On January 10, 2018, Judge Alsup of the Northern District of California issued a preliminary injunction in Regents of the University of California, et al. V. Department of Homeland Security requiring USCIS to resume accepting certain DACA applications. See our practice advisory for more information. We will continue to provide updates as the situation develops.
What does it mean that DACA has been rescinded?
On September 5, 2017, the Department of Homeland Security (DHS) issued a memo formally rescinding the June 15, 2012 memorandum that created DACA and announcing its wind down. DHS also published a set of Frequently Asked Questions. Under the new policy: 1) everyone who currently has a valid DACA grant will maintain their deferred action and employment authorization until these documents naturally expire; 2) pending DACA requests accepted on or before September 5, 2017 will be adjudicated; 3) no new initial applications will be accepted after September 5, 2017; and 4) DACA recipients whose current status expires between September 5, 2017 and March 5, 2018 can seek renewal if they do so by October 5, 2017. DHS will not proactively provide DACA requestor information to Immigration and Customs Enforcement (ICE) unless the person poses a threat to public safety, national security, or meets the criteria for issuance of a Notice to Appear. DHS reserves the right to terminate individual DACA grants on a case-by-case basis. Each of these policies is described in more detail below.
The administration has tasked Congress with taking legislative action to provide permanent immigration relief to Dreamers between now and March 5, 2018.
How does this affect clients who currently have DACA?
Those who currently have DACA will maintain their deferred action and employment authorization until the date their Employment Authorization Document (EAD) expires. DACA recipients should keep proof of their unexpired DACA grant, including their EAD and a copy of their latest approval notice showing valid deferred action. Lost, stolen, or destroyed EADs may be replaced by filing a new form I-765 along with the $495 application fee. Replacement EADs will reflect the same expiration date as the original document and will not extend DACA validity.
DHS retains the authority to deny DACA requests or revoke individual DACA grants based on discretion. See the section on enforcement risks below.
The new policy includes a grace period for those whose DACA grants are set to expire within 6 months. Only DACA recipients whose deferred action and EAD will expire between September 5, 2017 and March 5, 2018 can apply for a two-year renewal of DACA and work authorization. These clients have until October 5, 2017 to submit the renewal application. Anyone whose DACA and EAD expire after March 5, 2018 will not be eligible to renew. Their deferred action and employment authorization will end as soon as it expires.
How will this affect pending DACA applications?
USCIS will continue processing initial and renewal DACA requests that were properly filed and accepted at the USCIS lockbox – not just postmarked – on or before September 5, 2017. Those who receive approval will be issued deferred action and work authorization valid for a two-year period. They will not be allowed to renew their DACA grant or EAD after expiration.
Can former DACA recipients who have let their deferred action lapse still receive DACA?
Yes, but only if they have already filed an initial or renewal request that was accepted by USCIS on or before September 5, 2017.
As noted above, only a narrow class of DACA holders may still file renewal requests. Someone who was previously granted DACA but whose deferred action expired before September 5, 2017 is not considered a current DACA recipient and is not eligible to file an initial or renewal request after September 5, 2017. Those whose grants will expire between September 5, 2017 and March 5, 2018 may file renewal requests by October 5, 2017.
What is the new DHS policy on advance parole travel documents for DACA recipients?
Starting September 5, 2017, USCIS is no longer processing any Form I-131 applications for advance parole associated with DACA. Any advance parole applications that were pending on September 5, 2017 will be administratively closed and associated fees will be returned to applicants. DHS has indicated it will continue to honor the validity of advance parole documents previously issued to DACA recipients. Current DACA recipients with a valid advance parole document may travel within the approved dates. However, Customs and Border Protection (CBP) officers at the port of entry retain their authority to make inadmissibility determinations and to exercise discretion in assessing a DACA grantee’s eligibility to be paroled back into the country. See the “Best Practices” section below for additional recommendations regarding advance parole.
Will information about DACA requestors or recipients be shared with ICE for enforcement?
The original 2012 DACA policy, now revoked, protected the requestor’s personal information from disclosure to ICE for enforcement purposes unless the requestor met the USCIS criteria for issuance of a Notice to Appear (NTA). The most recent NTA guidance (www.uscis.gov/NTA) was issued in 2011. Information provided in the DACA application regarding family members was also protected from disclosure to ICE for enforcement purposes. This confidentiality policy applied even when a DACA request was denied.
In its September 5, 2017 FAQ, DHS describes a new confidentiality policy in two situations. First, if an individual’s DACA grant expires, USCIS will not proactively share his or her personal information with ICE or CBP for enforcement purposes unless the requestor meets the criteria in the current NTA guidance. Second, when USCIS denies a pending request, it will not provide the requestor’s information to ICE or CBP unless it determines that he or she poses a risk to national security or public safety or meets the NTA guidance criteria. Note that the 2011 NTA guidance, which was referred to in the previous USCIS confidentiality policy, is subject to change at any time.
