USCIS Will Resume To Renew DACA Applications
Pursuant to Acting Secretary of Homeland Security Chad Wolf’s July 28, 2020, memorandum on DACA, in light of the U.S. Supreme Court’s decision in Department of Homeland Security (DHS), et. at. v. Regents of the University of California, et al. Nos. 8-587, 18-588, 18-589, USCIS has announced that it will resume adjudicating all pending and future properly submitted DACA renewal requests in the future.
At the same time, USCIS has announced that it will refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents for the remaining duration of their validity periods. Further, in accordance with the Wolf Memorandum, USCIS shall reject and return the fees for any DACA requests and associated applications for employment authorization submitted by aliens who have never before received a grant of DACA.
The One-Year Deadline After The Underlying DACA Grant Has Expired
Historically, USCIS policy on DACA renewals has permitted DACA recipients to request renewal of DACA for up to one year after their underlying DACA grant has expired. DACA recipients who failed to submit their renewal requests within the one-year time period following expiration have generally been permitted to request DACA anew. Likewise, DACA recipients whose most recent period of DACA has been terminated by USCIS have also been permitted to request DACA anew, but such requests are treated as requests for ” initial” DACA.
Under preliminary injunctions issued in January and February of 2018,† USCIS has accepted and adjudicated DACA requests from aliens who have previously received grants of DACA at any time-including requests that are treated as “initial” requests for the reasons described above. Given the Acting Secretary’s desire to maintain the status quo of the past few years, USCIS will continue to accept and adjudicate such requests notwithstanding any language in the Wolf Memorandum about rejecting “all” requests for initial DACA.
USCIS Will Reject All Initial DACA Requests
USICS will reject all initial DACA requests from aliens who have never previously been granted DACA. The rejections will be without prejudice, meaning that all fees will be returned and the applicant will be able to resubmit a request should USCIS begin accepting new requests.
One-Year Limit On Renewal Grants Of Deferred Action And Employment Authorization
USCIS will limit renewal grants of deferred action and employment authorization under DACA to one year but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs). 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.
Grants of Advance Parole to DACA Recipients
Under the newly promulgated guidelines, USCIS will only grant advance parole for travel outside the United States to DACA recipients in rare instances encompassed by the statutory standard for parole found in INA Section 212(d)(5). USCIS has announced that the agency will not rescind any previously granted advance parole documents unless there is a valid legal reason to do so. It is important to keep in mind, however, that parole into the United States is not guaranteed, and aliens are still subject to immigration inspection at a port-of-entry to determine whether you are eligible to come into the United States.
If you have been granted an advanced parole by USCIS, we encourage you to make an appointment with an experienced immigration attorney to discuss any pertinent facts relevant to your case and the risks associated with traveling outside of the United States.
USCIS Has Discretion To Determine Whether To Grant An Advanced Parole
The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. 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;
- 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.
Even if an advanced parole applicant 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.
How To Apply For An Advanced Parole
DACA recipients who wish to apply for an advance parole document may submit an Application for Travel Document, to the address specified on the USCIS webpage. DACA-related requests for advance parole that are not submitted to the appropriate direct filing address for DACA may experience delays in being processed.
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