Articles Posted in Deferred Action and DREAM Act Students

Recently, USCIS posted on its website that those who were given DACA in August are coming up on the expiration of their deferred action.  The recent post notifies individuals that If you wish to renew your deferred action for another two year period, Form I-821D must be submitted to USCIS again.  This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization (along with the accompanying filing fees for that form, totaling $465), and Form I-765WS.

USCIS also warns that if your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action.  It is for these reasons that USCIS encourages submission for renewal 120 days before the current period of deferred action under DACA expires.

Also as a reminder, USCIS has issued further guidance on renewing DACA by stating “An individual whose case was initially deferred under DACA by ICE may be considered for Renewal of DACA from USCIS if he or she:

On August 28, 2013, an application advisory on Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients was published by American Immigration Council Legal Action Center.

Based on the advisory, this article summarizes advance parole eligibility, application procedures and documentation requirements for DACA recipients.

I. Advance Parole Eligibility
Prior to applying for advance parole, an individual must apply for and receive a DACA approval. 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 he or she is traveling abroad for humanitarian, employment, or 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. USCIS construes the humanitarian, educational, and employment categories broadly. However, traveling abroad for vacation is not a valid purpose for advance parole.

II. 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.

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With the focus now shifted to the House to work on the immigration bill the Senate recently passed, it would seem like common sense that the situation for DREAMers would see some improvement since Obama instituted his own Dream Act. A recent look at the laws of some states clearly suggest otherwise.

One question came up once this policy was instituted was whether or not Dreamers should be able to apply for a driver’s license. Nearly every state has since reached the right conclusion, that Dreamers who now live here legally should be able to drive legally, too, as a straightforward matter of public safety and common sense. Some states have gone further to grant licenses to all qualified applicants regardless of immigration status. New Mexico and Washington already had such laws and were joined this year by Illinois, Oregon, Maryland, Vermont, Connecticut, Nevada and Colorado. California is considering doing the same. Utah issues a certificate to the undocumented that is valid for driving but not for identification. At least based on the actions of these states it appears that more states want to ensure that there are licensed drivers on the road that can be held accountable for anything that happens.

Arizona and Nebraska are two states that persist in keeping immigrants out of the driver’s seat, singling out Dreamers as ineligible for driver’s licenses. In Arizona, made infamous for its anti-immigrant laws, such action is all-but-official state policy. In Nebraska, Gov. Dave Heineman, said in a news release in August: “The State of Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”

Nearly 102,965 young undocumented immigrants have been granted temporary permission to live and work in the United States, according to statistics released recent from U.S. Citizenship and Immigration Services (USCIS). Total number of applications received is 367,903. Nationals of Mexico are leading the list with 258,708 applicants.

An estimated 1.7 million undocumented immigrants nationwide could potentially be eligible for the program, according to the Migration Policy Institute.

We will keep you posted with new numbers in 2013.

The Center for American Progress and the Partnership for a New American Economy released a joint study which found that up to 223,000 of the 2.1 million young illegal immigrants eligible for the DREAM (Development, Relief and Education for Alien Minors) Act would have an easier time enrolling, paying for and finishing college, which would lead to the increased economic gains. The report concludes that If illegal immigrants brought to the United States as children were given legal status, their improved access to college and better jobs would add $329 billion and 1.4 million jobs to the nation’s economy over two decades, according to a report set for release today.

“This report proves a fundamental truth about the contributions of immigrants to the American economy: we absolutely need them to continue our economic growth,” New York City Mayor Michael Bloomberg said in a statement.

The report provides an argument in favor of the DREAM Act, which would grant legal residency to illegal immigrants brought to the country as children and have completed some college or served in the military. When the DREAM Act was first introduced in 2001, it was a bipartisan effort sponsored by Sens. Dick Durbin, D-Ill., and Orrin Hatch, R-Utah. It has since become more partisan. The House of Representatives passed it in 2010 with minimal GOP support, and it failed in the Senate when only three Republicans voted for it.

According to a recent update from AILA, DHS is in the process of changing its policy on minors being charged with making false claims to U.S. citizenship. Details are limited at this time.

We understand that DHS has begun implementation of its new policy, which AILA believe will protect certain minors from a false claim charge, and that written guidance will be forthcoming. The Department of State has indicated that it will follow the new DHS policy. We will continue to monitor this closely and will post additional details as they become available.

A foreign national who falsely represents him– or herself as a US Ciitizen in order to obtain a benefit under Immigration Law or any other federal or state law is inadmissible. There is no waiver available.

Since Deferred Action was announced, many many questions are still unanswered with respect to this program. In this post we have provided some of the recent few updates.

Temporary deferral of removal only means that DHS will not initiate or continue removal proceedings against eligible applicants during the relevant relief period. The applicant will similarly stop accruing “unlawful presence” which would otherwise bar eligibility for future relief. Deferred action does not confer lawful status or guarantee a path to citizenship; it does not excuse unlawful presence (UP) accrued before or after the relief goes into effect.

This means you continue to accrue UP until your case is approved, denied, or after the period of granted relief has passed without being renewed. However, deferred action does provide employment authorization. This allows you to apply for permission to work in the U.S. by showing “economic need.” DHS retains the discretion to terminate or renew the relief at any time.

There has been much discussion about counseling individuals applying for Deferred Action for Childhood Arrivals (DACA), employers that offer jobs to undocumented workers may have specific issues to consider. What issues an employer must consider as they are asked to produce documents that will support their employee’s eligibility for DACA. As DACA applicants are, by definition, undocumented youth, employers needs to consider a number of important implications regarding the employer’s potential exposure under the employer sanctions laws. The AILA Verification and Documentation Liaison Committee issued a good practice alert on this topic as well.

A determination that an employer has constructive knowledge that an employee is not work authorized can result in employer liability in the event of an ICE raid or audit. Constructive knowledge is defined as knowledge that can be fairly inferred through the existence of particular facts and/or circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Unfortunately, constructive knowledge in this context can be imputed to an employer who fails to complete or improperly completes the Form I-9; acts with reckless and wanton disregard for the legal consequences of permitting individuals to introduce an unauthorized alien into its workforce or to act on its behalf; and fails to take reasonable steps after receiving information that the employee may be an alien who is not work authorized, such as the request by the employee for evidence needed to file the DACA application.

While an employer may be tempted to terminate the employment of an employee based upon the DACA issue, this action could be discriminatory and could result in lawsuits filed by the terminated employee or by the Equal Employment Opportunity Commission (EEOC), or both.

In a recent response to the deferred action executive order, California lawmakers approved a bill on Thursday to allow some young illegal immigrants who came to the United States as children to obtain driving licenses.

The bill, which passed the state Assembly by a 55-15 vote before being sent to the desk of Democratic Governor Jerry Brown, was introduced following the announcement of a federal program to relax deportation rules and grant some young immigrants temporary legal status in the United States.

“It is a victory for those who were brought here through no fault of their own, played by the rules, and are only asking to be included in and contribute to American society,” the bill’s sponsor, Assembly member Gilbert Cedillo, said in a statement