DEFERRED ACTION FOR CHILDHOOD ARRIVALS; THE FIGHT IS NOT OVER!
On June 18, 2020, the Supreme Court of the United States held 5-4 that the decision by the Department of Homeland Security to terminate DACA was reviewable in federal court and also “arbitrary and capricious” under the Administrative Procedure Act (APA). The Dreamers won, and initial DACA applications and renewals were being submitted to the USCIS. On July 28, 2020, however, the Department of Homeland Security, in complete defiance of the Supreme Court’s decision, issued a memorandum that stated:
- All initial DACA applications would be rejected by the USCIS and the filing fees returned;
- DACA renewals would be accepted but DACA and the Employment Authorization would be issued for one (1) year and can be renewed annually; and
- Advance Parole based upon DACA would only be granted in exceptional circumstances.
The Acting Secretary said in this memorandum that he is considering ending the DACA program in its entirety, which would include any renewals. There is no timeline as to when this will happen.
Memorandum, Chad F. Wolf, Acting Secretary, United States Department of Homeland Security, Reconsideration of the June 15, 2012 Memorandum Entitled“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (July 28, 2020)
Do I apply for initial DACA even though it will be rejected by the USCIS?
It is important to consult with an attorney to determine if filing for initial DACA knowing that it will be rejected is right for you. There may be a benefit to such a filing including being part of a punitive class of persons who may be able to seek a remedy in federal court. In other words, there could be a good reason to file knowing that you will not receive DACA but you will receive a rejection notice. That notice could prove to be very important. On the other hand, filing such an application may mean that the U.S. government has your personal information and, depending on your criminal and immigration history, may put you at risk. This is also why it is important to consult an immigration attorney before you file for DACA. This includes any renewal of DACA.
Do I qualify for DACA?
Yes, you do if you meet ALL of these:
- You are currently 15 years old or older; unless you have a final order of removal or are currently in removal proceedings. Then you can be under 15 years old.
- Were under the age of 31 as of June 15, 2012; Your age is frozen on that date, meaning that even if you are over 31 years old now, you may still qualify. If you were born on or after June 16, 1981, you qualify for the DACA age limits.
- Came to the United States before your 16th birthday; If you came to the United States on your 16th birthday or anytime after that you did not qualify.
- Have continuously resided in the United States since June 15, 2007, up to the present time; You could have left the U.S. for a short period of time and still qualify for DACA if your departure from the U.S. was brief, casual innocent and not related to an order of removal.
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; If you are not in the United States now, you cannot apply for DACA.
- Had no lawful status on June 15, 2012; Therefore, if for example, you were in the United States on a student visa, or tourist visa on June 15, 2012, you do not qualify for DACA.
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
********You do NOT have to have graduated from high school or received your GED at the time of filing for DACA. You must be enrolled and actively working towards your high school diploma, GED, or attending vocational training or other approved education programs at the time the DACA application is filed.
- Have not been convicted of a felony, significant misdemeanor, or three (3) or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
**********A DUI conviction or Impaired Driving Conviction disqualifies you.
A domestic violence conviction disqualifies you. A simple assault conviction does not disqualify you. If your convictions were all based upon one incident, your multiple convictions may be counted as one conviction and you may qualify. We need to review your conviction record.
I have DACA. Can I renew my DACA?
Yes. If you have been granted DACA before, you can submit an application to renew DACA.
Renewals are now for one (1) year only. They can be renewed annually.
If I had DACA but it expired, can I still renew?
Yes. Depending on how long it has expired will determine the forms and documents that you need to submit to USCIS.
How soon before my DACA expires can I file to renew it?
150-120 days prior to the expiration. Now that DACA is issued for only one year, you will likely have to file a renewal every six (6) months to keep your DACA status.
I have DACA. Can I apply for advance parole that allows me to return to the country after traveling outside it?
USCIS will only consider Advance Parole applications for exceptional circumstances only. This is determined on a case by case basis and there are no guidelines.