Visa Lawyer Blog
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UPDATE—The Latest on DACA: Last summer, the United States Supreme Court accepted the Trump administration’s writ of certiorari, agreeing to review several federal court cases challenging the Trump administration’s decision to terminate DACA. The Supreme Court could, at any moment, decide the fate of DACA, making this an extremely uncertain time for Dreamers. A decision is expected to be handed down by the Supreme Court in early 2020, just before the 2020 presidential election. In the meantime, given that no final decision has yet been made by the Supreme Court, DACA recipients may continue to submit renewal applications pursuant to three U.S. district court orders that remain in effect. As required by these orders, United States Citizenship and immigration Services (USCIS) resumed accepting renewal requests for DACA, however those who have never before been granted deferred action cannot apply.
DACA FREQUENTLY ASKED QUESTIONS
USCIS Continues to Accept DACA Renewal Requests
In early January of 2018, the U.S. District Court for the Northern District of California issued a preliminary injunction in favor of the plaintiffs in the case Regents of the University of California, et al. v. Department of Homeland Security, et al., which challenged the government’s decision to terminate DACA. The preliminary injunction had the effect of temporarily blocking the termination of the DACA program until a final decision is reached on the merits of the case. The injunction applied nationwide and required USCIS to resume accepting DACA renewal applications. Shortly after this court order, USCIS announced that it would resume accepting DACA renewal applications.
The Sapochnick Law Firm has drafted the following answers to your frequently asked questions regarding the current state of DACA, CIS’ announcement informing the public that it will continue accepting DACA requests, and further developments relating to DACA.
WHY YOU SHOULD APPLY FOR YOUR DACA RENEWAL NOW
At this time the fate of the DACA program is extremely uncertain. The United States Supreme Court is set to make a final decision regarding the legality of the DACA program at any time. Given that the liberal justices on the court are outnumbered by 5-4, it is more and more probable that the DACA program will be terminated. Once the Supreme Court casts the final vote, DACA recipients will likely lose the opportunity to apply for renewal of their benefits. Now more than ever DACA holders should take advantage of their ability to apply for a final renewal of their benefits. We hope that the Supreme Court will be on the right side of history, but there can be no guarantees.
1. I have never applied for DACA before, can I still submit an application?
No. The preliminary injunction does not require USCIS to accept DACA applications from first-time applicants. USCIS has made clear that it will not be accepting DACA applications from those who have never before been granted deferred action. The agency will only continue accepting applications to renew a grant of deferred action under DACA.
2. Why did I hear that applications for first-time applicants would be accepted?
In a previous case out of the U.S. District Court for the District of Columbia, NAACP v. Trump, federal judge John D. Bates ordered the government to submit additional information to justify its decision to terminate DACA—failure to do so meant that USCIS would be required to accept first-time applications for DACA as well as applications from DACA holders for advance parole.
The government did respond within the required period of time, issuing a memorandum outlining the government’s rationale for terminating the DACA program. Having satisfied the court’s requirement to produce the information, the U.S. District Court for the District of Columbia, “stayed” its previous order requiring that the DACA program be fully reinstated. As a result, the portions of the court order that would have allowed first-time applicants to seek DACA and allowed for DACA recipients to apply for advance parole, were stopped.
Given that the government complied with the court order, at this time, USCIS is not accepting DACA applications from first-time applicants, nor applications for advance parole from DACA recipients.
3. If I have DACA, can I apply for advance parole?
No. As stated above, USCIS is not accepting applications for advance parole from DACA recipients.
4. What if the Supreme Court rules in favor of DACA, should I start preparing my application in case USCIS is ordered to accept first-time applications?
It may be a wise decision to gather the documents necessary to prepare your DACA application, however it is important to note that there is no guarantee that USCIS will begin accepting applications from first-time applicants. The best thing to do at this point is to review the DACA requirements and set aside the supporting documents needed for your application. We will continue to monitor the situation and let our readers know of any new developments as they are released to the public.
5. If I have had DACA before, can I apply to renew it?
Absolutely. If you were granted deferred action at least once, you are eligible to submit an application to renew your benefits with USCIS.
In order to do so you must meet the following requirements:
- You must not have departed the U.S. on or after August 15, 2012, without first having been granted advance parole.
- You must have resided continuously in the U.S. from the time you submitted the initial request for DACA up until the present time.
- You must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and must not otherwise pose a threat to national security or public safety.
6. If I want to renew my DACA, does it matter when my DACA expires or expired?
No. Applications to renew deferred action are being accepted for anyone who previously received deferred action, including those whose DACA has already expired.
The application process however varies depending on when your DACA expired.
If your DACA is Current: If your DACA is current at the time of filing your renewal (it is not yet expired), you may apply to renew your DACA by completing the application as a “renewal,” of your DACA benefits.
If your DACA has Expired for 1 Year or Less: If your DACA has been expired for a period of one year or less, at the time of filing your renewal, you may apply to renew your DACA by completing the application as a “renewal,” of your DACA benefits.
If your DACA has Expired for More than 1 Year: If your DACA has been expired for a period of more than one more, at the time of filing, you may apply to renew your DACA by completing the application as if you were applying for the first time. You must also be prepared to submit evidence to show that you meet each DACA criterion.
If your Deferred Action was Terminated by DHS: If your period of deferred action was cut short by DHS meaning that DHS terminated your DACA, you can re-apply for DACA benefits by completing the application as you were applying for the first time. You must also be prepared to submit evidence to show that you meet each DACA criterion.
