Deferred Action for Childhood Arrivals (DACA)

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Three-year DACA EADs

Recently, we sent all affiliates a notice informing them of the July 17th deadline for returning three-year EADs requested by USCIS in order to comply with the Texas court’s February 16, 2015 injunction. USCIS reports that there are still approximately 900 DACA recipients who have not yet returned their three-year EADs. We have been informed that USCIS has already taken additional steps to direct the return of the three-year EADs and is planning further adverse actions in the near future. These actions may include:

  • USCIS phone calls to non-compliant DACA recipients with three-year EADs;
  • USCIS visits to the residences of DACA recipients who have not yet returned their three-year EADs;
  • Additional letters from USCIS instructing DACA recipients to visit the local USCIS field office to relinquish their three-year EAD or certify that it has been returned;
  • Other adverse actions that may affect an individual’s DACA and work authorization

It is critical that you help your DACA clients understand whether or not they need to return their three-year EAD and, if so, how to appropriately respond to contact from USCIS about this issue. 

 
Resources

New USCIS Online Tool to Verify Whether a Person Needs to Return Their Work Permit

Recorded Affiliate-Only Webinar: 3-Year EADs and Adverse Actions for Certain Unresponsive DACA Recipients

Community Education Flyer: Do you need to return your DACA 3-year work permit?
Download in English / Spanish

USCIS “Quick Facts” Website

Fact Sheet from USCIS: Important Information for Some DACA Recipients Who Received Three-Year Work Authorization 
Download in English / Spanish / Chinese / Korean / Tagalog / Vietnamese

Deferred Action for Childhood Arrivals (DACA) Information and Resources

On June 15, 2012, the Secretary of the U.S. Department of Homeland Security (DHS) issued a memorandum allowing individuals who came to the U.S. as children and meet certain guidelines to apply for Deferred Action for Childhood Arrivals (DACA).  A person who is granted DACA receives permission to live and work in the U.S. for two years (may be renewed).  If someone is approved for DACA, s/he may apply for a social security number and in most states, a driver’s license.

 

Executive Action Updates

 

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DACA Processing Delays and Tips for Escalating Cases

In August 2016, USCIS announced certain Deferred Action for Childhood Arrival (DACA) cases filed between February 14, 2016 and May 14, 2016 have been delayed due to technical issues. USCIS officials advised these cases were placed on temporary hold while the technical issues were resolved. Case processing has now been fully restored. However, CLINIC has received dozens of reports of cases impacted by the processing delays, many resulting in lapses of Deferred Action’s protection from deportation and work authorization. Further, CLINIC received reports from representatives about issues escalating cases through USCIS’ National Customer Service Center. We have escalated the reported cases and customer service issues with USCIS.

Last week, USCIS updated its DACA Renewals page with new language and instructions for DACA recipients to guide their inquiries to the Online form at the Customer Contact Center. The posting reads:

Sept. 12, 2016 Update: USCIS’ current goal is to process DACA renewal requests within 120 days. If your renewal request has been pending more than 105 days and you have not heard from us, please feel free to contact us. Please contact us through the USCIS Customer Contact Center or by sending a message from your USCIS online account inbox.

 

Case Escalation

We outline the steps for case escalation, which can be used for any DACA case that has been pending for over 105 days, and offer tips below.

  1. Check the status of your client’s case (both the I-821D and I-765) via the online case status system: egov.uscis.gov/casestatus/landing.do.
     
  2. If the case has been pending for over 105 days, call the National Customer Service Center at 1-800-375-5283 using the prompts provided below:
    • For pending DACA cases:
      • Press 1 for English or 2 for Spanish;
      • Then press 2 for latest information on pending case;
      • Then press 1 to enter your receipt number;
      • Then after getting the status of your case you can choose 3 to talk to a Customer Service Representative.
    • For online queries, submit to the Customer Contact Center at: my.uscis.gov/account/needhelp.
    • CLINIC’s Tips on contacting the NCSC can be found at: cliniclegal.org/resources/articles-clinic/advocates-corner-tips-contacting-uscis. Please be certain to prepare before your call by having all the case details on hand and take notes during the call. Important items to note are call date and time, name or ID number for the USCIS Information Officer, and the service request number (SRMT).
  3. Let CLINIC know about your delay. The more information we have, the stronger a case we can make with USCIS.

 

CLINIC Affiliates: We can help!

If you are a CLINIC affiliate, use our webform to submit your problem to our advocacy department. We may be able to assist you individually.  If your client is in danger of losing their job due to a processing delay, please contact CLINIC’s advocacy department at Advocacy@cliniclegal.org.

 

Other tips on processing delays and escalating cases

File early! USCIS currently allows applicants for renewal to file within 150 -120 days of their DACA expiration date. CLINIC strongly recommends filing the renewal application as soon as possible within this timeframe.

Know before you file. Consult with your client before filing the renewal application to identify factors that may lead to delays in processing. Such factors include new criminal background issues such as an arrest or conviction that occurred after the initial DACA was approved and travel abroad on Advance Parole. If your client meets one of these factors, it will be important to file as early as possible (150 days before expiration) and inform your client that their case may be delayed.

Report Your Case Issues and Seek Assistance. If you have tried to escalate your case with USCIS, but have not seen progress, you may contact the CIS Ombudsman’s office to request assistance.

  1. Review Pre-submission Checklist
  2. Submit an electronic Form DHS-7001 through Ombudsman Case Assistance Online. When you submit your case assistance request, you should include as much detail as possible about your efforts to resolve the case with USCIS.
  3. The Ombudsman’s office automatically assigns a case number once submission has been completed with an acknowledgement email sent to the e-mail address provided on the form.

Don’t wait to escalate. Use your case management system or the USCIS case system to track cases and monitor the status of your clients’ pending cases. If the case is pending for 105 days, we recommend that you contact USCIS right away. Don’t wait to inquire on the day before your client’s EAD is about to expire.

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Supreme Court Decision in U.S. v. Texas Impedes Implementation of DAPA, Expanded DACA

On June 23, the U.S. Supreme Court issued its tie (4-4) decision in the United States v. Texas litigation.  The Court’s split decision means that the preliminary injunction issued by the U.S. District Court in Texas remains in effect and expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) remain on hold while the case is returned to the lower court. The decision does not set a precedent in this case nor does it impact other initiatives under the President’s November 2014 Executive Actions, including the Enforcement Priorities, nor does the decision effect the existing DACA program from 2012. The split decision does not become final until for 25 days from the ruling, July 18th. During that time either the U.S. Department of Justice or the intervenors may file a Motion for Rehearing which would occur once the seat left by Justice Scalia’s death is filled.  Despite many calls for rehearing due to the vacancy on the Supreme Court, it is highly unlikely that the vacancy will be addressed until after the Presidential elections are decided in November. If the Motion for Rehearing is not filed, the case will return to the U.S. District Court in Texas to proceed with the merits. United States v. Texas could appear before the Supreme Court again.

In the meantime, advocates expressed their disappointment with the decision and continued to push for comprehensive immigration reform and urge for the Administration to halt deportations on DACA and DAPA eligible individuals. Following the Court’s decision, CLINIC hosted a webinar for its affiliates and posted materials on the website. In addition, the Committee for Immigration Reform Implementation (CIRI) released rapid response materials and a webinar, as did the Justice for Immigrants coalition. CIRI’s Advocacy Working Group have provided recommendations on immediate steps the Department of Homeland Security (DHS) may take to address fear and confusion in the wake of the decision.  Further, in response to the decision, CIRI’s Advocacy Working Group is releasing a report on specific, concrete steps that DHS can take to enhance and improve implementation of DACA 2012. If you would like to receive a copy as soon as it is released, email us.

CLINIC would like to hear from your organization about the impact of the Court’s decision on your community, your outreach efforts and plans to continue to advocate for comprehensive immigration reform. Please share your thoughts and experiences with our Advocacy team via email

Programs: 

Administrative Advocacy

Jill Marie Bussey

DACA 3-Year Recall

In connection with the State of Texas v. U.S. litigation, USCIS recalled over 2,600 grants of Deferred Action Childhood Arrival (DACA) and work authorization in May 2015. USCIS increased its recall efforts dramatically following a Court Order issued on July 7, 2015. CLINIC’s response to the recall was comprehensive and collaborative, utilizing resources and the expertise of six departments: Advocacy, Capacity Building, Communications, Legalization, Operations and Training and Legal Support (T&LS). CLINIC efforts included creating a special webpage with recall resource materials; conducting a comprehensive webinar; establishing a special email address for affiliate queries; developing public outreach flyers in English and Spanish; sending over 8 email blasts to affiliates with updated recall information; coordinating with affiliates in impacted communities; providing individual case support; and engaging in direct public outreach through social media and other communications outlets.

CLINIC opposed the recall and any resulting terminations. Acknowledging the inevitability of the recall due to the Court Order, CLINIC focused its advocacy efforts on providing DHS and USCIS officials with constructive feedback on the implementation of the recall, providing information and support to affiliates, and outreach to the community. Over the course of three months, CLINIC worked closely with officials at DHS and USCIS to offer tangible feedback on the implementation of the recall with solid case examples that supported requests for recall process change and refinement. CLINIC took a lead role in each of the sixteen stakeholder calls held during the recall process.

Further, as co-chair of the Committee for Immigration Reform Implementation (CIRI) Advocacy Working Group, CLINIC’s Advocacy team led coordination efforts and communications to help inform, enhance and align advocacy efforts among CIRI. CLINIC worked closely with affiliates to support, advise, and assist them and their clients to understand and take necessary actions as well as to responsibly spread the word in the community.

CLINIC and its affiliates’ efforts throughout the summer helped result in 99.2 percent compliance with the recall. Of the 22 terminations of status issued, 12 were reinstated. As of today, all 3-year DACA grants and work authorization cards that were subject to the recall have been accounted for.

Enforcement Priorities

On June 17, 2015, DHS issued a list of Frequently Asked Questions (FAQs) relating to the new immigration enforcement priorities memo issued by the Obama Administration on November 20, 2014. Since the Priority Enforcement Program (PEP) was established on January 5, 2015, CLINIC’s Advocacy team and its partners have advocated for consistent implementation of these new enforcement priorities. In April, CLINIC joined over 100 immigrant advocates in sending a letter to DHS Secretary Johnson summarizing concerns based on lessons learned from the 2011 prosecutorial discretion initiative, providing examples of inconsistent application of the priorities, and offering recommendations.

Following the release of the FAQ, CLINIC provided a detailed analysis of the guidance and held a webinar for affiliates. While the FAQs clarify several key terms in the memo, notable issues remain unclear.

Please continue to share individual cases where ICE has failed to exercise prosecutorial discretion with CLINIC’s Advocacy team. If you have a case example of inconsistent application of prosecutorial discretion, please contact CLINIC’s Advocacy team with an email entitled “Prosecutorial Discretion Example” at: advocacy@cliniclegal.org.

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DACA Clients with Three-Year Work Permits

Jen Riddle

During July, U.S. Citizenship and Immigration Services (USCIS) undertook a number of extraordinary actions to urgently retrieve approximately 2,600 three-year work permits it claims were erroneously issued or mailed to recipients of Deferred Action for Childhood Arrivals (DACA) and to replace them with two-year permits. These actions were an attempt by USCIS to comply with a February 16, 2015 injunction issued by a U.S. District Court in the Texas v. United States lawsuit challenging the expanded DACA program and creation of the Deferred Action for Parents of Lawful Americans and Lawful Permanent Residents (DAPA). 

These actions only impact a small percentage of the DACA recipients who received three-year work permits, including approximately 2,100 DACA recipients whose deferred action and work permits were approved right before the February 16 injunction but whose actual work permit cards were mailed after the injunction.  It also affects approximately 500 recipients whose permits were approved before the injunction, were returned to USCIS as undeliverable, and were sent again after the injunction. The remaining 108,800 DACA recipients who received three-year permits are entitled to keep them.

Through letters, phone calls, text messages, and home visits, USCIS reached out to this limited group of DACA recipients to request that they immediately return their three-year permits. USCIS threatened to take adverse action against those who failed to comply by July 30, 2015, including terminating the DACA grant and work authorization. These unprecedented actions by USCIS have caused significant concern and confusion among immigrants and their representatives. If you continue to have any questions about which DACA clients need to return their three-year permits and which do not, please consult this dedicated section of CLINIC’s website where we continue to post updates and resources on this issue: https://cliniclegal.org/resources/three-year-daca-eads.

