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Legal Update

USCIS Issues Guidance on DACA Renewal Applications

16 January 2018
Mayer Brown Legal Update

As we reported on January 11, 2018, Judge William Alsup of the US District Court for the Northern District of California issued a preliminary injunction temporarily reinstating the Deferred Action for Childhood Arrivals (DACA) program. Judge Alsup’s order in Regents of the University of California, et al. v. Department of Homeland Security, et al. requires US Citizenship and Immigration Services (USCIS) to begin accepting DACA renewal applications again and to publish a notice on the procedures for doing so. On January 13, 2018, USCIS announced its process for accepting renewal applications.

The DACA program will be operated under the terms that were in place before it was rescinded on September 5, 2017, except that USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA and the agency will not accept or approve advance parole requests from DACA recipients. Those DACA beneficiaries whose deferred action expired on or after September 5, 2016, may file their DACA request as a renewal. Those DACA recipients (also known as “DREAMers”) whose deferred action expired before September 5, 2016, or whose DACA status was terminated at any time, must follow the instructions for filing a new, initial request.

Judge Alsup’s ruling is by its nature temporary, operative only until the district court issues a final ruling on the merits. Moreover, the government is certain to appeal this preliminary ruling to the Ninth Circuit and, if it loses there, to the Supreme Court. And it may well seek a stay of the district court’s order pending the decisions by those courts. For these reasons, filing a renewal request based on the preliminary injunction does not ensure that the request will in fact by processed by USCIS. But a filing does make it possible that the applicant will receive positive action.

Frequently Asked Questions

Q. Who qualifies for DACA benefits?

A. An individual who:

  • came to the United States under the age of 16;
  • has continuously resided in the United States for at least five years prior to July 15, 2012;
  • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
  • is not above the age of 30.

Q. My DACA benefits will expire May 1, 2018. May I apply to renew my benefits?

A. Yes, you may apply for renewal by following the instructions for Form I-821D. In the past, USCIS has encouraged DACA beneficiaries to apply for renewal during the 120-150 day period preceding the expiration of their benefits. It is unknown at this point whether USCIS will reject applications for beneficiaries whose benefits will expire more than 150 days from the date of their application or simply give them a lower priority for processing.

Q. My DACA benefits expired August 15, 2016. May I apply for renewal of my benefits?

A. Yes, you may apply for deferred action, but you must follow the instructions for Form I-821D as though you were filing a new, initial request.

Q. I meet the criteria for deferred action under DACA, but I have never been granted applied for or been granted DACA benefits. May I make an application for initial benefits now?

A. No, USCIS is not accepting requests from individuals who have never been granted deferred action under DACA.

Q. My mother is ill in my home country, and I have an urgent need to travel there to be with her. Will USCIS consider my request for a travel document?

A. No, USCIS will not accept or approve advance parole requests from DACA recipients.

Q. How long will the court order remain in place?

A. The court order is temporary and could be stayed by a higher court at any time. If the court order is stayed, USCIS will again stop accepting applications and likely will not process those pending applications filed after October 5, 2017.

Q. I have been convicted of a misdemeanor. Should I apply for DACA renewal?

A. You should speak with an immigration lawyer or an accredited representative about your situation before filing.

Q. I have an order of removal from immigration court. Should I apply for renewal of my benefits?

A. You should speak with an immigration lawyer or an accredited representative about your situation before filing.

On the Horizon

Supporters of DREAMers have made clear that statutory protection is essential because of the uncertain nature of any judicial relief. A number of Democrats have stated that they will not support continued funding of the government (which runs out on January 19) unless the measure also includes protection for DREAMers.

Legislative discussions have been underway, and on the same day as Judge Alsup’s ruling, President Trump hosted a bipartisan meeting to discuss the issue. Additional developments on both the judicial and legislative fronts are likely in the coming weeks.

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
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