ALERT FOR EARLY RENEWAL FILINGS-: 150+ DAYS IN ADVANCE
7. My DACA Expires in 7+ Months. Should I renew?
Maybe. It is worth noting that currently, it is USCIS policy to continue to accept and process DACA applications submitted by individuals whose DACA expires more than 150 days after they submit their application. In the past, USCIS had said that it would reject DACA renewal applications for these groups of people, and that DACA recipients should complete their renewal applications within the 120-to-150-day window prior to expiration of their DACA benefits, however applications that have been submitted well in advance of the expiration date have not been rejected, but some consequences have resulted–such as the renewed DACA period being cut short by one month. For this reason it is important that DACA renewal applicants contact our office for a consultation to discuss whether applying for renewal “early” is a wise decision.
ALERT: Although USCIS has been approving “early” applications for renewal of DACA benefits that were filed 7-8 months before expiration of the individual’s DACA benefits, we have noted that applicants who filed “early” lost one month on the DACA period when the renewal was approved.
Example: Client filed 7 months in advance of their DACA expiration (expired: 08/2018.) When the renewal was approved, the new DACA was issued for 07/2018-07/2020, cutting the applicant’s DACA period short one month.
Given this information, it may still be worth applying early given the uncertainty surrounding the DACA program. However, this evaluation must be made on a case-by-case basis. Please contact our office to discuss your options further.
8. Do I need to live in California or New York to be eligible to apply for DACA renewal?
No. Although the two U.S. district courts that were responsible for issuing preliminary injunctions against the government were located in California and New York, their orders apply nationwide. This means that USCIS must continue to accept renewal applications for DACA on a nationwide basis.
9. When can I apply to renew my DACA benefits?
While there is no deadline to submit a renewal application, as we noted earlier, the United States Supreme Court is set to make a final decision with regard to the DACA program at any time. This means that the DACA program could potentially be terminated altogether. Therefore, it is recommended that renewal applicants submit their applications as soon as possible. Individuals whose DACA expires in 150+ days, should contact our office as soon as possible to discuss when they should apply for renewal.
It is important to act quickly. The Supreme Court is currently made up of conservative justices making it highly likely that the DACA program could be terminated. An adverse decision would make it difficult or impossible for Dreamers to submit their renewal applications once the decision is handed down.
10. How can I prepare to apply to renew my DACA?
It is highly recommended that those who are eligible submit their renewal applications as soon as possible. You may contact our office for a consultation so that we can fully discuss the requirements and supporting documentation needed from you to submit your renewal. During this uncertain time, it is important for you to consider the very real possibility that the Supreme Court may terminate DACA and prevent you from renewing your benefits in the future.
These considerations should be made carefully and after speaking with an attorney who can evaluate the pros and cons of submitting your application.
Applicants should keep in mind that any renewal request must provide information and documentation that is consistent with the information provided in the initial application for DACA and past renewal applications.
In addition, it is important that renewal applicants who have (1) received a citation (2) been arrested (3) criminally charged or convicted (4) received a deportation order (5) voluntary departure order or (6) have had an immigration case administratively closed—since receiving their initial grant of deferred action, seek the assistance of an experienced immigration attorney.
11. How do I renew my DACA?
If you decide to file your renewal on your own, USCIS has provided detailed instructions and information on how to renew your DACA benefits on their website. If you would like our assistance with filing your application, please contact our office for a consultation.
12. What are the fees to renew DACA?
The fee to request consideration of deferred action for childhood arrivals, including employment authorization and biometric services, is $495, and cannot be waived.
Fee exemptions are available in very limited circumstances. To be considered for a fee exemption you must submit a letter and supporting documentation demonstrating that you meet one of the following conditions:
- You are under 18 years of age, homeless, in foster care, or under 18 years of age and otherwise lacking any parental or other familial support and your income is less than 150% of the U.S. poverty level,
- You cannot care for yourself because you suffer from a serious chronic disability and your income is less than 150% of the U.S. poverty level, or
- You, at the time of the request, accumulated $10,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for yourself or an immediate family member and your income is less than 150% of the U.S. poverty level.
For information about fee exemptions click here.
13. Where should I send my DACA renewal application?
DACA renewal applications must be sent to USCIS. The office that you must send your renewal application depends on the state where you live. You must review USCIS’s Direct Filing Addresses for Form I-821D, Consideration of Deferred Action for Childhood Arrivals for the correct mailing address. You should send your application by certified mail, with tracking, and signature required.
14. I have been arrested or convicted of an offense since receiving DACA, what should I do?
Speak with an attorney to discuss the charges and/or details of the arrest. It is very important that you speak with an experienced attorney. Do not under any circumstances file on your own if you have any criminal issues before applying.
15. I have received a deportation order, voluntary departure, or have had a case administratively closed since receiving DACA, what should I do?
See above.
16. What if my last renewal application was rejected because I did not meet the October 5, 2017 deadline? Can I still renew my benefits?
Yes. It does not matter whether your last application was rejected for failure to meet the deadline.
17. How long will it take USCIS to process my DACA renewal application?
The time required to process a DACA renewal application depends on the service center processing your petition. According to USCIS, it is currently taking 5-7 months to process a renewal application filed at the Nebraska Service Center, and 4-6 months to process a renewal application filed at the Vermont Service Center.
For more accurate processing times we recommend that you call USCIS.
We sincerely hope that this information was helpful. We encourage all DACA holders to consider renewing your benefits as soon as possible given the uncertain future of the program. If you have any questions, concerns, or need more information about your particular case, please contact our office for a consultation. Please continue to check our blog for further DACA updates.
Stay safe!