CLINIC continues to engage in advocacy with USCIS on this issue based on the experiences of its affiliates who have consistently provided ongoing information and case examples to keep us up to date about developments on the ground. Please continue to keep us informed and ask case specific questions by contacting Advocacy Attorney, Jill Marie Bussey, at jbussey@cliniclegal.org.  Also, remember to sign up for CLINIC’s DACA listserv by sending an email to clinic_daca-subscribe@yahoogroups.com.

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3-Year EADs and Adverse Actions for Certain Unresponsive DACA Recipients

Starting July 16th, US Citizenship and Immigration Services (USCIS) will begin home visits to certain DACA recipients who have still failed to return their three-year employment authorization documents (EADs) that were received in error.  In addition to these home visits, USCIS has begun issuing Notices of Intent to Terminate (NOIDs) warning that individuals who do not return their three-year EAD by July 30th, 2015 will have their DACA and EAD terminated.

On this webinar, panelists described the population of DACA recipients that are impacted by this recall by USCIS.  In addition, panelists give an overview of current USCIS communications on the recall, describe what to expect during a home visit, and how affiliates can provide community education and outreach.  Time was also reserved for questions.

Remember to sign up for CLINIC’s DACA listserv by sending an email to clinic_daca-subscribe@yahoogroups.com.

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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.

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You Can Still Apply for DACA - Community Education

Expanded DACA and DAPA are on hold, but you can still apply for DACA under the original guidelines.  Find out who qualifies and how you may be able to take steps to become DACA eligible.  CLINIC immigration attorney Ilissa Mira and BIA Accredited Representative Maciel Jacques share some tips on learning about your immigration options and preparing for the future.

 

View this Video in English

 

View this Video in Spanish

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Helping Your Immigrant Students and School Community: Updates on Deferred Action Programs for Undocumented Youth and Family

This webinar is for educators, counselors, and others working in schools and adult education programs who want to learn more about immigration relief for undocumented students and their families.  Deferred Action for Childhood Arrivals (DACA) and Deferred Action for the Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) programs protect undocumented students and parents from deportation so that they can work legally and pursue their educational goals. This webinar provides an overview of DACA and DAPA, including who may be eligible, and ways that educators can help community members access trusted information and locate appropriate legal assistance.

Held on: 5/6/15

Presenters: Ilissa Mira & Jennifer Riddle, CLINIC Training and Legal Support Attorneys

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What to Expect When Expanded DACA Opens Again

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.

 

DACA Renewal

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.    

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Frequently Asked Questions: DAPA, Expanded DACA, and the Court Injunction

Visit Our DACA Resource Center

The U.S. Supreme Court on June 23rd kept in place for now the lower court injunction that blocked implementation of the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The Court was not able to break a 4 to 4 tie, and therefore its decision will have no precedential effect.  Nevertheless, it means that the lower court injunction will likely continue in place until the Court hears the case again.

 

What is the lawsuit about?

The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged two aspects of the immigration initiatives that President Obama announced on November 20, 2014. Specifically, the states alleged that the expanded DACA and DAPA programs were created in violation of the law and would have caused economic injury to the states that must finance the education, protection, and issuance of driver’s licenses to future recipients of deferred action under these programs.

 

What was the lower court’s decision?

On February 16, 2015, the federal district court in Brownsville, Texas issued a preliminary injunction that blocked implementation of the expansion of DACA and the implementation of DAPA. The judge found that the federal government violated procedural requirements under the Administrative Procedure Act by not using formal rulemaking procedures in creating these initiatives.  This decision was appealed to the Fifth Circuit Court of Appeals, which upheld the lower court; that decision was then appealed to the Supreme Court.

 

Does the injunction impact all executive actions on immigration announced by the President on November 20, 2014?

No, the injunction only impacts DAPA and expanded DACA. It does not block any other changes to immigration policies announced by the President last November and laid out through various DHS memoranda.

For example, the lawsuit does not affect the following:

  • Expansion of the provisional waiver program that allows family members to waive the  unlawful presence bar before leaving the United States
  • Guidance clarifying what constitutes extreme hardship for those applying for waivers of certain grounds of inadmissibility (fraud, crimes, and unlawful presence)
  • The “parole in place” program for individuals with family members in the U.S. Armed Forces
  • Guidance clarifying eligibility for advance parole
  • Replacement of the Secure Communities with the Prioritized Enforcement Program, and
  • New immigration enforcement priorities that went into effect on January 5, 2015.

 

How does the injunction impact clients who want to apply for DACA?

The injunction does not affect the original DACA program that was created in 2012.  Anyone who meets the program’s criteria established in 2012 may continue to apply – both first-time applicants as well as DACA recipients who seek to renew their deferred action and employment authorization. However, clients who were hoping to apply for DACA under the expanded criteria announced on November 20, 2014 are not eligible to apply.

 

How should I advise clients who already have DACA and want to renew?

Clients granted DACA under the program’s 2012 criteria may continue to renew their deferred action and employment authorization using Form I-821D.  Beginning November 20, 2014, USCIS began granting DACA and work permits to initial and renewal applicants in three-year increments.  DACA recipients who were granted three-year work permits prior to the February 16, 2015 injunction may continue to use them.  However, following the injunction, USCIS reverted to issuing two-year grants of deferred action and work authorization until a court overturns the decision.

 

If my client received a three-year work permit, does he or she need to return it to USCIS?

This depends on the date your client’s initial or renewal DACA was approved.  Only three-year DACA approvals and work permits issued after the February 16, 2015 injunction were issued in error.  For those cases, USCIS has instructed DACA grantees to return the erroneously-issued three-year work permit and approval notice and has replaced them with an updated two-year work permit and approval notice.  DACA applicants who were approved on or before February 16, are entitled to keep their three-year work permits.  For more information, see the USCIS website.

 

What should I advise clients who want to apply for expanded DACA or DAPA?

Clients who qualify for expanded DACA or DAPA should also be screened for eligibility for other types of immigration relief.  Advise clients to continue gathering documents necessary to show they meet the criteria for expanded DACA or DAPA and to save money for the $465 application fee. Click here for a customizable checklist of documents for potential DAPA clients. Ask clients for any records related to prior immigration violations as well as records of any arrests, citations, jail time, detentions, and court proceedings.  If your client’s immigration history or criminal record history is not clear, consider filing Freedom of Information Act (FOIA) requests or FBI record requests so that you will have the information you need by time the programs are implemented.  Finally, remind clients not to leave the country without permission, not to seek advice from unauthorized practitioners, and to check back with you for updates on when expanded DACA and DAPA implementation may proceed.    

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) officers have been instructed to identify individuals in detention or removal proceedings who may be eligible for expanded DACA or DAPA, and to exercise prosecutorial discretion, which may include seeking administrative closure or termination of proceedings. However, we recommend affirmatively contacting an ICE officer or the trial counsel to request termination of proceedings or administrative closure using the protocols described on the ICE Executive Action website.  As part of requesting an exercise of prosecutorial discretion in your client’s favor, be prepared to argue that your client is not included in one of the enforcement priority categories. Finally, remember that clients may still request deferred action, more generally, under the process that has existed before DACA was created by submitting a request to the relevant DHS agency.

 

Resource updated 7/6/2016

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Executive Action Expanding Deferred Action for Childhood Arrivals (DACA) Frequently Asked Questions

Visit CLINIC's Administrative Relief Center

 

On November 20, 2014, President Obama announced executive actions to change immigration policy.  One of these reforms will expand the existing DACA program, first established on June 15, 2012 to provide deferred action and work permits to people who arrived in the U.S. as children and meet certain other requirements.  Other reforms fall into three main categories: (i) changes to immigration enforcement policy; (ii) expanding deferred action to certain parents of U.S. citizens and lawful permanent residents; and (iii) changes to our legal immigration system.  This FAQ focuses exclusively on changes to the existing DACA program described in a Memorandum by DHS Secretary Jeh Johnson entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (“Deferred Action Memo”).

How does the President’s executive action on immigration change the current DACA program?

The current DACA program was established on June 15, 2012 and provides deferred action and work permits for a two year period.  To be eligible, a person must meet the following criteria:

  • Entered the U.S. prior to age 16
  • Was under the age of 31 as of June 15, 2012
  • Had no lawful status on June 15, 2012
  • Graduated from high school; obtained a GED; or currently enrolled in school
  • Had continuous residence in the U.S. from June 15, 2007 to the present
  • Was physically present in the U.S. on June 15, 2012 and at the time of making the request, and
  • Has not been convicted of a felony, misdemeanor, or three or more other misdemeanors; and is not considered a threat to public safety or national security.

The Deferred Action Memo made three changes to the existing DACA program: 

Eliminates the Age Cap

The current DACA program limits eligibility to people who were under the age of 31 as of June 15, 2012.  Going forward, this age restriction will no longer apply.  People who arrived in the United States before age 16 may qualify for DACA, even if they were over 31 as of June 2012. However, to apply for DACA with United States Citizenship and Immigration Services (USCIS), a person must be at least 15 years old, unless he or she is currently in removal proceedings or has a final removal or voluntary departure order.  The Deferred Action Memo does not change this requirement.

Adjusts the date-of-entry requirement

Current DACA guidelines require an applicant to prove continuous residence in the United States from June 15, 2007 to the present.  The new guidelines advance the continuous residence start date to January 1, 2010.

Extends deferred action and work authorization from two years to three years

Grants of deferred action and work permits will be for a three-year period, instead of two years.  This change became effective on November 24, 2014 for people who are approved for first-time DACA and DACA renewals on or after that date.

When will USCIS begin accepting applications under the new guidelines?

At this time, people cannot apply for DACA under the criteria announced in the new Deferred Action Memo.  USCIS will begin accepting applications no later than 90 days from the date of the announcement (by February 18, 2015).  USCIS will likely change the existing application form (Form I-821D) to reflect changes in the guidelines.  As with the current program, applicants will be required to pay a $465 application fee and undergo biometrics.  Visit www.uscis.gov and http://www.adminrelief.org/ for updated information.

If my client is eligible under the current guidelines, may he or she apply for initial DACA or renew DACA now?

Yes.  USCIS continues to accept initial and renewal DACA applications under the guidelines issued before November 20, 2014.  If your client qualifies for DACA under the original criteria, he or she does not need to wait until February 18, 2015, but may apply now.

My client is applying now for initial or renewal DACA.  If approved, for how long will deferred action and work authorization be granted?

The executive action extends the deferred action grant from two years to three.  This change is effective immediately.  In other words, for applicants with initial or renewal requests that were pending on November 24, 2014, USCIS will grant work authorization for a three-year period, rather than a two-year period. 

My client already renewed DACA before the President’s November 20, 2014 announcement.  How can my client get a new work permit valid for three years?

At this time, we don’t know what the process will be.  USCIS has announced that it is exploring how to extend two-year work permits already issued to DACA renewal recipients.  Visit www.uscis.gov and http://www.adminrelief.org/ for updated information.  In the meantime, two-year work permits issued under the previous guidelines continue to be valid through the expiration date indicated on the card.

Has the physical presence requirement changed?

The Deferred Action Memo does not directly address whether there will be a change to the current requirement that an individual was physically present in the United States on June 15, 2012.  The original physical presence requirement reflects the date the DACA program was first announced.  No guidance has been issued indicating that the physical presence date will change to reflect the date of the recent Deferred Action Memo - November 20, 2014.

Does the recent executive action change the existing criminal bars to DACA?

No, the criminal bars to DACA remain the same.  Guidance defining felonies, significant misdemeanors, and three or more non-significant misdemeanors (as they apply to DACA) are not changed by the executive action.    

My client may qualify for both DACA and DAPA.  What factors should we consider in determining which program to apply for?

Some people may qualify for both DACA and DAPA.  DAPA is a new deferred action program that benefits certain parents of U.S. Citizens or Lawful Permanent Residents who have continuously resided in the United States since January 1, 2010.  Guidelines for DAPA eligibility are set forth in the Deferred Action Memo.  Unlike DACA, DAPA does not include an education requirement.  Additionally, individuals may benefit from DAPA regardless of their age at the time they entered the U.S.  If your client qualifies for DACA under the original guidelines, she can apply now, rather than wait until May 19, 2015, which is the approximate date that USCIS will begin accepting applications for DAPA.

The ineligibility bars to DAPA are broader than those that apply to DACA, and cover both criminal offenses and immigration violations. Thus, individuals with certain immigration or criminal histories may be eligible for DACA but may be disqualified from DAPA.  Visit www.uscis.gov and http://www.adminrelief.org/ for more information on the DAPA program and the new DHS priorities for immigration enforcement.

Will parents of DACA grantees obtain any immigration benefits under the new policy?

The new deferred action programs do not provide immigration relief to the parents of DACA recipients.  Only parents of U.S. citizens and lawful permanent residents may qualify for Deferred Action for Parental Accountability (DAPA).