What enforcement risks will individuals face once their DACA expires?
Current enforcement priorities, identified in a January 25, 2017 Executive Order and February 20, 2017 DHS memorandum, are quite broad and essentially include all undocumented individuals. Those with any prior involvement in the criminal justice system and those with prior removal orders are at greater risk of enforcement. However, the DHS FAQs on DACA rescission maintain that referrals for enforcement will be made according to the 2011 USCIS criteria for NTA issuance and do not reference the enforcement priorities.
DHS also reserves the right to terminate or revoke individual DACA grants. Recipients who are at risk of DACA termination include those who have been convicted of a felony, significant misdemeanor, or three or more non-significant misdemeanors. DACA holders who have been involved with gangs or who are suspected gang members are also at risk of being considered a threat to national security or public safety and having their DACA grant terminated. The criteria set forth in the 2011 NTA guidance restricts issuance of an NTA or referral to ICE to cases that involve public safety threats, criminals, and aliens engaged in fraud. While there is some overlap between the grounds for termination and the NTA issuance criteria, they are not identical so ICE could still issue an NTA if they receive information about a DACA recipient from a source other than USCIS.
How will losing DACA affect my clients’ eligibility for other immigration benefits?
Screening for permanent relief should include an analysis of inadmissibility issues. To qualify for most immigration benefits, a person cannot be inadmissible under the grounds contained in INA § 212. Because DACA was an act of prosecutorial discretion - not an immigration benefit, applicants were not required to demonstrate admissibility in order to receive DACA but they will have to for some types of immigration relief.
Those who are over the age of 18 will begin to accrue unlawful presence for purposes of the three and ten year inadmissibility bars under INA § 212(a)(9)(B) once their deferred action expires. Clients should be advised that leaving the U.S. without advance parole after accruing a certain amount of unlawful presence will trigger this ground of inadmissibility. The person would remain ineligible for immigration benefits including family-based adjustment or consular processing for 3 or 10 years unless he or she qualifies for a waiver of inadmissibility. Those who lose DACA will resume accruing unlawful presence for purposes of the permanent bar under INA § 212(a)(9)(C).
Remember that the criminal bars to DACA and the criminal grounds of inadmissibility and deportability do not overlap. It is possible that an individual’s criminal history was not disqualifying for DACA but makes him or her inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2).
How will losing DACA affect my clients’ employment?
Those with a current EAD may continue to work lawfully unless and until their EAD is either revoked or expires. Employees are not obligated to inform employers that they obtained work authorization through DACA or that DACA has been rescinded. We do not expect the federal government to notify employers that an employee’s DACA status has expired or been terminated.
Employers are required to verify employment authorization when they hire a new employee or when an EAD is set to expire. In those circumstances, employers may ask an employee for proof of valid work authorization. However, employers do not have the right to question employees about the basis of their valid work authorization. Nor do they have the right to discriminate against employees on the basis of citizenship or immigration status.
Can clients continue to use their SSNs once their DACA lapses?
DACA recipients who have not yet applied for a Social Security number (SSN) may wish to obtain one prior to the expiration of their EAD. Validly issued SSNs are permanent and will remain valid, even after a DACA recipient loses work authorization. Social security cards issued to DACA recipients are restricted with the annotation: “Valid for work only with DHS authorization.” A restricted card indicates to the employer that its holder requires additional proof of work authorization in order to work lawfully. However, so long as the SSN was validly issued, it may still be used for purposes other than employment, such as banking, housing, and filing taxes. In addition, DACA recipients remain entitled to any qualifying quarters earned for purposes of future Social Security and Medicare benefits.
Should DACA recipients continue to pay taxes after losing work authorization?
The tax laws that apply to U.S. citizens and permanent residents also apply to DACA recipients and others without lawful status. Those earning income above a certain amount are required to file taxes. Filing taxes as required could also be helpful when applying for future immigration benefits. For instance, it can serve as proof of continued residence in the United States and show “good moral character” if the individual is later eligible to naturalize. DACA recipients may continue to use their validly issued SSNs when filing taxes even once their DACA has lapsed. Currently, information provided to the IRS is not shared with ICE.
Can clients continue to use driver’s licenses after their deferred action expires?
Policies on driver’s licenses and state-issued identification cards vary by state. Most driver’s licenses issued to DACA recipients typically remain valid until their expiration date. However, representatives and clients should check with their state’s motor vehicle agency and stay apprised of any changes to state laws. DACA recipients may consult CLINIC’s map of the states that currently allow residents to apply for a driver’s license regardless of immigration status.
