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USCIS Guidance Memo Implementing July 28, 2020 DHS Memo

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Updated: September 15th, 2020

The U.S. Supreme Court decision, followed by 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. On August 21,2020,  USCIS released a memorandum explaining in more detail how the DHS memo will be implemented. 

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. If your work authorization with a 2-year grant needs to be replaced, you will receive a replacement work permit with the same 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 valid only for a 1-year period. We recommend you speak to an attorney before applying to receive an individualized assessment.

If at the time you apply for renewal your DACA is current, meaning it has not expired, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been expired for one year or less, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been terminated or has been expired for more than one year, you may request to renew your DACA, but you must fill out the application as if you were applying for the first time.And you must submit evidence showing that you meet each DACA eligibility guideline.

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.

The new guidance says USCIS will generally reject requests 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.

If at the time you apply for renewal your DACA is current, meaning it has not expired, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been expired for one year or less, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been terminated or has been expired for more than one year, you may request to renew your DACA, but you must fill out the application as if you were applying for the first time.And you must submit evidence showing that you meet each DACA eligibility guideline.

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

USCIS will  reject all initial DACA requests without prejudice and will 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.” We recommend you speak to an attorney before applying and before traveling outside the U.S. even if your advance parole is granted. 

 

Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

  • Travel to support the national security interests of the United States, including military interests;
  • 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.

 If your advance parole application is denied, the associated fee will not be returned.

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

If you submitted an application for advance parole before August 21, 2020, your application will be rejected and the associated fee returned, but you have the chance to apply again under the new guidance. 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…” We recommend you speak to an attorney before applying again.

Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

  • Travel to support the national security interests of the United States, including military interests;
  • 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.

If your advance parole application is denied, the associated fee will not 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 understand 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.

11) Will they replace a lost/stolen 2-year EAD with the same expiration date, or will they replace it with a 1-year expiration?

USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

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