San Diego Immigration Attorney: Updates on Deferred Action for DREAMers July 24, 2012

Yesterday, July 24, 2012, USCIS San Diego Field Office held a meeting with attorneys, local community based organizations, local governmental organizations and other interested agencies to address the implementation of Deferred Action. Paul Pierre, District Director of San Diego District Office, ICE and CBP representatives were present at the meeting. Attorney Ekaterina Powell from our office was also present at the meeting and her summary is provided below.

During the meeting, DHS provided updates on the implementation of Deferred Action, which is now referred to as DACA (Deferred Action for Childhood Arrivals).

DHS emphasized that DACA is discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. DACA is not the Dream Act, and the use of deferred action provides no pathway to citizenship or permanent residency. Only the Congress may confer these rights.

DHS has announced that it will likely issue guidance on the DACA application process on August 1, 2012 and will start accepting petitions August 15, 2012. Until that time, individuals who want to apply for DACA should gather the required documentation to demonstrate their eligibility.

What Documents may be required?

Documentation of presence and continuous residence may include, but is not limited to, financial records, medical records, school records, employment records, and military records. It is unclear what level of documentation will be required. It is also unclear whether in absence of required documentation USCIS will accept alternative forms of documentation, such as affidavits from individuals who could attest to physical presence or continuous presence requirements. DHS should issue additional guidance about acceptable documentation in the coming weeks.

While DHS continues its efforts to increase staffing of the Service Centers to accommodate DACA filings, it is difficult at this point to predict processing times of the requests. DHS has stated that processing times will be determined once the application process begins depending on the number of applicants. DHS stated that it is likely that the process will take 6-12 months.

While it is still unclear whether there will be a separate fee for DACA request, DHS has announced that it will not exempt DACA applicants from Work Authorization Application fee and biometrics fee, which amount to $465 per applicant.

After an application is filed, DHS will capture biometrics of DACA applicant. If the applicant does not provide the required documentation to demonstrate eligibility, USCIS will use its established process of issuing Requests for Evidence. DHS has informed the public that certain applicants selected randomly as well as applicants meeting certain fraud profile or criminal profile will be referred to a local CIS office for an interview.

Although the meeting with DHS has clarified some of the important concerns of the public, it left unanswered many important questions regarding the implementation of DACA.

Specifically, it is still unclear whether individuals granted deferred action will be able to travel abroad. Even if overseas travel is permitted, it may not be in the best interests of the DACA applicants. Although unlawful presence will not accrue during any deferred action period, prior periods of unlawful presence may render individuals who leave the Untied States inadmissible for 3 or 10 years under existing law. Thus, it is critical for DACA applicants to first consult an immigration attorney before leaving the U.S. even if travel is permitted.

Major Concerns

Another issue that keeps many individuals from considering DACA is fear for themselves, if they are denied deferred action, and fear for their family members. It is not clear at this point whether the information regarding legal status of applicants’ parents will be taken and whether this information will be shared with Immigration and Customs Enforcement. Immigration Advocacy groups are currently in the process of discussing confidentiality concerns with DHS and advocating for guidance prohibiting information provided from being used to initiate or continue to pursue removal proceedings.

Before DHS issues guidance on the application process, individuals who would like to apply for Deferred Action should gather as much documentation as possible to demonstrate eligibility.

If you believe that you meet the eligibility provisions of DACA, feel free to contact our office for a consultation and preliminary review of your records. We are now forming an interest list.

Watch all our You Tube Videos on Deferred Action here:

– Anticipated 1.4 million applicants, but that estimate keeps growing (initially started at 800,000)
– Applications will likely be processed at the Service Centers and then forwarded to District Offices for interviews (if needed; e.g. criminal issues)
– Currently hiring about 400 people for the Service Centers in anticipation of the landslide of applications to be filed
– Service Centers nay be sending some work to the local offices for adjudication so that they can clean out their pipelines to be prepared for the DACA cases
– 100% of cases will be scheduled for biometrics which means that the ASCs will become backlogged. This will impact the cycle time for N-400s and I-485s adjudicated at the local offices. Will cycle times be more than 6 months? Yes, likely. ASCs will need more machines and more contractors to handle the workload
– San Diego office is gearing up for training for what will be adjudicated at the local offices
– Form – likely will be an I-821D. Cannot use the I-821 because it has a fee ($50). The fee impact study had only been conducted in relation to TPS and not DACA and not enough time to do a fee impact study before August 15th. So, if they make a “D” form, no fee will be required and no fee impact study necessary. Likely that they will do a fee impact study and charge in the future.

– Biometrics fee will be charged
– I-765 will need to be filed for EAD card and fee will be imposed for the I-765 form
– Applications will likely be filed at lockbox (likely Chicago or Phoenix) and then an A file will be created
– Receipt Notices will likely not be generated for 60-90 days because of the initial onslaught of cases they are expecting to be filed as of August 15th
– Biometrics may likely not be scheduled for another 30 to 60 days following issuance of Receipt Notice
– Likely that RFEs may be issued in a majority of cases
– If I-821D is approved, the I-765 will then be adjudicated (likely to be adjudicated immediately after approval of I-821D so don’t have to wait an additional 90 days). There is no 90 requirement to process the I-821D so the filing of an I-765 with the I-821D does not start the 90-day clock. EAD card will be granted for a period of 2 years from the date of approval of I-765.

– As of yesterday, there will not be any appeal rights
– Will DACA applicants be able to travel? Doÿÿ€™t know yet
– What happens at the end of the 2-year Deferred Action period? Donÿÿ™t know yet.

– May be able to “waive” requirements for a government issued ID in some cases but as of now, the Mexican consulates are gearing up to aid people with obtaining birth certificates and issuing passports. Student IDs should list both last names for Mexicans so that it will be easier to assist with obtaining birth certificates and processing passport applications.

– Residence requirement – continuous physical presence (in the aggregate) for 5 years – temporary breaks are okay
– Apply for DACA concurrently with a VAWA or U or T case? Yes, but they will need to “marry” all cases together with the A file so the VAWA or U or whatever case may be delayed while adjudicating and/or inputting information for A file for DACA.

notes of
Kimberley Best Robidoux, AILA member