How will losing DACA impact my clients’ eligibility for other state public benefits?
Eligibility of DACA recipients for public benefits varies by state. DACA recipients who currently receive in-state tuition, state health coverage, or state unemployment insurance may lose their eligibility for those benefits upon the expiration of their deferred action. For example, students at state universities may no longer qualify for in-state tuition or non-federal financial assistance once their DACA lapses. While some states allow undocumented students to pay in-state tuition, they generally require the student to have resided and attended high school in the state for a certain amount of time.
Best Practices for Advocates
- Identify clients for renewal eligibility. Immediately review your caseload to contact those clients who are eligible to renew DACA, i.e. those with EADs expiring between September 5, 2017 and March 5, 2018. Determine if the volume of potential applicants is such that you may need to consider a workshop model or recruiting pro bono counsel to assist clients in submitting timely renewal applications. Prepare renewal requests for these applicants as soon as possible since they must be accepted at the appropriate USCIS lockbox by October 5, 2017.
- Advise clients about traveling on Advance Parole. Some DACA holders who are immediate relatives may become eligible for adjustment of status after traveling abroad and returning on valid advance parole. Make sure clients weigh the potential benefits of travel with advance parole against the possible risks. While DHS has stated it will honor valid advance parole travel documents, inform clients of the consequences of travel if they are an enforcement priority due to criminal arrests, convictions, prior fraud, prior deportations, or alleged gang activity; have potential inadmissibility issues; or have unexecuted prior orders of removal. Remind clients that USCIS has the authority to revoke or terminate an individual’s advance parole document at any time and CBP retains ultimate discretion on whether to allow entry. For clients who already have advance parole and choose to travel in spite of the risks, consider asking them to sign a written acknowledgement confirming that they have been informed of the risks inherent in leaving the U.S. even with valid advance parole.
- Screen clients for immigration relief. DACA recipients should be screened for permanent immigration relief. In some cases, recipients may have requested DACA pro se without an in-depth screening for immigration options. In other cases, changed circumstances may make a DACA recipient eligible for remedies that were previously unavailable. Perhaps a client is now eligible to be the beneficiary of an immediate relative petition, file a VAWA self-petition, or apply for asylum based on changes in his or her home country or personal circumstances. Do not overlook forms of relief that are only available to clients in removal proceedings like non-LPR or VAWA cancellation. Visit CLINIC’s website to access our screening tools and continue to monitor political developments in the event that Congress passes new legislation that would provide relief to DACA recipients.
- Screen clients for exposure to enforcement. Clients with criminal histories, prior removal orders, or gang involvement may face a higher risk of enforcement. Warn DACA clients who disclosed any prior criminal history about the heightened risk of enforcement. Remind all DACA clients that future encounters with law enforcement could result in removal proceedings and explain the importance of seeking immigration legal advice as soon as possible following such interactions.
- Those who have a final order of removal (or exclusion or deportation) from an immigration judge but never departed the U.S. are at greater risk of enforcement under the current enforcement priorities. Explain to clients that this includes those who failed to depart after being ordered removed in absentia or after accepting voluntary departure as well as those with unexecuted orders who have obtained administrative closure. If a client’s proceedings were reopened and administratively closed, the ICE Office of the Chief Counsel can move to re-calendar the case at any time. If proceedings were reopened and terminated, there is no longer an order to execute and a new removal proceeding would be required.
- If a DACA grantee was deported or subject to an expedited removal order, and then returned to the U.S. unlawfully, he or she is subject to reinstatement of removal, which allows ICE to reinstate the prior order and summarily deport the individual without the right to apply for most forms of relief or appear before an immigration judge.
- As part of screening clients for other immigration relief, determine whether there are grounds for filing a motion to reopen and terminate proceedings. For programs without Fully Accredited Representatives or removal defense attorneys, refer these clients immediately to qualified practitioners.
- Provide Know Your Rights information to all DACA clients and family members. It’s impossible to know whether DHS may change its confidentiality and/or enforcement policies as they relate to DACA grantees. All clients should be prepared to exercise their rights if ICE comes to their home or workplace. Know Your Rights information is available at: https://cliniclegal.org/resources/know-your-rights
- Consider referring clients to employment experts for more information. If clients need more information about how the employment laws impact their individual situation, you may wish to refer them to employment counsel or encourage them to contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1-800-255-7688 or www.justice.gov/crt/about/osc/). CLINIC’s Guide to Workplace Rights for Immigrants is available at: https://cliniclegal.org/resources/know-your-rights-workers
- Confirm the eligibility requirements for any state benefits your clients receive. Eligibility requirements for state and local benefits vary. Help clients whose DACA will be lapsing investigate whether their state makes benefits available to all residents, regardless of immigration status.