On August 24, 2020, USCIS made an announcement and issued a memorandum explaining how DACA initial and renewal applications will be treated going forward. For the most part, the new memorandum maintains the status quo we have been under for the last several years. There are some good and bad changes depending on the case, but the worst part is that USCIS will be rejecting and ending initial DACA applications, even when submitted before the date of the memorandum.
How Has the DACA Program Changed?
The memorandum lays out several important changes, listed here:
- All initial DACA applications will be rejected, and refunded
- USCIS will continue processing renewal requests
- New work permits under DACA will be for one year, rather than two
- USCIS will not revoke existing work permits for issues which changed based on this memorandum
- Reject any I-131 advance parole requests for DACA recipients except in situations of exceptional circumstances
- Any approved advance parole requests will be honored for the duration of their validity
- USCIS will honor the information-sharing policy as set out in the DACA FAQ and Napolitano Memorandum
- USCIS will be implementing a strict 150-day policy and not honoring renewal requests if they are submitted more than 150 days before the expiration date. USCIS recommends filing more than 120 days before the expiration date.
- USCIS explicitly acknowledged that it attempts to approve DACA work permits closer to the expiration date of the prior DACA period, which is not a bad thing especially if they will only be issued for one year.
DACA Initial Applications Rejected
The worst news is that all the pending initial applications for DACA, especially following the Supreme Court’s decision and up to the date of the memo, are going to be rejected or terminated. This action is likely illegal. Since the Supreme Court’s decision, or perhaps a bit later, the only DACA guidance in effect has been the original 2012 memorandum and FAQ which established the program. USCIS has arbitrarily decided to simply sit on new DACA initial applications and not even to process the fees, much less the applications.
While USCIS does get to set certain rules, they cannot flout their own policy guidance. Those individuals who had filed DACA initial applications should consider bringing lawsuits under the Administrative Procedures Act. If the struggles of the Trump Administration has proven one thing, it’s that you can’t sit and wait for USCIS to make the right decision. The only way to force the government to obey the law is through Congress or the Courts. Congress is not likely to make any changes this year, and so it falls to individuals to bring lawsuits to protect their rights.
Advance Parole is Still Available
Some good news from the memo is that advance parole is still available, although the standard seems to be getting higher. USCIS notes that advance parole for those individuals who only have DACA is an “extraordinary privilege” and that they should be assessed in keeping with other parole requests under INA Sec. 212(d)(5), which is going to be higher than previous DACA advance parole standards. The memo mentions that employment, visiting family, and vacation are not valid reasons. Some examples of valid reasons include:
- Travel to support national security and federal law enforcement interests
- Travel to obtain essential life-supporting medical treatment not available in the US
- Travel to support the immediate safety, well-being, or care of an immediate relative, but especially minor children