processing delays, no process for requesting this extension has been announced.
Renewal applicants with approaching EAD expirations report that National Customer Service Center representatives are unwilling to open service requests on cases that have been pending for less that the posted DACA processing time, which is currently six months.
Requesting Ombudsman Assistance
The Ombudsman provides individual case assistance to those applying for immigration benefits and makes recommendations to USCIS on improving services to the public. Advocates may contact the Ombudsman for case assistance, particularly with the following situations:
- RFEs and denials based on failure to demonstrate current enrollment in/ high school diploma from a qualified education program
- Template denials that do not adequately explain the basis of denial
- Administrative errors
- Systemic issues requiring a higher level of review, such as inappropriate exercise of discretion, the misapplication of evidentiary standards, or failure to apply stated USCIS policy.
The Ombudsman accepts requests for assistance where a case is ripe for intervention. Advocates should first try to resolve case concerns with USCIS. Cases must be at least 60 days beyond the processing time. For DACA renewals, contact the ombudsman after the case has been pending for 75 days.
To make a request for case assistance, submit an electronic Form DHS-7001. To expedite a request, indicate on the form that the applicant is facing an immediate adverse action, an emergency, or other significant hardship, caused by an action/inaction/delay in processing by USCIS, or a problem that could not be resolved through USCIS. DACA renewal applicants should also indicate their EAD expiration date. After the request is submitted, a case number will be issued via email. In urgent matters advocates should also email Ombudsman staff directly with the case number and specifically request the case be expedited so that the inquiry is removed from the general queue.