How will these changes impact a DACA recipient’s ability to travel on advance parole?

In Matter of Arrabally and Yerrabelly 25 I&N Dec. 771(BIA 2012), the Board of Immigration Appeals issued a precedent decision holding that travel abroad with advance parole is not considered a departure for purposes of the “three and ten year bars,” under INA Section 212(a)(9)(B)(i).  This case arose in the context of adjustment of status applications, and the USCIS Administrative Appeals Office (AAO) has since applied this analysis in several cases involving travel on advance parole by Temporary Protected Status (TPS) holders.  In practice, USCIS has also applied this analysis to DACA recipients returning to the U.S. under advance parole, although currently there is no formal guidance regarding this issue. 

In a memorandum entitled Directive to Provide Consistency Regarding Advance Parole (“Advance Parole Memo”), Secretary Johnson states that new written guidance will be issued clarifying that the Arrabally decision will apply in all cases where a person leaves the United States under a grant of advance parole.  The Advance Parole Memo does not make changes to the requirements that DACA recipients must meet in order to qualify for advance parole. Traveling outside of the United States can present other risks beyond the unlawful presence bars. DACA grantees should be screened for other grounds of inadmissibility, and should consult with an attorney before leaving the United States.

My client will be eligible for DACA once the new forms are released.  Are there things I can advise my client to do in the meantime to prepare?

Applicants will be required to pay a $465 application fee.  Advise clients to begin saving money now.  Clients can begin gathering documents to prove their identity and demonstrate they satisfy the education, date of entry, and continuous residence requirements.  Clients who have had prior encounters with law enforcement and/or immigration authorities should obtain their criminal records and information regarding their immigration history.  Advise clients not to travel abroad before they have obtained deferred action and advance parole.    

What if I have a client in immigration proceedings or in detention who meets the requirements for expanded DACA?

People who meet the new DACA guidelines may qualify for the program, even if they are in removal proceedings or are subject to a final order of removal.  The Deferred Action Memo directs Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to immediately identify people who meet the DACA criteria and refer them to USCIS for a deferred action determination.  This policy will apply to those who are currently in custody and those who are newly encountered.  ICE is also instructed to review pending removal cases and seek administrative closure or termination in cases where the person meets DACA eligibility guidelines.  People may then request DACA through USCIS.  

Under the current DACA procedures, people who are currently in immigration detention should identify themselves to their deportation officer, Jail Liaison, or local ICE Field Office Director.  For more information, visit ICE’s website at www.ice.gov/daca.

My clients are eligible for expanded DACA but worried they will be referred to ICE if the application is denied or if the DACA ends. What should I tell them? 

The information in a DACA request, including information about family members and guardians, will not be shared with ICE and CBP for the purpose of deportation unless the DACA applicant meets the criteria in November 2011 USCIS policy guidance governing the issuance of Notices to Appear (NTA).  According to the criteria, USCIS will refer an applicant to ICE in cases involving certain criminal offenses, a statement of findings substantiating fraud, or a threat to public safety or national security.

Many people fought hard for the creation of the DACA and DAPA programs.  Organizations and community members will continue to advocate for the extension of the DACA program.  Should DACA be terminated at some point, remind your client that people who are granted DACA are by definition “low priorities” for deportation.

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CLINIC Newsletter - November 2014 - VOL. XVIII No. 11

 In this issue…                       

BIA Issues Three Decisions on Recognition and Accreditation

Haitian Family Reunification Program To Be Implemented in 2015

News From the Catholic Network

Update from Ciudad Juarez  

USCIS Updates DACA FAQs

Immigration Updates

Law and Practice Feature

Question Corner

Technical Assistance and Trainings

Resources

Position Openings

                                                                                

Visa Bulletin                                                                                                                                                             

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USCIS Updates DACA FAQs

By Ilissa Mira

The USCIS updated its DACA FAQs on October 17 and 23, 2014, providing additional information on their policy toward temporary EAD extensions and the education requirement for renewal applicants.  Previous versions of the FAQs stated that USCIS may provide temporary EAD and deferred action extensions if they encountered delays in processing timely-filed renewal requests.  The latest changes to the FAQ state that USCIS will not temporarily extend deferred action and EADs when the delay is caused by the requestor’s failure to timely file between 120 and 150 days prior to expiration.

Additionally, USCIS will not provide short term extensions where delays are determined to be the fault of the applicant, including where the request is incomplete or the applicant failed to timely file; where USCIS requests additional evidence of eligibility; or where USCIS is unable to complete background checks. 

The new FAQs also explicitly state that requestors may qualify for renewal even if they are not currently in school. 

The chart below shows changes to the FAQs.  New language is highlighted in italics:

New FAQ (Oct. 17)

Q49:  When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?

A49: USCIS strongly encourages you to submit your Deferred Action for Childhood Arrivals (DACA) renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice. Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.  If you have filed your renewal request at least 120 days before your deferred action expires and USCIS is delayed in processing your renewal request, USCIS may provide you with DACA and employment authorization for up to an additional 120 days.

Please Note:  USCIS will not provide any such short-term deferred action and employment authorization when USCIS is delayed in reaching a final decision on your renewal request because, for example: 1) of factors within your control (such as failure to file the renewal request within the suggested timeframe or filing an incomplete renewal request); 2) USCIS has not been able to complete your background check; and/or 3) your renewal submission contained evidence that you may not satisfy the DACA renewal guidelines and USCIS must send you a request for additional information or explanation.

Old FAQ:

Q49:  When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)? 

A49:  USCIS encourages you to submit your request for renewal approximately 120 days (or 4 months) before your current period of deferred action under the Deferred Action for Childhood Arrivals (DACA) process expires.  If you have filed approximately 120 days before your deferred action and Employment Authorization Document (EAD) expire and USCIS is unexpectedly delayed in processing your renewal request, USCIS may provide deferred action and employment authorization for a short period of time until your renewal is adjudicated.  However, if you file your renewal request more than 150 days prior to the expiration of your current period of deferred action, USCIS may reject your submission and return it to you with instructions to resubmit your request closer to the expiration date.

 

New FAQ (Oct. 23)

Q50: Can I file a renewal request outside the recommended filing period of 150 to 120 days before my current DACA expires?

A50: Yes, you may submit your renewal request outside of the recommended filing window.

However:

  • If you file before the recommended filing window (meaning more than 150 days before your current period of DACA expires), USCIS may reject your submission and return it to you with instructions to resubmit your request within the recommended filing period.
  • If you file after the recommended filing period (meaning less than 120 days before your current period of DACA expires), USCIS will not consider providing you with any additional short-term period of deferred action and employment authorization before reaching a final decision on your renewal request. This will be true even if your current period of DACA expires while USCIS is considering your renewal request. 

 

If you file after your most recent DACA period expired, but within one year of its expiration, you may submit a request to renew your DACA. If you are filing beyond one year after your most recent period of DACA expired, you may still request DACA by submitting a new initial request.

 

New (Oct. 23)

 

Q54.  If I am no longer in school, can I still request to renew my DACA?

A54.  Yes. Neither Form I-821D nor the instructions ask renewal requestors for information about continued school enrollment or graduation. The instructions for renewal requests specify that you may be considered for DACA renewal if you met the guidelines for consideration of initial DACA, including the educational guidelines and:

  1. Did not depart the United States on or after August 15, 2012, without advance parole;
  2. Have continuously resided in the United States, up to the present time, since you submitted your most recent request for DACA that was approved; and
  3. Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and are not a threat to national security or public safety.

 

 

 

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CLINIC Newsletter - October 2014 - VOL. XVIII No. 10

In this issue…                        

Each of Us is a Masterpiece of God's Creation

Obama Announces In-Country Refugee Processing for Central American Children

News From the Catholic Network

Unaccompanied Children's Issues

Advocacy Update 

State and Local Issues

Law and Practice Feature

Immigration Law Updates

Question Corner

A lawful permanent resident files an I-130 for his spouse in 1994 with his daughter (DOB September 28, 1978) named as derivative.  The priority date is July 15, 1994.  The daughter ages out in 1999 before the F-2A category for Mexico becomes current.  The LPR dad files second I-130 for aged-out derivative daughter in the F-2B category and is able to retain the original priority date. The LPR father subsequently naturalizes in 2012 converting the F-2B petition to the F-1 category. The priority date was close enough to becoming current in 2012 that it triggered the NVC sending out a fee bill to the daughter.  The daughter didn’t receive the notice since she had changed her address.  In September 2014 the NVC sent a final notice indicating that it had terminated the case and destroyed the file.  Assuming you are not able to convince NVC to undo what they did, is there any relief for child?

Stumped?  Find Out Here!

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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.

USCIS Statistics

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.

Common RFEs

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.

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CLINIC Newsletter - July 2014 - VOL. XVIII No. 7

In this issue…                        

Protecting the Vulnerable:  Unaccompanied Immigrant Children

U. S. Department of State Updates Foreign Affairs Manual Guidance

News From the Catholic Network

  • New Subscribers
  • Network Affiliate Agency Profile                                                                                                                                                                      

Advocacy Update


Immigration Law Update

                                                                                                                                                  
Technical Assistance and Trainings

 

Resources

Visa Bulletin

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Webinar: Preparing for DACA Renewals: The New I-821D

This webinar for affiliates discusses the newly revised I-821D and USCIS guidelines for DACA renewal.  We provide updates on DACA policy and advocacy issues and also share program management tips on preparing for DACA renewals.  Finally, we consider how lessons learned from the initial DACA phase can be applied to the renewal process and to future immigration reform.

The presenters for this webinar were: Tatyana Delgado, Ilissa Mira, Allison Posner, Jen Riddle, Nathaly Perez and Michelle Sardone

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USCIS Releases Revised Form I-821D and DACA Renewal Guidelines

By Ilissa Mira, CLINIC Training and Legal Support Attorney

 

On June 5, 2014, USCIS released the much anticipated revised Form I-821D, Consideration of Deferred Action for Childhood Arrivals (DACA).  The new dual-purpose form will be used to file both initial and renewal DACA requests.  As of the release date, USCIS will not accept DACA requests submitted on the old form.

In September 2012, USCIS began granting Deferred Action for Childhood Arrivals (DACA) to individuals who entered the U.S. as children and met certain eligibility guidelines.  DACA grantees receive deferred action and an employment authorization document, both valid for a two-year period.  Initial DACA grants for the earliest applicants will begin to expire in September 2014 and the renewal process is now open.   

To qualify for renewal, an individual must have previously been approved for DACA and show that  he or she:

  1. Did not depart the United States on or after August 15, 2012 without advance parole;
  2. Has continuously resided in the United States since he or she submitted his or her most recent request for DACA that was approved up to the present time; and
  3. Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Renewal applicants should submit their requests to USCIS at least 4 to 5 months before their DACA expires.  Individuals whose current DACA grants expire before they receive a renewal will lose their deferred action and work authorization.  Those who are 18 years or older will accrue unlawful presence during any gap in deferred action.  To prevent a lapse in work authorization and the accrual of unlawful presence, USCIS encourages renewal applicants to submit requests at least 120 days (4 months) prior to the expiration of their current DACA period.  The USCIS Frequently Asked Questions (updated June 5, 2014) currently state that those who have filed for renewal at least 120 days before their deferred action and EAD expire may receive a short DACA extension if USCIS encounters unexpected processing delays while their request is being adjudicated.  However, no specific process for providing extensions has been announced.  CLINIC recommends that applicants submit renewal requests as soon as they qualify to do so.  At the earliest, renewal requests may be submitted 150 days (5 months) prior to the individual’s current DACA expiration date. 

The new form indicates sections that are for initial applicants, renewal applicants, or both.  Requestors who are applying for DACA for the first time must demonstrate their eligibility under the general DACA guidelines and submit supporting evidence.  For the majority of renewal requestors, the renewal application process will be much simpler than the initial process.  Those who previously received DACA from USCIS do not complete the education section of the form and must only list residences and absences from the United States since their initial DACA grant.  Supporting documents are only required if the renewal requestor is currently in exclusion, deportation, or removal proceedings (but not if the case was administratively closed); or has been charged with, or convicted of, a felony or misdemeanor.  Renewal applicants should not submit supporting documents that were submitted to USCIS in a previous DACA request.  Note that renewal applicants are not instructed to include supporting documentation related to the education guidelines or continuous residence.  However, USCIS reserves the authority to request additional documents or information relating to a DACA renewal determination.

Renewal requestors who received initial DACA grants from ICE must go through a more burdensome process.  ICE-granted DACA recipients must complete all sections of the form as if they were initial applicants and must demonstrate that they meet each of the DACA eligibility guidelines. 

