WHAT IS DEFERRED ACTION?
- It is the exercise of discretionary authority by the Department of Homeland Security to allow certain individuals the right to live and work in the United States. Individuals who qualify and get deferred action will not accrue unlawful presence in the country.
- Deferred action is a temporary stop-gap measure lasting two years, which can be renewed.
- Deferred action does not confer anyone with legal status or a pathway to citizenship. It also does not prevent DHS from re-initiating removal proceedings against individuals.
WHO IS ELIGIBLE FOR DACA?
Individuals must meet all of criteria laid out below, in order to qualify:
As you can see, there are a myriad of requirements for DACA but the gist of it is that the applicant must have come to the United States before the age of 16, be at least 15 years old at the time of initial application, must have resided in the U.S. continuously since June 15, 2007, have been under the age of 31 on June 15, 2012 and out of status at that time, and must be currently in school or have graduated with a high school diploma or GED or honorably discharged from the military.
WHAT IS THE LATEST INFORMATION WITH REGARDS TO DACA?
The Trump Administration, pressured by 9 attorney generals from various states, decided to phase out the Deferred Action for Childhood Arrivals program, which gave temporary work permits and protection from deportation to almost 800,000 people. An official DHS memorandum rescinding DACA is here and an FAQ developed by USCIS is here. After much litigation, the United States Supreme Court ruled that the Trump Administration had not followed proper rule-making procedures in seeking the end of DACA. Thereafter, acting Secretary of Homeland Security, Chad Wolf, issued a new memorandum seeking to limit the DACA program, reducing the renewals to two years, limited advance parole, and stating that the administration would not accept any new applications. This new memo was also struck down by the courts as Wolf had not been lawfully appointed to his position and he was not authorized to issue this memo. On December 4, 2020, a federal judge ordered the Trump administration to begin accepting new applications for the Deferred Action for Childhood Arrivals program and otherwise restore the program to the form it took prior to Sept. 5, 2017. The USCIS complied and the program has been fully restored as of December 7, 2020. However, this may not be the last time we hear about this matter so it is important for potential applicants to apply now while the program has been restored.
I HAVE NEVER APPLIED FOR DACA. HOW DO I APPLY?
Here’s an updated checklist containing the requirements and the supporting evidence that you need to gather.
I CURRENTLY HAVE DACA AND IT EXPIRES IN THE NEXT 6 MONTHS. CAN I FILE FOR RENEWAL?
Yes. If your DACA is expiring this year or even next year, you can file for a renewal now.
WHAT IS USCIS DOING IN RESPONSE TO THE JUDICIAL ORDER TO FULLY RESTORE DACA?
Effective December 7, 2020, U.S. Citizenship and Immigration Services (USCIS) is:
- Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Extending one-year grants of deferred action under DACA to two years; and
- Extending one-year employment authorization documents under DACA to two years.
I WAS ISSUED A ONE-YEAR RENEWAL ONLY. WHAT DO I DO?
The court order told USCIS to restore DACA to two years. To comply with the order, USCIS has stated it would change the one-year approvals to two year approvals and reissue the approval notices and EADs. We do not have a timeline on when this will happen as of now.
I USED TO HAVE DACA BUT IT EXPIRED OR WAS TERMINATED. CAN I FILE FOR RENEWAL?
Perhaps. Renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA. If it has been more than one year since your DACA was terminated or expired, you can nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions.
I NEVER APPLIED FOR DACA BUT I AM ELIGIBLE. SHOULD I APPLY NOW?
Yes, you are eligible to apply, and you should speak to an attorney or BIA accredited representative if you need more information or help in applying.
CAN I APPLY FOR ADVANCE PAROLE?
Yes, individuals with DACA can apply for advance parole for educational, humanitarian and employment-based reasons by filling out Form I-131, paying the current fees for advance parole ($575), and providing USCIS with the requisite supporting evidence. Additional guidance for DACA advance parole is available here.
WHEN CAN I GET A SOCIAL SECURITY NUMBER?
Nowadays, if the applicant requests that USCIS share their information with the Social Security Administration, social security cards are automatically issued by the Social Security administration upon the approval of a work permit.
MY DACA IS NOT EXPIRED AND DOES NOT EXPIRE FOR THE NEXT 6 MONTHS? CAN I STILL APPLY?
Yes. While USCIS recommends filing for renewal between 150 and 120 days from when your DACA expires, requests received earlier than 150 days should be accepted as they were prior to September 2017. However, this could result in an overlap between your current DACA and your renewal. This means your renewal period may extend for less than a full two years from the date that your current DACA period expires.
I HAVE NEW CRIMINAL HISTORY. SHOULD I APPLY?
Please speak to an attorney or accredited BIA representative as to whether your criminal records makes you ineligible for DACA. Your attorney should be able to advise you on the immigration consequences of criminal convictions, and recommend post-conviction relief, that may make you eligible for DACA again.
I CURRENTLY HAVE DACA. WHEN DO I LOSE THE ABILITY TO WORK LEGALLY AND PROTECTIONS AFFORDED TO ME BY DACA?
Current work permits will remain valid until their expiration date. The work permits are not being canceled or rescinded. For example, if your work permit expires December 10, 2020, it will remain valid until December 10, 2020.
I WANT TO RENEW MY DACA BUT CANNOT AFFORD THE FEES?
We are working with community partners and private individuals to raise additional emergency funds to be able to provide the $495 fee for members in our community. Various non-profits have also stepped up efforts to provide full financial scholarships for DACA applications fees ensure that those who can renew their DACAs can do so.
CAN I CONTINUE TO WORK IF AND WHEN DACA EXPIRES?
When your current DACA work permit expires, you will be out of status, and start accruing unlawful presence. It is critical that you speak with your immigration attorney about other legal options that may exist for you to continue working and legally residing in the United States.
See more guidance with regards to DACA and your rights in the workplace here.
I TRUSTED THE GOVERNMENT WITH MY INFORMATION WHEN I APPLIED FOR DACA. CAN THEY USE IT TO DEPORT ME?
Generally, USCIS has stated that information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria.
The vast majority of DACA recipients, unless they have a final order of removal, cannot be simply picked up by CBP, ICE and deported. They are entitled to proper notice and court proceedings conducted before an immigration judge, and these proceedings can take many years to adjudicate.
MY DACA WORK PERMIT WAS LOST. CAN I APPLY FOR A REPLACEMENT?
If an individual’s still-valid work permit is lost, stolen, or destroyed, they may request a replacement work permit. The replacement work permit will have the same validity period as the lost/destroyed/stolen work permit so sometimes an attorney may advice you to file a renewal application.