On November 12, the U.S. Supreme Court reviewed the federal court cases challenging President Trump’s termination of the Deferred Action for Childhood Arrivals (DACA) program and could issue a ruling by June 2020. Right now, we do not know what the Court will decide, or how it could impact the DACA program and its current recipients.
For now, DACA recipients are still able to submit renewal applications, and U.S. Citizenship and Immigration Services (USCIS) is still accepting DACA renewal applications from anyone who currently has, or previously had, DACA.
USCIS announced that it is closing its offices to in-person services until at least June 4 and this includes biometrics appointments at the Application Support Centers in response to COVID-19. Since USCIS announced their office closure they have made the following changes to the DACA renewal request process while their offices remain closed for in-person services:
- If your biometrics are needed to process your renewal request but the Application Support Center is closed, USCIS may use your previously submitted biometrics, meaning the background check that was used to evaluate your previous DACA request.
- “Wet” signatures (i.e. original, ink signatures) are not required at this time to submit a renewal request. This means you can work with your legal service provider electronically, and do not need to meet them in person, to file your DACA request by mail. Neither the applicant’s nor attorney’s signature needs to be “wet”; it can be a copy of a signature that was scanned/emailed/faxed.
- When USCIS wants you to submit additional evidence to support your DACA renewal request, it will send you a Request for Evidence (RFE). If you decide to respond to an RFE, it’s best that you respond quickly since you must provide the additional evidence normally by the deadline on the RFE. If USCIS sends you a Notice of Intent to Deny (NOID), it is informing you that USCIS doesn’t think you meet the requirements for DACA. If you decide to respond to a NOID, it’s best that you respond quickly because normally if you don’t respond within 33 days, your DACA application will be denied. However, due to COVID-19 concerns, RFE and NOID deadlines have been extended. According to USCIS, “For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.” We recommend that if you decide to respond to RFEs and NOIDs, you do so by the deadline (if you can) to reduce the chance of a delay in the processing of your DACA renewal request. Also, if your circumstances have changed significantly since your last DACA renewal request was granted (for example, you were arrested for, or convicted of, a felony or “significant misdemeanor”), you should first consult with a legal service provider to discuss the potential implications for your DACA renewal.
The following guidance is based on information we currently have and will be updated soon after any new developments, for example, if we see a difference in DACA renewal processing due to USCIS office closures and if a Supreme Court decision in the DACA-related cases affects DACA renewal.
As recommended by USCIS, you should strongly consider applying to renew your DACA before deferred action and your employment authorization document (EAD) expires. (Your EAD is the work permit card that was issued to you when you received DACA.) But don’t wait until the last minute! If you do, your protection might expire and you might start accruing “unlawful presence,” which can make it hard for you to adjust to permanent lawful immigration status in the future. We strongly encourage you to consult with an immigration attorney or Department of Justice-accredited legal representative to file your DACA renewal request.
USCIS has recommended in the past that you submit your DACA renewal application between 150 to 120 days before the date your current DACA and EAD expire.
We strongly recommend that you consider whether to apply “early” for renewal, meaning earlier than 150 days before your current DACA and EAD expires. USCIS is currently accepting DACA renewal requests — and accepts requests filed earlier than 150 days before the applicant’s DACA expires — and we don’t know what’s going to happen in the future with respect to DACA. So we strongly encourage you to consult with an immigration attorney or Department of Justice-accredited legal representative, to weigh the benefits and risks of applying “early.”
Considerations may include:
- If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them, or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017).
- The processing times listed on the USCIS website range between 5 to 39 months, depending on which service center has your case. These processing times are long and it’s unclear how current they are, but anecdotally we’ve heard that some cases still take only 3-5 months to process. Cases could be processed even faster than that. Consider the possibility, then, that it might take longer for your renewal application to be processed this time than it did when you applied for renewal previously.
- If you apply early and are granted DACA renewal, you should be aware that your “new” DACA and EAD may start being valid before your “old” DACA and EAD expire. Nevertheless, your new work permit will expire two years after its date of approval.
- Consider your specific circumstances. Do you have a scholarship dependent on having DACA? Are you looking for a job or have a job commitment requiring having a valid work permit? If so, you may want to consider applying early to ensure your DACA remains current and you don’t miss out on these opportunities.
In the next few months, you’ll likely hear mixed reports on the fate of DACA and the best way to stay above the noise is to feel assured that you have done everything you can to be protected for as long as possible.
The DACA Renewals webpage’s information and resources are meant to help guide your decision-making process and help you apply with the assistance of an immigration expert or on your own.