All DACA requests must include the new Form I-821D, as well as Forms I-765 and I-765WS. 

Requests made on June 5, 2014 or later must be made using the revised Form I-821D (version 6.4.14).  USCIS is no longer accepting DACA requests made on the previous version of the form.  The fee for both initial and renewal applicants remains $465, unless the applicant qualifies for a fee exemption

 

Additional changes to the form and instructions include:

  • For initial applicants, new guidance on satisfying the educational requirement through current school enrollment.
  • A new “Processing Information” section of the form which requires biographic data to be used in conducting background checks.
  • Renewal applicants are asked to list only addresses and absences since their last DACA approval.
  • New national security questions related to the recruitment or use of child soldiers.

DACA renewals provide an opportunity for affiliates to reach out to both current DACA recipients and potential first time applicants.  642,685 individuals have applied for DACA as of March 2014 and 82% of those applications were approved.  The success of the DACA program may encourage new applicants to seek DACA application assistance for the first time. CLINIC’s DACA Workshop Toolkit will be updated to include a number of new resources for planning and implementing group workshops to serve both initial and renewal DACA requestors.

 

 

 

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Webinar: DACA and Advance Parole (May 2014)

This webinar is for legal service providers helping Deferred Action for Childhood Arrivals (DACA) recipients apply for permission to travel abroad using advance parole.   We will review advance parole guidelines and offer suggestions on how best to prepare advance parole applications for DACA recipients.  We will also share information about travel experiences of DACA recipients.  Finally, we will discuss the impact of advance parole on the green card application process for DACA recipients who are beneficiaries of family-based petitions.

 Panelists:

Dan Berger, Partner, Curran & Berger LLP

Tatyana Delgado, Training and Legal Support Attorney, CLINIC

Ilissa Mira, Training and Legal Support Attorney, CLINIC

Patrick Taurel, DACA Legal Services Fellow, AIC

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CLINIC Submits Second Round of Comments to DACA Application Form

Taking the opportunity to submit further comments to USCIS about the DACA application and renewal process, CLINIC commended the agency for the changes it did make, including extending the DACA renewal application window to 150 days, simplifying the education-related questions, and streamlining the application requirement for renewal applicants.  CLINIC also encouraged USCIS to make additional changes to the form and instructions to help both initial and renewal applicants better navigate the application process.  Among the chief concerns for CLINIC and its affiliates is ensuring that DACA recipients who timely file their renewal applications do not lose work authorization and accumulate unlawful presence. 

 

For more of CLINIC’s recommendations:

CLINIC's DACA Renewal Comments (5-5-14) (PDF)

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USCIS Releases Second Revised Form I-821D and Outlines DACA Renewal Process

By Ilissa Mira, CLINIC Training and Legal Support Attorney

In September 2012, USCIS began granting Deferred Action for Childhood Arrivals (DACA) to individuals who entered the U.S. as children and met certain eligibility guidelines.  DACA grantees receive deferred action and an employment authorization document, both valid for a two-year period.  Initial DACA grants for the earliest applicants will begin to expire in September 2014.  In anticipation, USCIS is developing a renewal process and inviting public comment.  This article summarizes the latest changes to the proposed Form I-821D and current areas of concern.    

USCIS released a preliminary revised Form I-821D and instructions on December 18, 2013 for a 60-day public comment period.  In response, CLINIC submitted recommendations focusing on several areas of concern, including: 

 

  • the proposed form’s confusing structure
  • a restriction allowing renewal applicants to apply no more than 120 days before their grant of deferred action expired
  • burdensome education requirements for renewal applicants
  • burdensome evidentiary requirements regarding criminal records
  • lack of clarity regarding supporting documentation required for renewal applicants

 

On April 5, 2014, USCIS published a second revised form, which incorporates many of CLINIC’s recommendations.  Additionally, USCIS updated its DACA webpage to include preliminary information regarding the renewal process.  The draft Form I-821D and the information on the website are subject to change until the form and renewal process are finalized in May 2014. 

Highlights from the website guidance and the latest draft Form I-821D and instructions include:

 

  • One form will be used for both initial and renewal applicants.  New instructions clarify who must respond to each section (e.g., initial requestors, renewal requestors, or both).
  • Renewal requests may be submitted no more than 150 days prior to the expiration of the individual’s current DACA period.  The previous revision allowed renewal applicants to submit requests only 120 days priors to the expiration of their current DACA period. 
  • Guidance on the USCIS website currently states that those who have filed at least 120 days before their deferred action and EAD expire may be provided a short extension if USCIS is unexpectedly delayed in processing the renewal request.
  • The form and instructions do not require renewal applicants to demonstrate that they continue to meet the education guidelines or include supporting documentation related to the education guidelines.  However, guidance on the USCIS website advises applicants to keep copies of all supporting documents that evidence they satisfy the DACA guidelines.
  • Initial DACA requestors may satisfy the education guideline through enrollment in an education, literacy or career training program administered by a non-profit.
  • Renewal applicants are not required to resubmit supporting documentation included in a prior DACA request to USCIS.  Only documents related to criminal history or removal proceedings since the initial DACA grant must be submitted.

 

CLINIC is pleased that USCIS has expanded the renewal window, however, we are troubled that some individuals who do not apply within the 120 – 150 day period before their DACA expires may fall into unlawful status if USCIS fails to adjudicate their applications in that timeframe.  We appreciate that renewal applicants will not be required to resubmit evidence previously included in prior applications.  Still, we are concerned that requests for arrest records are inappropriate and overly burdensome to applicants and that requests for juvenile records will lead to inconsistent and unfair treatment of individuals depending on their state’s privacy laws.

 

Public comments on the latest proposed DACA form and instructions are due on May 5, 2014.  CLINIC will be submitting comments and we encourage our affiliates to use this opportunity to share their thoughts with CLINIC Training and Legal Support Attorneys Tatyana Delgado, tdelgado@cliniclegal.org and Ilissa Mira, imira@cliniclegal.org.

 

 

Resources by type: 

USCIS Releases “ICE-Granted DACA Renewal Guidance”

By Ilissa Mira

On February 19, 2014, USCIS released guidance related to DACA renewals for those individuals granted DACA by USICE between June 15, 2012 and August 15, 2012.  Per the notice, this group of DACA grantees may now apply for renewal of status through USCIS. The notice also provides guidance on how to submit the renewal requests and includes a warning that gaps in deferred action periods will result in the accumulation of unlawful presence. 

To qualify for renewal under this guidance, individuals must satisfy the DACA eligibility guidelines.  Before submitting a request to USCIS, applicants should be screened to ensure that since their initial DACA grant, they (1) continue to meet the education guidelines, (2) have no disqualifying absences, and (3) have no criminal offense history that would bar eligibility or place the applicant at risk of removal. Approved renewal applicants will receive another two-year period of deferred action. 

DACA renewal requests for this group of individuals should be submitted to USCIS following the procedures that currently apply to initial DACA requests.  The request must include Form I-821D, Form I-765, and Form I-765WS, along with supporting documentation.  In addition, a $465 fee must be included unless the applicant qualifies for a fee exemption.  The notice states that if one’s period of deferred action expires before a DACA renewal request is approved, he or she will accrue unlawful presence and will not be authorized to work for any time between periods of deferred action.  Therefore, USCIS encourages submission of renewal requests 120 days before the current period of deferred action expires.

Note that this renewal guidance only affects the small number of individuals who were granted DACA status by ICE between June 15, 2012 and August 15, 2012.  USCIS is not currently accepting DACA renewal requests from individuals outside of this specific group.  Individuals who were initially granted DACA by USCIS or by ICE on or after August 15, 2012 should await further guidance.  On December 18, 2013, USCIS released for public comment a new draft Form I-821D, to be used for both initial and renewal applicants.  We expect that a final form will not be available until May 2014.

Resources by type: 

CLINIC's Comments in Response to Changes in Form I-821D

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

 

Laura Dawkins

Chief, Regulatory Coordination Division, Office of Policy and Strategy

U.S. Citizenship and Immigration Services, Department of Homeland Security

USCISFRComment@uscis.dhs.gov

 

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).

 

Introduction

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.    

 

Form I-821D

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.[1]

 

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?

 

Conclusion

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 aposner@cliniclegal.org for additional information.

 

Sincerely,

Jeanne M. Atkinson, ESQ.

Executive Director

 


[1] 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.

DACA Public Service Announcement (PSA) Radio Campaign

CLINIC released a DACA Public Service Announcement (PSA) Radio Campaign funded by Our Sunday Visitor. Through this campaign, CLINIC hopes to educate DACA-eligible individuals and encourage them to apply for and receive the help they need to stay and work legally in the U.S.

We hope these PSAs are useful in your DACA work, especially with outreach to individuals who are unaware of the program or afraid to approach their nearest legal service provider. Over 900 radio stations across the country have received a copy in markets with significant DACA populations including Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, Pennsylvania, and Texas.

Below are the PSAs: (click each link to download the .aif file).  


Please share the PSAs widely. Send a copy of the PSAs to your local radio station contacts to play on the air and let us know how we can continue to get the word out about DACA in your communities.  If you have any feedback and/or would like to receive a hard copy CD of the PSAs, please email Claudia Ornelas, CLINIC's Communication Officer, at cornelas@cliniclegal.org.  

 

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Life After DACA - FAQ

GENERAL

 

1. Can DACA recipients travel abroad? 

Yes, but only if they receive permission from the government. 

DACA recipients may apply for advance parole, which gives a person in the United States advance permission to reenter the country after traveling abroad. In order to receive advance parole, a DACA recipient generally must show that he or she is traveling abroad for humanitarian, employment, or educational purposes. Advance parole does not guarantee that an individual will be allowed to reenter the United States.  Immigration officials have the authority to deny parole at a port of entry in certain circumstances.  In general, however, persons granted advance parole do not have problems reentering the U.S.  Talk to an immigration attorney or BIA accredited representative to find out if you should travel abroad

For more information see Catholic Legal Immigration Network, Inc. (CLINIC’s) free webinar, Travel Abroad for Deferred Action for Childhood Arrivals (DACA) Recipients , available on the DACA resources page at www.cliniclegal.org. You may also wish to consult CLINIC’s and American Immigration Council (AIC’s) practice advisory, Advance Parole for Deferred Action for Childhood Arrivals Recipients.

 

2. Can a DACA recipient renew deferred action?

Yes, DACA recipients may apply to renew their deferred action.  USCIS has not yet released instructions on applying for renewal.  This FAQ will be updated when the process for renewing DACA is announced.  Keep track of your Employment Authorization Document (EAD) expiration date and check with your legal services provider, the We Own the Dream  website, or the USCIS  website for updated renewal information.  

 

3. How do I replace a lost or stolen Employment Authorization Document (EAD)?

Currently U.S. Citizenship and Immigration Services (USCIS) does not issue replacement EADs to DACA recipients at reduced fees.   To apply for a replacement EAD, you must send a new form I-765 to USCIS.  Include a copy of your previous EAD approval notice, DACA

approval notice, two passport sized photos, and a check or money order for $465 payable to the Department of Homeland Security.  

 

4. How do I apply for a social security number?

 After you receive your Employment Authorization Document (EAD) you may apply for a social security number. To apply for a social security number, you must visit a Social Security office to complete and sign an application in person.  Bring your EAD and one document proving your age and identity.  Proof of identity documents must be the original or a certified copy.  Examples include passports, birth certificates and school I.D. cards.  You should get your Social Security Card in the mail within 1 to 4 weeks after submitting your application.  Instructions for applying for a social security number are available on the Social Security Administration’s website  at http://www.socialsecurity.gov/pubs/deferred_action.pdf. 

 

5. Can my DACA status be terminated or revoked?

 Yes.  Your DACA grant, which allows you to stay in the U.S. lawfully for two years, can be revoked.  For example, if you are convicted of a crime that would disqualify you from DACA, including crimes related to violence, drugs, sexual abuse, burglary, possession or use of a firearm, driving under the influence, or gangs, you could lose your deferred action and be placed in removal proceedings.  

 If you are arrested after receiving DACA, consult with an immigration attorney or BIA accredited representative. Find legal help at http://www.weownthedream.org/legalhelp/.

 

EMPLOYMENT

6. I am working under a social security number (SSN) that is not my own.  Should I tell my employer I now have a new SSN?

While there are ways to give your employer your updated SSN information, your employer may fire you if he or she finds out that you were working under a false SSN.  Many employers have honesty policies that require them to fire someone who has given them false information in order to work. 

One option for correcting your SSN is to ask to update your Internal Revenue Service (IRS) Form W-4 (Employee’s Withholding Allowance Certificate).  The W-4 helps the government track how much tax to withhold from your paycheck, how long you have been working, and how much you have contributed to the Social Security Fund.   Your employer should let you update this every year.  

