Immigration DACA's Status: Its Current Condition and Uncertain Future
On September 5, 2017, the Trump administration rescinded DACA (Deferred Action for Childhood Arrivals - an immigration program created by President Obama,) and gave Congress until March 5, 2018 to come up with a legislative solution for Dreamers. The University of California then immediately filed a lawsuit against the Department of Homeland Security (DHS) to restart DACA.
On January 9, 2018, William Alsup, a federal judge, ordered the United States Citizenship and Immigration Services (USCIS) to continue the DACA program by issuing an injunction. As a result, on January 13, 2018, USCIS announced that it would continue accepting DACA renewal applications. The administration then claimed it was going to take the federal court order before the Court of Appeals.
On February 13, 2018, Nicholas Garaufis, another federal judge, also issued an injunction blocking the administration's efforts to end DACA. Shortly after this order, the administration asked the Supreme Court to review the case by skipping the Court of Appeals. Skipping over the second level of the federal court process is fairly unusual. In the past, skipping an interim court process was only allowed in matters involving a serious national issue, like with President Nixon's White House tapes, or with the Iranian hostage crisis.
On February 26, 2018, the Supreme Court declined to review the case, preferring that the case first go before the Court of Appeals. This decision says nothing about the merits of the DACA program. Rather, it is a message from the courts to the administration to respect the traditional process.
Today marks the deadline for Congress to come up with a solution for Dreamers. Unfortunately, Congress did not come up with a remedy. However, the two court injunctions and the Supreme Court decision render this deadline moot for now.
Thus, until further notice, if you have previously received DACA and it expired on or after September 5, 2016, you may file a renewal request. This means that you must fill out the latest versions of Forms I-821D (Consideration of Deferred Action for Childhood Arrivals), I-765 (Application for Employment Authorization), and I-765 Worksheet. Along with the forms, you must include the appropriate fee or approved fee exemption request. In addition, in the Form I-821D, you must indicate the date your DACA ended.
If you have previously received DACA but your DACA expired before September 5, 2016, or was simply terminated by DHS, you cannot request DACA as a renewal. Instead, you must file a new initial DACA request, which you can do by filling out the latest versions of Forms I-821D, I-765, and I-765 Worksheet, along with the appropriate fee or approved fee exemption request. Like with the renewal, use Form I-821D to indicate the date your DACA ended.
If you are eligible to apply for DACA but have not applied for it in the past, you may not submit an application now because under the federal court order, USCIS is not accepting requests from individuals who have never been granted DACA.
In addition, USCIS is not issuing an Advance Parole Document. The Advance Parole Document is a form of temporary travel authorization that allows a foreigner to reenter the United States after traveling abroad. This is important to note because as a DACA recipient, you will automatically lose your DACA if you travel outside the United States without first receiving your Advance Parole Document. Please note that an Advance Parole Document does not automatically guarantee that you will be allowed to reenter the United States. Even with a valid Advance Parole Document, at the airport or border, a U.S. Customs and Border Protection (CBP) officer will ask questions and make the final determination about whether you may reenter the United States. Thus, consult with an experienced immigration attorney before you travel abroad.
DACA is a temporary form of relief that may be terminated at any time. In fact, with the current administration constantly challenging DACA's future, the faith of DACA is more uncertain than ever. In fact, if the administration decides to appeal the federal court order before the Court of Appeals, the Court of Appeals may lift the injunction at any time. This means the renewal option may be available indefinitely or may be stopped by another court order, depending how the case proceeds.
You may be qualified for another type of status, such as U Nonimmigrant Status (U-visa), T Nonimmigrant Status (T-visa), or Special immigrant Juvenile Status (SIJS), so, as mentioned earlier, always consult with an experienced immigration attorney to explore your options. Members of the American Immigration Lawyers Association (AILA) report that up to 30% of people screened for DACA were eligible for "something better and more permanent."
In addition, consult with an immigration attorney to asses your eligibility for DACA before submitting any application to USCIS. Individuals in violation of immigration laws or relatively minor offenses may be placed in removal proceeding.
Avoid unauthorized immigration consultants or notarios. They are not lawyers, do not have the legal qualifications to represent you, and are not authorized by law to give you immigration related legal advice. Only licensed lawyers and accredited representatives are qualified to help you legally. Thus, speak to a qualified and experienced immigration attorney. Our team is here to help, so call us today to schedule a free consultation.