By Ilissa Mira
A federal court decision issued on February 16, 2015 has temporarily blocked expanded DACA and DAPA implementation. In response to this injunction, the Department of Homeland Security has suspended its original plans to accept expanded DACA applications starting February 18, 2015. Despite this delay, the Department of Justice, legal scholars, and immigration experts believe that both expanded DACA and DAPA were created within the legal authority of the federal government and will be upheld. What should legal providers expect when the application process resumes?
On February 11, 2015, USCIS published updated Frequently Asked Questions (FAQs) and revised instructions to the Form I-821D. The revised guidance, published before the anticipated expanded DACA opening, has since been rescinded. Individuals who are eligible for DACA under the original guidelines may continue to apply for initial or renewal DACA using the current form I-821D and instructions. Although the previous FAQs (dated October 23, 2014) remain in effect, the February 2015 revisions provide new information about how expanded DACA will eventually be implemented. This article highlights some of the policies that will likely be in place for expanded DACA implementation.
Expanded DACA Guidelines
A November 20, 2014 memorandum by DHS Secretary Jeh Johnson announced three changes to the existing DACA program. First, the expanded guidelines eliminated the original requirement that an individual be under age 31 as of June 15, 2012. Second, the continuous residence period was changed. Under the original guidelines, individuals must demonstrate continuous residence from June 15, 2007 up to the time of their request. Under expanded DACA, the continuous residence period is from January 1, 2010 up to the time of request. Finally, deferred action and work authorization under DACA are extended from a 2-year renewable period to a 3-year renewable period.
The February FAQs clarified that the other original DACA eligibility guidelines regarding age of arrival, physical presence, education, and criminal history will remain in place. Immigration advocates sought to have the physical presence and lawful immigration status date changed from June 15, 2012 to November 20, 2014, the date on which expanded DACA was announced. However, this suggestion was not adopted.
Application Grace Period
USCIS indicated that they will release an updated Form I-821D, which will change to reflect the expanded DACA guidelines. USCIS responded to advocacy and agreed to continue accepting the previous version of the form for a 2 month period. Presumably this would only apply to applicants who are eligible under the original 2012 guidelines.
Absences and Continuous Residence
Under the current DACA guidelines, any absence that occurs after August 15, 2012 without advance parole breaks continuous residence and bars DACA eligibility. The February guidance moved this date, so that absences after January 1, 2014, without advance parole, break continuous residence. Absences that occur between January 1, 2010 and January 1, 2014 may be acceptable if they are considered brief, casual, and innocent. Additionally, any absences from the U.S. without advance parole would disqualify an applicant from DACA renewal.
Concurrent Advance Parole Requests
The February guidance allows applicants to submit a request for DACA and advance parole at the same time. USCIS would first adjudicate the DACA application. Then, if the DACA request is granted, the advance parole request would be adjudicated. The requirements for applying for advance parole were unchanged. Applicants would still have to demonstrate that their proposed travel is related to a qualifying humanitarian, education, or employment related purpose.
Domestic Violence Significant Misdemeanors
USCIS noted that in evaluating whether an offense of domestic violence triggers the significant misdemeanor bar, the adjudicator should consider whether the applicant was also a victim of domestic violence as a mitigating factor.
The current FAQ indicates that renewal case status inquiries may be submitted after the case has been pending more than 105 days. This language was omitted from the February update.
Additional Guidance on DACA Termination
Current guidance simply stated that DHS has the discretion to terminate DACA at any time, with or without a Notice of Intent to Terminate. The February FAQs provided examples of when DHS may terminate DACA, including: if the request was approved in error; the applicant committed fraud in the request for DACA; or the individual committed a disqualifying offense or otherwise poses a threat to national security or public safety. Additional guidance states that in most situations, USCIS will issue a Notice of Intent to Terminate before issuing a final termination notice. If ICE or CBP issues a Notice to Appear (NTA), the DACA grant automatically terminates as of the date the NTA was issued. Traveling outside the U.S. without advance parole will also terminate a DACA grant automatically.
Policy on G-28s and Group Processing
USCIS addressed whether attorneys and BIA accredited representatives must file G-28s in a group processing or workshop setting, where the legal service provider does not provide ongoing representation. The current FAQs state that USCIS does not intend to initiate disciplinary proceedings against practitioners based solely on the failure to submit a G-28 in relation to pro bono services provided at group assistance events. The February guidance additionally suggests that legal service providers should assess the nature and type of service provided to determine whether it is appropriate to provide potential applicants with a letter noting the limited extent of representation or whether the service provider should complete and sign the preparer section of the I-821D.