You could also update your Form I-9 Employment Eligibility Verification.  Employers are required to complete the Form I-9 to verify a new employee’s identity and legal authorization to work in the U.S.  The new employee must provide an accepted document or documents to show their identity and eligibility to work.  If you presented false information and documents

at the time you were hired, updating your I-9 or W-4 may lead to your employer finding out that you were working under a false SSN, and possibly firing you.  You should think carefully about whether to disclose your new SSN.   

More information about DACA and work place issues can be found on the National Immigration Law Center (NILC) website at http://www.nilc.org/dacaworkplacerights.html.  If you have questions about employment issues you may also contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1-800-255-7688 or www.justice.gov/crt/about/osc/).

 

7. I am working for my employer under a false name.  Should I tell my employer my real name now that I have DACA?

If you tell your employer that you have been working under a false name, you may be fired for giving false information.  Many employers have honesty policies that require them to fire someone who has given them false information in order to work.  However, employers must apply their honesty policies without discriminating.  Your employer should not treat you differently, based on your national origin, from the way your employer treated other employees who presented false information.  If it does, your employer may be violating anti-discrimination laws.  

If you are currently working under a false name, you should think carefully about correcting any information that you previously gave to your employer.

More information about DACA and work place issues can be found on the National Immigration Law Center (NILC) website at http://www.nilc.org/dacaworkplacerights.html.  If you have questions about employment issues you may also contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1-800-255-7688 or www.justice.gov/crt/about/osc/).

 

TAXES

8. Do I need to pay taxes?  How do I transfer my ITIN history to my new SSN?

The tax laws that apply to U.S. citizens and permanent residents also apply to DACA recipients.  If you are working and earning a certain amount of money you are required to pay taxes.  You may already have an individual tax identification number (ITIN), which is a tax processing number that the Internal Revenue Service (IRS) gives to individuals who are not eligible for a social security number (SSN). 

You cannot have an ITIN and SSN at the same time, so you should rescind your ITIN once you get a new SSN.  Send a letter to the IRS ITIN Operation requesting that your ITIN be rescinded and that all your tax records are linked to your new SSN.  Include your complete name, mailing address, and copies of your ITIN and SSN cards. 

Send your letter to:

Internal Revenue Service

Austin, TX 73301-0057  

Note that the IRS address above has no street address.  For more information on how to rescind an ITIN, see the IRS website at http://www.irs.gov/Individuals/Additional-ITIN-Information.

 

DRIVER’S LICENSES AND PUBLIC BENEFITS

9. How do I get a driver’s license?

States have different policies about who is eligible for a driver’s license. Procedures for applying are also different, depending on the state you live in.  In all states except Arizona and Nebraska, DACA recipients with work authorization and a Social Security number can get a driver’s license as long as they meet the state’s other eligibility requirements.  In most states, driver’s license applicants are required to have a social security number, evidence of lawful or authorized presence in the United States, proof of identity and date of birth, and proof of residence in the state.  

The National Immigration Law Center (NILC) has more information about DACA and drivers licenses  at http://www.nilc.org/dacadriverslicenses.html. 

 

10. How do I answer questions about my immigration status when applying for benefits?

Deferred action is not a formal immigration status, but while you are granted deferred action you are considered lawfully present in the United States.  When filling out forms it is important to be honest.  You should not claim to be a U.S. citizen.  Doing so could lead to future immigration problems and in some cases, criminal prosecution. Similarly, you should not claim to be a lawful permanent resident. DACA recipients are not lawful permanent residents.  

When filling out an application or a form you can describe your status as “Deferred Action.”  If you have further questions about describing your status on an application or a form, contact a legal service provider near you. To locate one, go to http://www.weownthedream.org/legalhelp/.

 

11. Now that I have DACA, what public benefits do I qualify for?

Your access to public benefits depends on your state’s policies.  DACA recipients are not eligible for federal benefits.  Some states offer medical coverage to certain lawfully present immigrants who are ineligible for federal health coverage.  Others provide prenatal care regardless of woman’s immigration status, and a few states and counties provide health coverage to children regardless of their status.

DACA grantees are not covered under the Affordable Care Act (ACA) or “Obamacare” and cannot buy health insurance through the health insurance marketplace or health insurance

exchange.  You may qualify for insurance through an employer or buy full price insurance outside the marketplace if it is available.

National Immigration Law Center (NILC) has several resources explaining health care options to DACA grantees available at http://www.nilc.org/acadacafaq.html .  See also tables on benefits available to immigrants in particular states at http://www.nilc.org/guideupdate.html.

 

EDUCATION

12. Am I eligible for financial aid, in-state tuition, or scholarships?

Federal Financial Aid

DACA recipients cannot receive federal financial aid, including grants and scholarships that are federally funded.  In some states you may qualify for in-state tuition or state financial aid.  There are also private scholarships that may be available to you.

In-State Tuition and State Financial Aid

Some state policies grant in state tuition and/or state financial aid to students regardless of their immigration status, as long as they attended high school in the state for a particular period of time and meet certain other criteria.  Some states and schools allow in state tuition to lawfully present students who have lived in the state for a certain number of months.  Check to see what options are available in your state and at the school you attend.  For more information on access to education in different states, see National Immigration Law Center (NILC’s) “State Bills on Access to Education for Immigrants – 2013.”  

Private Loans and Scholarships

Private loans and scholarship may be available to you.  For a list of private scholarships that do not require proof of U.S. citizenship or legal permanent residency, visit the website for Educators for Fair Consideration (E4FC) .

 

MILITARY

13. Do I need to register for the draft?

It depends. If you are a male between the ages of 18 and 26, you must register for the draft.  To register, go to www.sss.gov and click “register online.” If you are not a male between the ages of 18 and 26, you do not have to register.

Undocumented immigrant males between the ages of 18 and 26 who do not have DACA also are required to register for the draft.   

 

14. Can I enlist in the U.S. Armed Forces or Coast Guard?

No. DACA recipients are not eligible to enlist in the U.S. Armed Forces or the Coast Guard.

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Update on Deferred Action for Childhood Arrivals (DACA) (January 31, 2014)

By Tatyana Delgado, CLINIC Training and Legal Support Attorney

On June 15, 2012, the Secretary of the U.S. Department of Homeland Security issued a memorandum allowing individuals who entered the U.S. as children and meet certain guidelines to apply for Deferred Action for Childhood Arrivals (DACA).   U.S. Citizenship and Immigration Services (USCIS) began accepting DACA applications in August 2012 and issuing DACA approvals in September 2012.  This article provides updates on a variety of issues related to DACA eligibility and adjudications. 

DACA Renewals

Given that DACA grants are valid for two years, the DACA renewal period is approaching.  USCIS has not yet released a final comprehensive explanation of the DACA renewal process.  However, on December 18, 2013, USCIS issued a draft revised I-821D, including proposed DACA renewal policies and procedure, for public comment.   Highlights of the proposed policies and procedure include:

  • A renewal application may not be submitted more than 120 days prior to the end of the individual’s current DACA grant period. 
  • Renewal applicants must have continuously resided in the U.S. since submitting the initial DACA request.  
  • DACA recipients who were “enrolled in school” (includes secondary school, education, literacy, or career training programs) at the time of the initial application must have made substantial progress, graduated from school, passed General Education Development (GED) test or other equivalent, enrolled in post-secondary education, or obtained employment.
  • Renewal applicants may not have departed the U.S. on or after August 15, 2012 without advance parole.
  • Individuals who initially received DACA from U.S. Immigration and Customs Enforcement (ICE) must respond to all of the questions in Form I-821D and provide supporting evidence of initial eligibility. 

Public comments on the proposed DACA form and instructions are due on February 18, 2014.  CLINIC will be submitting comments and we encourage our affiliates to use this opportunity to share their thoughts with CLINIC Training and Legal Support Attorneys Tatyana Delgado, tdelgado@cliniclegal.org and Ilissa Mira, imira@cliniclegal.org

DACA Statistics

Many individuals who are eligible for DACA have not yet applied.  Estimates from the Migration Policy Institute (MPI) indicate that 1.76 million individuals are or will become eligible for DACA.  The latest USCIS report (dated September 11, 2013) stated that USCIS had received more than 580,000 DACA applications.  The majority of DACA applications have been approved.  Specifically, USCIS had approved over 450,000 cases and denied over 9,500 cases.   

In September 2013, the Center for American Progress (CAP) issued a report titled Undocumented No More:  A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA, outlining a series of findings regarding the DACA applicant pool.  CAP found that certain states, such as Florida and New Mexico, have low DACA application numbers.  While the DACA applicant pool is diverse, individuals from certain parts of the world, such as North and Central America (excluding Mexico), Asia, and Europe, are underrepresented in the applicant pool.  The average DACA applicant is 20 years old.  According to CAP, older applicants are more likely to be denied than younger applicants.  This may be attributed to difficulties with establishing DACA eligibility among those who are no longer attending school.  

Case Processing Times

USCIS reports that the average processing time for DACA applications is six months.  Several legal advocates have reported that DACA applicants are facing processing times that are longer than six months and in some cases, longer than one year. 

For cases that have been pending for more than six months, legal representatives or applicants may call the USCIS National Customer Service Center (NCSC) to inquire about the case.  The USCIS customer service representative should provide a referral number.  USCIS uses the referral numbers to track questions.  If there is no response from NCSC within 15 days, e-mail the service center where the application was filed.  The e-mail should include the application receipt number, date, alien number, NCSC referral number, and details regarding communications with NCSC.  Here are the regional service center e-mail addresses: 

If there is no response from the service center within 21 days, contact USCIS Service Center Operations by e-mailing SCOPSSCATA@dhs.gov.   Legal representatives or applicants may also contact the USCIS Ombudsman’s office by completing a case assistance form.  In addition, CLINIC affiliates may contact CLINIC for assistance with long pending cases. 

Supporting Evidence

DACA applications require documentation proving that applicants satisfy the eligibility guidelines.  Evidence of physical presence, continuous residence, educational or professional development, and undocumented status are key pieces of the application.

Although many individuals who satisfy the DACA eligibility guidelines have faced challenges with gathering the required documentation, legal advocates have been successful in helping clients overcome these challenges.  For example, Graham Bateman, an attorney with the Central Louisiana Interfaith Immigration Center, successfully assisted a DACA applicant who received a Request for Evidence (RFE) of continuous residence in the U.S. since 2007.  To supplement the school attendance records already submitted by her client, Graham helped the client obtain declarations from an individual who rented a mobile home for the client, a church leader, and a relative attesting to the client’s presence in the U.S.  The client was approved for DACA. 

In another case, Sister Mary Ellen Burns, an attorney with Apostle Immigrant Services, successfully helped an applicant gather evidence proving that he was present in the U.S. on June 15, 2012.   The client, a Jehovah’s Witness, had graduated from high school in June 2011 and participated in preaching teams regularly.  The leaders of the preaching teams maintain logs of the preaching hours for each of the members.  Thus, the leader of the congregation submitted a letter explaining their practices and listing the hours that the client had spent preaching in June 2011 through August 2012.  The client was approved. 

In addition, DACA applicants who indicate that they are “currently in school” may receive RFEs seeking evidence that they have completed or continue to be enrolled in a qualifying program.  For DACA purposes, “currently in school” may include enrollment in various types of educational or career training programs, such as a GED preparation program.  Applicants should be counseled that USCIS may request proof of program continuation or completion; therefore, it is important for applicants to continue to pursue their educational or career training program goals.

Continuous Residence Guideline - Brief, Casual, and Innocent Departures

Legal advocates report that DACA applicants with multiple or extended absences have been successful in meeting the DACA continuous residence requirement.  Clients should explain the purpose of the departure and provide evidence of the brief, casual, and innocent nature of the departure.  For example, in one approved case, the applicant traveled to another country for three months in 2008 at the age of 12.  The application included a letter describing the reason for the trip, which involved the need to obtain original documents that could only be retrieved in person in the native country.   This was the only trip that the client had taken during the continuous residence period.  Another approved case involved a client who had three brief departures during the continuous residence period.  One departure lasted three weeks, another two weeks, and the last departure lasted a few days.  The client explained that the purpose was to visit a sick grandmother who eventually passed away and provided documents showing the visits were brief and innocent. 

What about clients with longer absences – can they successfully apply for DACA?  CLINIC is aware of at least one approved case involving an individual who left the US. for six months to obtain professional training and evaluation related to a special talent. The applicant provided affidavits explaining the purpose of the trip and the application was subsequently approved.

