We would like to inform our readers of very important information relating to the Deferred Action for Childhood Arrivals (DACA) program. Recently, the United States Citizenship and Immigration Services (USCIS) released a new memorandum that explains how the agency will handle new requests for DACA and advance parole requests in light of recent court rulings.
New DACA Requests Will Be Rejected
As clarified by the new memorandum, USCIS has confirmed that it will reject all initial DACA requests and associated applications for Employment Authorization Documents, and return all associated fees to applicants without prejudice. “Without prejudice” means that applicants may reapply for DACA in the future should USCIS choose to accept initial DACA requests at a later time.
DACA Renewal Requests Continue to Be Accepted for those Granted DACA in the past
As before, USCIS will continue to accept DACA renewal requests from aliens who were granted DACA at any time in the past.
In addition, USCIS will continue to accept requests for advance parole that are properly submitted for individuals who can demonstrate that their travel is for any of the following purposes: to support the national security interests of the United States, to support U.S. federal law enforcement interests, to obtain life-sustaining medical treatment not otherwise available to the alien in the U.S., or where travel is needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien (see below).
Please note that even with a valid advance parole document re-entry to the United States is not guaranteed.
DACA Renewals Limited to One-Year Duration
DACA renewal requests that are approved will receive a grant of deferred action and employment authorization for a period of no more than one year. For those that were previously issued a two-year employment authorization card that remains valid, USCIS will not be rescinding these two-year benefits. USCIS may only terminate an alien’s validly issued DACA for failure to continue to meet DACA criteria, including failure to warrant a favorable exercise of prosecutorial discretion.
USCIS will also replace two-year EADs that were lost, stolen, or damaged, with the same two-year validity period, assuming the EAD replacement application is otherwise approvable.
DACA Requests Received 150 Days Before Expiration
USCIS will generally reject requests for DACA renewal received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.
Advance Parole Requests
USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute.
Accordingly, DACA recipients may request advance parole if they have valid DACA and can demonstrate that they warrant the “extraordinary privilege” of being permitted to return to the United States after traveling abroad, even without a lawful immigration status, pursuant to a valid advance parole travel document.
The decision to grant advance parole is entirely discretionary and made on a case-by-case basis. Applicants should be aware that re-entry to the United States after temporary foreign travel (even with a valid advance parole document) is not guaranteed. The risks must be carefully considered with the advice of an immigration attorney.
USCIS has stated that, “While the determination of whether to grant advance parole to a DACA recipient based on exceptional circumstances is a case-by-case assessment involving the assessment of the totality of factors presented, some examples of travel that may fit within the statutory standard for parole include, but are not limited to the following:
- Travel to support the national security interests of the United States;
- Travel to support U.S. federal law enforcement interests;
- Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
- Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.”
However, even where a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.
Grants of Advance Parole Previously Issued Will Not Be Rescinded
USCIS will not rescind any previously granted advance parole documents unless there is another legal reason to do so. USCIS has made clear that entry into the United States with advance parole is not guaranteed. Therefore, DACA recipients who have a validly issued advance parole document should be aware that there may be a risk that they will not be allowed to re-enter after temporarily foreign travel. Applicants should consult with an experienced attorney before making any international travel plans.
We hope this information was helpful and share helpful links where you can find more information about this new guidance
- Policy Memorandum Issued August 21, 2020
- USCIS Implementation of DHS Guidance on DACA Alert
- July 28 Policy Memorandum “the Wolf Memorandum”
- Blog: Supreme Court DACA Decision
- Blog: Casa de Maryland Ruling
Questions? If you would like to schedule a consultation, please text or call 619-569-1768.
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