Frequently Asked Questions about the new DACA Memo

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Updated: July 30, 2020

The U.S. Supreme Court decision, followed by the order from the 4th Circuit’s mandate on June 30, required that USCIS restore the Deferred Action for Childhood Arrivals (“DACA”) program, including that USCIS again process initial DACA requests and advance parole applications. However, on July 28, 2020, over a month after the Supreme Court’s decision, DHS issued a new memorandum limiting the DACA program. The memorandum requires USCIS to (1) reject all initial DACA requests, (2) reject advance parole requests from DACA recipients unless there are “exceptional circumstances,” and (3) continue accepting and processing DACA renewal requests but shift to providing DACA and work authorization for a 1-year period, rather than 2 years, for any DACA renewal request granted.

The answers to the following Frequently Asked Questions are based on the information we have now and will be updated as we learn more. This is all general guidance and is not intended to be legal advice. We recommend that you speak to an immigration attorney for more information.

1) I have a current grant of DACA, how does the new memorandum affect me?

If you have DACA, the 2020 DHS memorandum will not affect your current DACA and work permit.  Your DACA and work permit will remain valid until their expiration date. The next time you apply for renewal, if your DACA is approved, your new DACA grant and work permit will be valid for 1 year rather than 2 years.

2) I submitted a DACA renewal request but I have not received a decision on my case yet. How does this new memorandum affect me?

If your DACA renewal request is approved, your new DACA grant and work permit will be valid for 1 year rather than 2 years.

3) I want to renew my DACA, can I apply for renewal?

Yes, USCIS is still accepting and processing DACA requests for renewal. However, if your case is approved, your new DACA and work permit will be only for a 1-year period. We recommend you speak to an attorney before applying to receive an individualized assessment.

4) Should I apply early for DACA renewal?

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.

You may 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 — including requests filed earlier than 150 days before the applicant’s DACA expires. We recommend you speak to an attorney before applying to receive an individualized assessment of the benefits and risks of applying “early.”

Considerations may include:

  • If you apply early, USCIS could deprioritize your request that would give priority to requests with earlier expiration dates so you may experience a long wait.
  • The processing times listed on the USCIS website range between 3 to 41.5 months, depending on which service center has your case. These processing times are long and it’s unclear how current they are. Anecdotally we’ve heard that some cases still take only 3-5 months to process or less. Cases could be processed even faster than that.  On the other hand, the expected furloughs of USCIS employees that are happening by the end of August could further slow down DACA renewal processing. 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 one year 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.

5) I'm DACA-eligible but I have never had DACA, can I apply now?

The new memorandum instructs USCIS to reject all initial DACA requests without prejudice and to refund all associated fees.   We recommend speaking with an attorney to consider your immigration options.

6) I’ve never had DACA but I submitted a request for DACA after the Supreme Court decision, what will happen to my request?

Under the memorandum, your initial DACA request will be rejected and the associated fees will be refunded.

7) Can I apply for advance parole if I have DACA?

The new memorandum instructs USCIS to reject advance parole requests from current DACA recipients except in “exceptional circumstances.” The memo does not explain what constitutes “exceptional circumstances.” We recommend you speak to an attorney before applying and before traveling outside the U.S. even if your advance parole is granted.

8) I submitted an application for advance parole, what will happen to my request?

The new memorandum instructs USCIS to reject advance parole requests from DACA recipients unless USCIS determines that the basis for your application constitutes “exceptional circumstances…” The memo does not explain what constitutes “exceptional circumstances.” If your advance parole application is rejected, the associated fee will be returned. If your advance parole application is approved, we recommend you speak to an attorney before traveling outside the U.S.

9) Has the application fee for DACA changed?

No. The associated fees remain the same ($495) although it will now only allow you to receive DACA and work authorization for 1 year if your DACA renewal request is granted.

10) What will USCIS do with the information I submitted in my request, even if it was rejected?

The new memorandum confirms that USCIS information-sharing policy has not changed and is the same as reflected in the USCIS DACA Frequently Asked Questions and in the USCIS’s Form I-821D instructions. However, we have heard that ICE can access USCIS’s data, as described in the ProPublica article titled “ICE Has Access to DACA Recipients’ Personal Information Despite Promises Suggesting Otherwise, Internal Emails Show”. We recommend you speak to an attorney before applying to receive an individualized assessment.

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