Juvenile Delinquency

As part of the DACA application form, applicants are expected to inform USCIS whether they have been arrested, charged with, or convicted of a felony or misdemeanor in the U.S.  This includes incidents handled in juvenile courts.  While juvenile delinquency matters do not bar an individual from DACA, USCIS may consider these matters when deciding whether to exercise prosecutorial discretion. 

Legal advocates have reported that clients with juvenile delinquency dispositions have received DACA.  Submitting evidence of positive equities for clients with juvenile delinquencies is highly recommended.  For example, Nubia Torres, the Victims and VAWA Program Manager at Catholic Charities of Dallas, reported that a DACA client with a juvenile delinquency disposition based on a residential burglary was approved.  This negative factor was overcome by evidence of satisfactory completion of probation, and the applicant’s strong academic record, including his enrollment in college.  

USCIS has also indicated that applicants must provide records of all arrests unless disclosure of such records is prohibited under state law.  Thus, legal advocates should become familiar with the sealing and confidentiality laws that apply to juvenile records in their states.  In some states, juvenile records may not be shared with USCIS without a state court order.    

Review of DACA Denials

The USCIS Frequently Asked Questions (FAQs) on DACA indicate that applicants may seek review of DACA denials where (a) the denial is based on abandonment, but the applicant can show that s/he timely responded to the RFE; and (b) USCIS mailed the RFE to the wrong address even though the applicant submitted a proper change of address form before RFE was issued   Review may be requested by calling the NCSC and seeking a service request using the Service Request Management Tool (SRMT).  An applicant or legal representative may also submit a written request for administrative review to the regional service center that adjudicated the case.  

Legal advocates are encouraged to seek review of other types of USCIS errors.  For example, Christina Leddin, Immigration Specialist with Amigos Center, was able to overcome a DACA denial based on the applicant not establishing that she warranted a favorable exercise of prosecutorial discretion.  Thinking that the denial might be based on a discrepancy between the applicant’s true first name and the first name that appeared in some of her supporting documents, Christina argued that the denial was a USCIS administrative error.  In her request for case review, Christina explained the reason for the name discrepancy, and the case was ultimately reopened and approved.  CLINIC affiliates may contact CLINIC for assistance with seeking review of denials. 

Travel Abroad using Advance Parole

DACA recipients are eligible to apply for advance parole to temporarily travel abroad for educational, employment, or humanitarian reasons.  To date, DACA recipients have received advance parole approvals to visit sick relatives, study abroad, and conduct field work related to an academic course of study, among other reasons.  Several DACA recipients have reported that they left and returned to the U.S. with advance parole without any hurdles. 

In certain circumstances, DACA applicants returning to the U.S. with advance parole may qualify for adjustment of status under INA 245(a).  Indeed, one attorney for a DACA recipient reported that his client successfully adjusted status based on his marriage to a U.S. citizen following his return to the U.S. with advance parole.

Going Forward

CLINIC will continue to inform our network about developments in DACA adjudication policy and procedure, including updates on DACA renewals.  We applaud the vigorous and creative advocacy of the DACA advocates in the CLINIC network and we thank you for sharing your stories and strategies with your CLINIC colleagues. 

Special thanks to Graham Bateman, Sister Mary Ellen Burns, Christina Leddin, and Nubia Torres for their contributions to this article.  Please continue to share your updates, challenges, and successes with CLINIC Training and Legal Support Attorneys Tatyana Delgado, tdelgado@cliniclegal.org, and Ilissa Mira, imira@cliniclegal.org

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The Year of DACA

By Minyoung Ohm

RIS Staff Attorney 

 

It has been more than one year since the Catholic Legal Immigration Network’s (CLINIC) Religious Immigration Services (RIS) Section began taking cases for Deferred Action for Childhood Arrivals (DACA).  Back on June 15, 2012, the Department of Homeland Security announced a new process that allowed prosecutorial discretion to “dreamers,” or the young people who came into the United States as children and do not have proper immigration documents.  This new program allowed these young people to have work authorization and stay in the country without the threat of deportation. This announcement provided hope for the young people who lived in the shadows as “undocumented” immigrants.  These young adults were unable to obtain social security numbers or driver’s licenses because they did not have valid immigration status.  

Since June 2012, RIS has handled a number of DACA cases.  In the spring of 2013, our clients started receiving work authorization cards and approval notices for applications that were filed in late 2012.   It is exciting to see the approval notices, especially since just last year, attorneys were working hard to collect documents from these DACA applicants to show proof of their eligibility to the Department of Homeland Security.  Now these young people have DACA approvals, obtained work permits, social security numbers, and driver’s licenses, and are able to live out their lives for everyone to see.

The DACA applicants who came to RIS for assistance are young people aged between 20 and 30 who are discerning religious life in formation.   These applicants grew up in the United States, speak English, attended local middle and high schools, and somehow, in their life’s journey, encountered God’s calling to pursue a religious vocation.  For example, a young Religious Sister whose DACA application was approved in May 2013 came to the United States by crossing the Mexican border with her parents when she was 14 years old.  Her parents, who were struggling in Mexico, wanted to move the family into the United States so that their children could have better lives.  Growing up, she felt like she was living a segregated life because she was undocumented and had no identification.  Now, she is currently studying theology and philosophy at her religious community’s juniorite house and providing pastoral services to nearby parishes, such as teaching catechism to youths, caring for those dealing with depression and alcohol problems, and praying for spiritual refreshment with Catholics who gather at retreats. 

Another DACA applicant is a Religious Brother from Peru.  He originally came to the United States with his family on a tourist visa at the age of 13.  After arriving, his family decided to remain in the United States.  He discovered at a young age that he was not legally in the U.S. and has lived in fear of deportation for both himself and his family.  He joined a religious community following God’s calling to serve the disadvantaged youths.  Since his DACA was approved, he obtained a social security number and a driver’s permit.  He can now legally work.  In fact, he is currently assigned by his religious superiors to teach religion at a Catholic High School.   If he is approved for a travel document, he hopes to join missionary groups abroad and enrich his religious vocation by studying theology in Jerusalem.  

Despite the positive impact made on the lives of these religious men and women, DACA is not a permanent solution, as it does not grant any legal status.  We hope that Congress will pass Comprehensive Immigration Reform so these worthy religious men and women, along with other deserving immigrants who work hard and want to more fully contribute to the United States as productive members of society, are given a chance to live their lives out of the shadows and be on a pathway to permanent residence and eventual citizenship.  

 

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Webinar - Travel Abroad for Deferred Action for Childhood Arrivals (DACA) Recipients

This webinar is for non-immigration lawyers, community organizers, Deferred Action for Childhood Arrivals (DACA) recipients, and others who would like to learn about how DACA recipients can travel abroad.   We will explain who is eligible to apply for permission to travel abroad using advance parole, legal issues to consider, how to apply for advance parole, travel logistics, and the post-travel impact on certain immigration benefits.  

 

Panelists:

 

  • Tatyana Delgado, Training and Legal Support Attorney, CLINIC
  • Ilissa Mira, Training and Legal Support Attorney, CLINIC
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Webinar - DACA - One Year Later

This webinar is for legal service providers and others helping DREAMers apply for Deferred Action for Childhood Arrivals (DACA).  One year after DACA’s launch, we will review important DACA developments and explore ways we can continue to improve DACA-related services.  In this webinar, we will look at DACA application numbers to better understand the DACA applicant pool.  We will also look at the numbers to identify where new or bolstered DACA outreach is needed and to whom such outreach should be targeted.  We will discuss advocacy successes and DACA approvals in complicated cases.  In addition, we will address lessons learned about advanced practice issues, such as applying for DACA with criminal records, meeting eligibility guidelines, and advance parole.  Finally, we will highlight ways legal service providers and advocates can continue to further DACA efforts and improve assistance to DREAMers going forward. 

Panelists:        

  • Tom Wong, Assistant Professor of Political Science, UC San Diego
  • Allison Posner, Director of Advocacy, CLINIC
  • Robert Yabes, Immigration and Legal Services Program Director, Catholic Charities of Santa Clara County
  • Tatyana Delgado, Training and Legal Support Attorney, CLINIC
  • Ilissa Mira, Training and Legal Support Attorney, CLINIC

Held on August 22, 2013

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Advance Parole for DACA Recipients

Advance Parole for DACA Recipients

By Emily Creighton, Mary Kenney, and Patrick Taurel (American Immigration Council)

and Susan Schreiber and Tatyana Delgado (CLINIC) 

Introduction

On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.

Parole is “the authorization to allow an otherwise inadmissible person to physically proceed into the United States under certain safeguards and controls.”  Section 212(d)(5) of the Immigration and Nationality Act (INA) provides DHS with the discretionary authority to parole an individual into the United States “for urgent humanitarian reasons” or “significant public benefit.”  Note that parole is not an “admission” into the United States; an individual who has been paroled has not been “admitted.”  Instead, the parolee is considered an “applicant for admission” and, as such, is subject to removal proceedings based upon grounds of inadmissibility, notwithstanding the grant of parole.

Advance parole, an administrative practice derived from the general parole authority in INA § 212(d)(5), gives an individual who is in the United States advance authorization to enter the United States after temporary travel abroad.  U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document.  This document allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States.  Advance parole does not guarantee subsequent parole into the United States, however; the inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry. 

This practice advisory provides guidance on advance parole eligibility for DACA recipients; applying for advance parole; legal issues, including any potential risks to the client, to consider prior to traveling; and the post-travel impact on future immigration benefits.  It is not designed to be a substitute for legal advice on an individual basis from an attorney or Board of Immigration Appeals (BIA or Board) accredited representative. 

Advance Parole Eligibility for DACA Recipients

Prior to applying for advance parole, an individual must apply for and receive a DACA approval.  Indeed, an individual is disqualified from DACA if he or she departs the United States at any time after August 15, 2012 unless he or she is first granted both DACA and advance parole.  In order to receive advance parole, a DACA recipient generally must show that s/he is traveling abroad for humanitarian, employment, or educational purposes.

The USCIS Frequently Asked Questions (FAQs) on DACA provide examples of situations that fall under the categories of humanitarian, employment, and educational purposes.  Humanitarian purposes relate to “travel for emergent, compelling, or sympathetic circumstances.”  This category includes obtaining medical assistance, attending a funeral service for a family member, visiting a sick relative, or other urgent family-related purposes.  Educational purposes include study abroad programs and academic research.  Employment purposes include overseas assignments or client meetings, interviews, conferences, trainings in other countries, and travel needed to pursue a job with a foreign employer in the United States.  The FAQs expressly provide that travel abroad for vacation is not a valid purpose for advance parole.

USCIS guidance states that “USCIS will determine whether [the requester’s] purpose for international travel is justifiable based on the circumstances describe[d] in [the] request.”  This language appears to allow USCIS to decide DACA requests on a case-by-case basis and not to limit reasons for travel to the examples provided in the DACA FAQs.  The USCIS DACA National Standard Operating Procedures Manual also provides that the humanitarian, educational, and employment categories “are to be construed broadly.”  In addition, the instructions for the USCIS Application for Travel Document (Form I-131), used to apply for advance parole, state that the humanitarian, employment, and educational purposes “include, but are not limited to” the examples listed in the instructions.  As such, advocates may make the case for advance parole when DACA recipients seek to travel for humanitarian, educational, or employment purposes that USCIS has not specifically listed. 

Applying for Advance Parole

To apply for advance parole, a DACA recipient must submit Form I-131 to USCIS.  The advance parole applicant must submit proof of DACA status – either a copy of the USCIS Notice of Action (Form I-797) showing a DACA approval or a copy of an approval order, notice or letter from U.S. Immigration and Customs Enforcement (ICE).  The filing fee is $360.  In Part 4 of Form I-131, the DACA recipient must explain the purpose of the trip and the countries the applicant plans to visit.  In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s). 

DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad.  For a trip involving a humanitarian purpose, proper evidence includes but is not limited to the following:

  • A letter from a medical professional explaining the reason for the need to travel abroad to obtain medical treatment;
  • A letter from a hospital or treating medical professional explaining the relative’s ill condition; and/or
  • A death certificate for a deceased relative

For a trip involving an educational purpose, evidence includes but is not limited to the following:

  • A letter from an educational institution explaining the purpose of travel abroad; or
  • A document showing enrollment in a program or class and documents showing the applicant is required to travel for a program or class or will benefit from such travel.

For a trip involving an employment purpose, appropriate evidence includes but is not limited to the following: 

  • A letter from an employer explaining the need to travel abroad; and/or
  • A document showing an employment need, such as a conference or training program, and showing the applicant’s participation.

