U.S. Citizenship and Immigration Services (USCIS) provided details last month on how it will resume the Deferred Action for Childhood Arrivals (DACA) program following the U.S. Supreme Court’s decision in June.
The USCIS announcement came on August 22, 2020, more than two months after the Supreme Court ruled that the Trump administration illegally ended DACA in 2017 by failing to follow the Administrative Procedures Act. Under that decision, we expected the DACA program to return to what it was when the Obama administration created it in 2012: DACA status and associated work permits valid for two years and eligibility for obtaining advance parole (travel document).
However, USCIS is continuing the DACA program largely as it was after a series of lower court DACA rulings and prior to the Supreme Court decision: It will still not accept new DACA applications from individuals who have never applied for DACA before. In addition, USCIS has made renewing DACA and associated work permits more burdensome.
Going forward, USCIS will:
- Reject all new DACA applications and return any new, currently pending DACA applications
- Continue to renew DACA status and associated work permits, but only for one year.
- Place limits on how early individuals can file for renewal.
- Adjudicate DACA applications from individuals seeking to reinstate their lapsed DACA status
- Accept requests for advance parole—a travel document that shows USCIS gives permission to its holder to reenter the U.S. after traveling abroad—but only in limited cases
New and Pending Applications
When the Trump administration rescinded the DACA program in 2017, USCIS stopped accepting initial DACA applications from individuals who had never applied for DACA before—and that will continue. USCIS will reject any new DACA applications and accompanying work authorization applications it receives and any pending new applications. The agency will return any application fees for pending applications.
The big change is how often Dreamers will have to go through the renewal process for DACA status and work permits: Before the Supreme Court ruling, DACA status and work permits were renewed for a two-year period, which was the case when the DACA program began in 2012. But now, USCIS will limit the validity period to just one year.
In addition to the shorter validity period, DACA renewal applications must be filed between 150 and 120 days before they are set to expire. USCIS will reject any request filed more than 150 days in advance of the expiration. Previously, USCIS accepted renewal requests up to 365 days in advance.
At least USCIS won’t rescind any two-year DACA grant or associated work permit unless there’s a legal reason to do so. And it will replace any two-year work permits that are lost, stolen, or damaged with the same two-year validity period unless there’s a legal issue.
Before the Supreme Court decision, USCIS accepted DACA applications from individuals who had previously received DACA, but whose DACA designation had lapsed. USCIS will continue to adjudicate these applications, so nothing has changed.
Prior to the Supreme Court decision, USCIS had stopped issuing advance parole to DACA recipients. Now, USCIS will accept and adjudicate advance parole applications if the applicant can show that any of the following apply:
- Urgent humanitarian reasons
- Offers significant public benefit, including national security interests or federal law enforcement interests
- The need to obtain life-sustaining medical treatment not otherwise available outside the U.S.
- The urgent need to take care of the immediate safety, well-being, or care of an immediate relative, particularly minor children
USCIS states that even if one of these reasons applies, it may still deny the advance parole application. Moreover, USCIS warned that an advance parole document does not guarantee reentry to the U.S. That has always been the case, thanks to the wide discretionary authority that customs officers have. USCIS emphasized that DACA recipients risk losing their designation if they travel outside of the U.S. without receiving advance parole. That has always been the case.
What to Do?
The Alcorn Immigration Law team is monitoring the latest immigration policy developments that impact Dreamers and the DACA program. We continue to urge:
- Dreamers to file DACA renewal applications
- Both those with and without DACA protection should explore possible alternative options for remaining legally in the U.S.
- U.S. citizens who are eligible to sponsor parents or other family members for green cards to do so.
We urge employers to support Dreamers by:
- Sponsoring them for an employment green card
- Offering to pay for legal assistance
- Reminding Dreamers to renew DACA and their work permit
- Pressing Congress to enact legislation giving Dreamers a path to citizenship, particularly since the Trump administration continues to pursue eliminating DACA
We Can Help
The Alcorn Immigration Law team firmly believes immigration leads to innovation. If you are a Dreamer or have an employee or a loved one who needs assistance, please contact us.