A single Form I-131 may be used to request that the DACA recipient be allowed to leave and re-enter the United States multiple times.  However, the recipient must show that each trip is intended to serve a humanitarian, employment, or educational purpose and explain why the DACA recipient needs to travel multiple times.

Generally, USCIS does not grant expedited requests for advance parole for DACA recipients.  However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

Travel Logistics

A DACA recipient who is granted advance parole receives an Authorization for Parole of an Alien into the United States (Form I-512L).  The I-512L authorizes an immigration inspector at a port-of-entry to parole the individual into the United States.  The document contains a date by which the individual must present the document to an inspector at a port-of-entry to seek parole.  USCIS issues an I-512L that is valid for the duration of the intended trip.

If the expected dates of travel are relatively soon after the date the advance parole application is submitted and approved, the individual needs to be ready to travel promptly after receiving the authorization document.  The travel itinerary needs to be clear and well-organized to ensure that the individual returns to the United States within the time allotted in the document. 

The advance parole authorization document makes clear that advance parole does not guarantee entry into the United States.  DHS reserves the right to revoke or terminate the advance parole document. The individual is also subject to inspection by an immigration inspector at the time of seeking parole into the United States.  DACA recipients should be aware of these facts – and of any risks presented in their cases – prior to traveling abroad.  

Legal Issues to Consider Prior to Traveling Abroad 

Prior Removal Orders

Prior to traveling abroad, it is important to determine whether the DACA recipient has an unexecuted deportation or removal order.  If such an order exists, and if the DACA recipient were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and would face harsh future immigration consequences, such as the inability to re-enter the United States for a given period of time.

To avoid this, a DACA recipient with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA.  Once removal proceedings are reopened, the removal order no longer exists.  The DACA recipient then can move to administratively close or terminate the reopened proceedings.  If either termination of proceedings or administrative closure is granted, the DACA recipient can travel on advance parole without risking the consequences of an executed removal order.

A motion to reopen asks the court to reopen proceedings for consideration of new evidence, which in this case would be the grant of DACA and the recipient’s need to travel on advance parole.  A motion to reopen a final removal order of an Immigration Judge must be filed with the Immigration Court having administrative control over the Record of Proceedings. Where an appeal has been decided by the BIA and no case is currently pending, a motion to reopen is to be filed with the Board.  Generally, a party may file only one motion to reopen in a case and must do so within 90 days of the date of the final removal order.  However, these number and time limitations do not apply to jointly filed motions.  Thus, regardless of whether the DACA recipient’s case was decided by the Immigration Court or the Board, counsel may wish to contact the relevant ICE Office of the Chief Council (OCC) to request that the parties jointly move to reopen and then administratively close or terminate the DACA recipient’s removal proceedings.  Should OCC not agree, and assuming a motion to reopen is barred by the time or number limitations, both immigration judges and the BIA have the sua sponte authority to reopen cases on their own motions.  Consequently, as a last resort, a DACA recipient can request that the immigration judge or BIA reopen proceedings sua sponte.

Unlawful Presence Bars

Any decisions regarding travel outside of the United States should include an analysis of a DACA recipient’s unlawful presence in the United States to determine whether the recipient is subject to inadmissibility bars of INA § 212(a)(9)(B) (sometimes referred to as the three- and ten-year bars).  Individuals under the age of 18 do not accrue unlawful presence for purposes of these bars and DACA recipients are considered to be lawfully present in the U.S. during the DACA grant period.  However, DACA recipients who applied for DACA after turning 18 as well as DACA recipients who departed the United States and reentered or attempted to reenter the United States without being admitted – including those who are under the age of 18 – will have likely accrued unlawful presence prior to obtaining DACA.  

If the individual accrued unlawful presence under INA § 212(a)(9)(B) prior to obtaining DACA and subsequently travels with advance parole, does the individual become subject to the unlawful presence ground of inadmissibility upon departure from the United States?  According to a recent BIA precedent decision, the answer should be no.  In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.  While this is a promising development, an I-512L issued more recently by the USCIS Nebraska Service Center does not include a reference to  Matter of Arrabally and Yerrabelly or an explanation of the case’s impact on DACA recipients.  Regardless of the presence or absence of a warning on the I-512L, counsel should be prepared to argue that Matter of Arrabally and Yerrabelly’s holding precludes an inspecting immigration officer’s application of INA § 212(a)(9)(B) to a DACA recipient returning to the United States pursuant to grant of advance parole.  Though Matter of Arrabally and Yerrabelly is a precedent decision, attorneys may want to continue to monitor developments in this area before advising clients on the impact of travel.

It is also important to note that a DACA recipient who has already triggered the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C) (by previously leaving and re-entering without advance parole) will still be subject to these bars.  Future travel under advance parole will not cure previously incurred bars. 

Other Inadmissibility Considerations

A DACA recipient granted advance parole who returns to the United States shall be considered an applicant for admission.  As such, the inspecting immigration officer may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply. Thus, prior to departing the United States, DACA recipients with advance parole must consider not only whether they run afoul of the unlawful presence bars discussed above, but also all other inadmissibility grounds except for INA § 212(a)(7) (documentation requirements).  Counsel should pay particular attention to the criminal inadmissibility grounds identified at INA § 212(a)(2), which are much broader than the crime disqualifications for DACA.  Counsel should also be mindful that immigration-related fraud or misrepresentation and false claims to U.S. citizenship can bar admission.

Post-Travel Impact on Future Immigration Benefits

Advance parole may make some DACA recipients pursuing lawful permanent residency through immigrant visa petitions eligible for adjustment of status.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.

It's important to note, however, that eligibility for adjustment of status will most likely only apply to those DACA recipients who qualify to apply as "immediate relatives", i.e. the spouse or child of a U.S. citizen or the parent of an adult U.S. citizen.   DACA recipients waiting to immigrate in a preference category who have previously worked without authorization or been in the U.S. without lawful status are ineligible to adjust status under INA §245(a).  But for those DACA recipients who are married to a U.S citizen, or qualify as children of U.S. citizens, travel on advance parole may have the dual benefits of eliminating exposure to the unlawful presence ground of inadmissibility and creating eligibility to adjust status in the United States.

At least one practitioner has shared that a DACA recipient successfully adjusted after traveling abroad on advance parole.  Similarly, TPS recipients who originally entered without inspection, and thus – like DACA recipients – were unable to adjust, reportedly have been able to adjust after returning on advance parole.  In these cases, their status as parolees upon their return rendered them eligible for adjustment.

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USCIS Releases New DACA Application Form and Instructions

August 2013

A new edition of the Deferred Action for Childhood Arrivals (DACA) application (Form I-821D) and instructions, dated June 25, 2013, is now available on the USCIS website.  After September 9, 2013, USCIS will only accept this version of the DACA application form.

The new Form I-821D and instructions include the following major changes: 

Removal Proceedings Information (Form I-821D Part 1, Question 3)

  • In the revised application form, USCIS provides greater clarification about how to answer the question regarding whether the applicant is or has ever been in removal proceedings. The form now includes a list of types of removal proceedings (e.g. exclusion or deportation, INA Section 240 removal proceedings, expedited removal proceedings), which should help an applicant identify whether he or she has been in or is currently subject to removal proceedings.  The revised form also allows the applicant to indicate whether pending proceedings are active or administratively closed.
  • The new form also directs the applicant to include the “most recent” date of proceedings. The prior version of the form simply asked for “date and location of proceedings,” which made it difficult for applicants to answer properly.  It was unclear whether the applicant should include, for example, the most recent hearing date, an upcoming hearing date, the date the administrative closure or termination of proceedings occurred, or the date of the issuance of the final removal order.  Presumably, applicants should now indicate the most recent date of any court hearing.

Status on June 15, 2012 (Form I-821D Part 1, Question 15)

  • The new 821D now asks about the applicant’s immigration status on June 15, 2012, rather than at the time of entry.  The form lists three potential responses: no lawful status; status expired; and parole expired prior 821D.   This change is consistent with the DACA eligibility guideline providing that applicants must have entered without inspection before June 15, 2012 or their lawful immigration status must have expired as of June 15, 2012.   Individuals who entered the U.S. with a visa or parole that expired as of June 15, 2012 should indicate that their status or parole expired.  Individuals who entered the U.S. without inspection should indicate that they had no lawful status on June 15, 2012.      

Educational Information (Form I-821D, Part 1, Questions 18-20; Form Instructions at pp 6-7) 

  • The new form makes slight modifications to the three questions addressing the applicant's educational background.  Question 18 on current education status now references that this pertains to being in school, having a GED, or having a high school diploma.  Question 20 has been slightly revised to ask for the applicant's date of graduation, indicating that this also may include the date of receipt of a certificate of completion or GED certificate or, if currently in school, date of last attendance.    
  • Revised application instructions now include a more detailed description of the types of acceptable programs and evidence needed to show that applicants meet the DACA education requirement. For example, the instructions provide that an applicant may be considered “enrolled in school” if enrolled in an education, literacy, or career training program aimed at placing the individual in post-secondary education, job training, or employment.  The instructions also provide that applicants may meet the “enrolled in school” guideline by enrolling in an education program that helps them obtain a high school diploma or pass a GED exam or other state-authorized equivalent exam.  The applicant must provide evidence regarding whether the program is funded in whole or in part by federal, state, local, or municipal funds.  If the program is not publicly funded, then applicants have to show that the program has “demonstrated effectiveness.”  Evidence of demonstrated effectiveness includes a letter from a program representative regarding how long the program has existed, the program’s track record, awards/special achievements, and any other explanation of the program’s overall quality.  

Arrival/Residence Information (Form I-821D Part 2, Question 1)

  • A new question and accompanying text in this section should help an applicant indicate his or her eligibility for DACA based on an initial arrival in the U.S. before age 16.  As noted in the form, applicants who first entered the U.S. before age 16 and established residence at that time qualify for DACA, even if they departed the U.S. for some period of time and returned after age 16.   The prior version of the form asked only whether the applicant had arrived in the U.S. on or before June 15, 2007. 
  • Accompanying instructions to the new form list potential documents that may serve as evidence of residence in the U.S. prior to turning 16, including records showing school attendance, employment in the U.S., or residence in the U.S. for multiple years. 

Juvenile Delinquency Dispositions  (Form I-821D, Part 3, Question 1)

  • Question 1 in this section of the form asks whether the applicant has ever been arrested, charged with, or convicted of a felony or misdemeanor in the United States.  The old form was silent as to whether this question required the disclosure of juvenile offenses, which are not considered to be convictions under immigration law.  The new form, however, specifically states that juvenile offenses should be disclosed. However, the form does note that applicants do not need to submit accompanying court records where such disclosure is prohibited under state law.
  • CLINIC has joined with other several other organizations in advocating that USCIS not consider juvenile offenses in determining DACA eligibility.  In particular, CLINIC has raised the concern that differences in state laws regarding access to juvenile records makes it difficult for USCIS to treat applicants uniformly.  Under current policy, certain applicants have to divulge juvenile records that may negatively impact their cases while others are exempt from this requirement. For this reason, CLINIC will continue to advocate with USCIS to reconsider this policy regarding disclosure of juvenile delinquency offenses and records. 

Form Preparer (Form I-821D part 4 )

  • Form I-821D now asks the applicant to indicate whether anyone helped prepare the application or any portion of it.  If the applicant answers "yes" to this question, USCIS will expect that Part 5 of the application form will include a signed declaration by the person or persons who helped prepare the application.  As a result of this change, more individuals involved in application assistance may need to identify themselves as form preparers and complete the declaration in Part 5 of the application.
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New DACA Application Form and Instructions

August 2013

A new edition of the Deferred Action for Childhood Arrivals (DACA) application (Form I-821D) and instructions, dated June 25, 2013, is now available on the USCIS website.  After September 9, 2013, USCIS will only accept this version of the DACA application form.

The new Form I-821D and instructions include the following major changes: 

Removal Proceedings Information (Form I-821D Part 1, Question 3)

  • In the revised application form, USCIS provides greater clarification about how to answer the question regarding whether the applicant is or has ever been in removal proceedings. The form now includes a list of types of removal proceedings (e.g. exclusion or deportation, INA Section 240 removal proceedings, expedited removal proceedings), which should help an applicant identify whether he or she has been in or is currently subject to removal proceedings.  The revised form also allows the applicant to indicate whether pending proceedings are active or administratively closed.
  • The new form also directs the applicant to include the “most recent” date of proceedings. The prior version of the form simply asked for “date and location of proceedings,” which made it difficult for applicants to answer properly.  It was unclear whether the applicant should include, for example, the most recent hearing date, an upcoming hearing date, the date the administrative closure or termination of proceedings occurred, or the date of the issuance of the final removal order.  Presumably, applicants should now indicate the most recent date of any court hearing.

Status on June 15, 2012 (Form I-821D Part 1, Question 15)

  • The new 821D now asks about the applicant’s immigration status on June 15, 2012, rather than at the time of entry.  The form lists three potential responses: no lawful status; status expired; and parole expired prior 821D.   This change is consistent with the DACA eligibility guideline providing that applicants must have entered without inspection before June 15, 2012 or their lawful immigration status must have expired as of June 15, 2012.   Individuals who entered the U.S. with a visa or parole that expired as of June 15, 2012 should indicate that their status or parole expired.  Individuals who entered the U.S. without inspection should indicate that they had no lawful status on June 15, 2012.      

Educational Information (Form I-821D, Part 1, Questions 18-20; Form Instructions at pp 6-7) 

  • The new form makes slight modifications to the three questions addressing the applicant's educational background.  Question 18 on current education status now references that this pertains to being in school, having a GED, or having a high school diploma.  Question 20 has been slightly revised to ask for the applicant's date of graduation, indicating that this also may include the date of receipt of a certificate of completion or GED certificate or, if currently in school, date of last attendance.    
  • Revised application instructions now include a more detailed description of the types of acceptable programs and evidence needed to show that applicants meet the DACA education requirement. For example, the instructions provide that an applicant may be considered “enrolled in school” if enrolled in an education, literacy, or career training program aimed at placing the individual in post-secondary education, job training, or employment.  The instructions also provide that applicants may meet the “enrolled in school” guideline by enrolling in an education program that helps them obtain a high school diploma or pass a GED exam or other state-authorized equivalent exam.  The applicant must provide evidence regarding whether the program is funded in whole or in part by federal, state, local, or municipal funds.  If the program is not publicly funded, then applicants have to show that the program has “demonstrated effectiveness.”  Evidence of demonstrated effectiveness includes a letter from a program representative regarding how long the program has existed, the program’s track record, awards/special achievements, and any other explanation of the program’s overall quality.  

Arrival/Residence Information (Form I-821D Part 2, Question 1)

  • A new question and accompanying text in this section should help an applicant indicate his or her eligibility for DACA based on an initial arrival in the U.S. before age 16.  As noted in the form, applicants who first entered the U.S. before age 16 and established residence at that time qualify for DACA, even if they departed the U.S. for some period of time and returned after age 16.   The prior version of the form asked only whether the applicant had arrived in the U.S. on or before June 15, 2007. 
  • Accompanying instructions to the new form list potential documents that may serve as evidence of residence in the U.S. prior to turning 16, including records showing school attendance, employment in the U.S., or residence in the U.S. for multiple years. 

Juvenile Delinquency Dispositions  (Form I-821D, Part 3, Question 1)

  • Question 1 in this section of the form asks whether the applicant has ever been arrested, charged with, or convicted of a felony or misdemeanor in the United States.  The old form was silent as to whether this question required the disclosure of juvenile offenses, which are not considered to be convictions under immigration law.  The new form, however, specifically states that juvenile offenses should be disclosed. However, the form does note that applicants do not need to submit accompanying court records where such disclosure is prohibited under state law.
  • CLINIC has joined with other several other organizations in advocating that USCIS not consider juvenile offenses in determining DACA eligibility.  In particular, CLINIC has raised the concern that differences in state laws regarding access to juvenile records makes it difficult for USCIS to treat applicants uniformly.  Under current policy, certain applicants have to divulge juvenile records that may negatively impact their cases while others are exempt from this requirement. For this reason, CLINIC will continue to advocate with USCIS to reconsider this policy regarding disclosure of juvenile delinquency offenses and records. 

Form Preparer (Form I-821D part 4 )

  • Form I-821D now asks the applicant to indicate whether anyone helped prepare the application or any portion of it.  If the applicant answers "yes" to this question, USCIS will expect that Part 5 of the application form will include a signed declaration by the person or persons who helped prepare the application.  As a result of this change, more individuals involved in application assistance may need to identify themselves as form preparers and complete the declaration in Part 5 of the application.
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Webinar - The Implementation of DACA in the States and Lessons Learned for Legalization

This webinar is for legal service providers, immigrant advocates, educators, faith leaders, employers, community organizers, and others helping DREAMers apply for DACA or navigate work, school, and life after receiving DACA. Have you had issues helping DACA applicants meet the education eligibility requirements, obtain juvenile records, or access scholarships or loans? Have you or your DREAMers encountered hesitation, confusion or obstruction from state and local actors in understanding what DACA means and what rights DACA grantees have with respect to employment or access to driver's licenses, higher education or health care? We discuss these issues and suggest strategies for advocating on behalf of individual DREAMers as well as broader efforts to change states' policies and practices. We also consider how lessons learned from DACA will likely be valuable in implementing a future legalization program.

Date recorded: June 26, 2013

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Arizona and Nebraska Still Battling to Keep DACA Recipients Off the Road (June 2013)

Last August, the Obama Administration began implementing its Deferred Action for Childhood Arrivals (DACA) program – a policy through which certain undocumented individuals receive temporary permission to stay in the U.S. for two years as well as the right to apply for employment authorization. After some initial resistance to issuing driver’s licenses to DACA grantees, most states eventually decided to do so. At this time, only two states – Arizona and Nebraska – continue to deny state driver’s licenses or identification cards to DACA recipients.   

In November 2012, a number of civil rights organizations filed a class-action lawsuit on behalf of the Arizona DREAM Act Coalition and other young immigrants, challenging the Executive Order issued by Governor Brewer of Arizona on August 15, 2012 that denied state benefits, including driver’s licenses, to DACA grantees.  The lawsuit alleged that Arizona’s policy violates the Supremacy and Equal Protection clauses of the U.S. Constitution and requested a preliminary injunction in the form of a court order directing Arizona to stop enforcing its policy of denying driver’s licenses to DACA recipients. On May 16, 2013, a U.S. District Judge rejected the argument that federal law preempted the Governor’s order. However, the court concluded that the plaintiffs’ allegation that they are being denied equal protection is likely to succeed at a future hearing on the full merits of the case. The equal protection argument is based on the fact that DACA recipients are being denied Arizona driver’s licenses while other noncitizens who have received deferred action status and work authorization from the federal government under different programs are issued licenses. According to the court’s order , Arizona can continue its policy for now.  However, the court will set a full hearing for the DACA plaintiffs to prove that they are being denied equal protection under Arizona’s law. At that time, the court may order Governor Brewer to halt her policy of denying driver’s licenses to DACA recipients.

Following Governor Brewer’s lead, on August 17, 2012, Nebraska Governor Heineman declared that his state would not issue driver’s licenses or other public benefits to DACA grantees. Two lawsuits have been filed against the Nebraska Department of Motor Vehicles (DMV) which interpreted the Governor’s announcement as a directive to deny licenses to DACA grantees.  Like in Arizona, the DMV refuses to accept the work authorization permits of DACA recipients as proof of eligibility for driver’s licenses but continues to issue licenses to noncitizens with deferred action work permits through other programs. The lawsuit filed by the Mexican American Legal Defense and Educational Fund (MALDEF) alleges violations of the Supremacy and Equal Protection clauses of the U.S. Constitution. The case brought by the ACLU of Nebraska alleges that the DMV implemented this policy in violation of the Due Process clause of the state Constitution and circumvented the state’s Administrative Procedures Act, which requires published notice and a public hearing before changing such a policy.

 

This document was prepared in June 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle and Advocacy Intern Casey Lee. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen at jriddle@cliniclegal.org or (202) 635-7410.

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DACA Evaluation: Beyond the Numbers

January 23, 2013

Now that your agency has assisted numerous clients in receiving their DACA approval, it is time to step back and evaluate the success of your agency’s response.  Was your program ready for DACA?  Do you have the data to justify the support you have received?  What have you learned?  How has your program grown?  Will you be ready for the next change in immigration law or policy?  Join CLINIC’s capacity building staff to learn about strategies for data collection, program evaluation, and documenting outputs and outcomes.  We will also cover how to use information from your DACA program evaluation to plan and prepare for comprehensive immigration reform.

Please note that audio begins at minute 2:40 of the recording.

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Update on Deferred Action for DREAMers

USCIS Director Alejandro Mayorkas shared additional details on the June 15th Deferred Action policy memorandum on a Stakeholder Teleconference.  All the new details can be found on the USCIS website at: www.uscis.gov/childhoodarrivals.  Under this new administration policy, DHS will be able to grant deferred action to certain qualifying young people, often known as DREAMers, who have fulfilled age, residency, and educational or military requirements.

Join CLINIC's Advocacy, Capacity Building, and Training and Legal Support staff for a FREE webinar that will cover a summary of the updates shared on this afternoon’s teleconference as well as how to prepare your organization for this new program.

Held on August 6, 2012.

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Update on Deferred Action for Childhood Arrivals

USCIS Director Alejandro Mayorkas shared additional details on the June 15th Deferred Action policy memorandum on a Stakeholder Teleconference.  All the new details can be found on the USCIS website at: www.uscis.gov/childhoodarrivals.  Under this new administration policy, DHS will be able to grant deferred action to certain qualifying young people, often known as DREAMers, who have fulfilled age, residency, and educational or military requirements.

Join CLINIC Advocacy, Capacity Building, and Training and Legal Support staff for a webinar that will cover a summary of the updates shared on this afternoon’s teleconference as well as how to prepare your organization for this new program.

Held on August 6, 2012.

Toolkit for Deferred Action for Childhood Arrivals (DACA) Workshops

A group application workshop is a one-day, and in some cases two-day, community even that brings professionals and trained volunteers together to assist childhood arrivals or “DREAMers” in completing applications for Deferred Action.  The workshop is an essential tool for efficiently and effectively providing application assistance to large numbers of people.  The success of the workshop model depends on careful planning, thorough training of staff and volunteers, and high quality services.  The purpose of this toolkit is to help charitable immigration programs and their volunteers achieve a successful workshop.  The forms and sample documents can be used as is or adapted by local programs for their own needs.

We welcome your feedback on this toolkit and its utility.  Also, if you have documents your agency has developed that you would like to send us for inclusion in the toolkit, or suggestions for additional materials to include, please send these to msardone@cliniclegal.org.

General

CLINIC Webinar “Preparing your Program for Implementing Deferred Action for DREAMers” 7/10/12

Planning and Organizing

Applicant Outreach

Volunteer Recruitment and Training

Part 1 - DACA Overview and the Eligibility Guidelines
Part 2 - How to Complete the Application Forms
Part 3 -  Overview of the DACA Workshop Model

Forms to Use in the Workshop

Preparing Application Attachments:

  1. Absences from U.S. Worksheet
  2. Address worksheet
  3. Affidavit checklist
  4. Sample Summary Translation of Birth Certificate

Resources:

  1. Locate a GED course or testing center near you
  2. State education organizations with information on GED programs
  3. How to register with Selective Service
  4. How to request a Criminal Background Check
  5. How to request juvenile records
  6. Own the Dream FOIA Guide - How to get a copy of your initial DACA request

USCIS Documents

Additional Resources

 

 

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Preparing for Deferred Action

This webinar discusses what we know so far about the new deferred action policy for undocumented immigrants who entered the U.S. as children, including basic eligibility requirements, how to document eligibility, "red flags" for applicants, and advocacy on the policy's implementation. Panelists include Jennie Guilfoyle, Training and Legal Support Attorney at CLINIC; Paromita Shah, Associate Director of the National Immigration Project of the National Lawyers Guild; Don Lyster, Director of NILC's Washington, DC office; and Lorella Praeli of United We Dream.

Unable to display content. Adobe Flash is required.

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Preparing your Program for Implementing Deferred Action for Childhood Arrivals

As everyone awaits the details on how the new Deferred Action program will be implemented, your agency should start taking steps to prepare.  This webinar discusses different strategies for meeting the increased demand for services.  Staff from CLINIC affiliates discuss what strategies have worked for their programs including group-processing workshops, coalition building, information sessions, and one-on-one processing models.  Join staff from CLINIC's Advocacy, Capacity Building, and Training & Legal Support sections for this webinar to make sure your agency is prepared to serve clients under the new program.

Held on July 10, 2012.

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Free Webinar on Deferred Action for DREAM Act Children

As you know, the President recently announced a new process where certain children will be able to apply for deferred action status and employment authorization. We are still waiting for the details on how this program will be implemented.  This webinar reviews and summarize what we do know.  It also discusses strategies for dealing with the press, communicating with clients, performing outreach to the community, and preparing your program for increased demand for services.  

Join staff from CLINIC's Advocacy, Training & Legal Support, and Capacity Building sections for this important update.

Held on June 20, 2012.

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