DACA is back!

WHERE DACA WAS AND IS NOW

Back in December 2020, Judge Nicholas Garaufis of the Eastern District of New York ordered USCIS to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program including accepting initial applications as well as extending the grant of deferred action and work permits from 1 year to 2 years and accepting applications for Advance Parole (AP). see Batalla Vidal et al v. Wolf et al, 1:16–cv–04756–NGG–VMS (E.D. N.Y., Dec. 4, 2020). Judge Garaufis also determined that Chad Wolf was not lawfully the Acting Secretary of the DHS at the time of his July 28, 2020 Memorandum. USCIS began accepting applications under the pre-September 5, 2017 DACA program terms in compliance with Judge Garaufis's order on December 7, 2020. Consequently, the U.S. Department of Homeland Security (DHS) decided to hold off updating the USCIS Form for the application for DACA (Form 821-D).

Prior to this, the Trump Administration had attempted to eliminate DACA through then-acting Secretary of DHS's, Elaine Duke's, September 5, 2017 Memorandum; lawsuits ensued, and, the DACA case was brought before the U.S. Supreme Court. The U.S. Supreme Court held against the Trump Administration and its manner of seeking to end DACA. The Court determined DHS's manner of ending DACA to be arbitrary and capricious.

Chad Wolf then sought to reconsider the future of the DACA program in light of the Supreme Court's ruling, and, in the interim issued a memo on July 28, 2020 effectively limiting DACA: he instructed USCIS to reject and not accept any new or pending initial DACA applications, to reject and not accept any new or pending applications for AP absent exceptional circumstances and to shorten DACA renewals (including employment authorization) to 1 year. In its effort to carry out Wolf's orders, on August 21, 2020, USCIS issued its own Memorandum detailing the current state of the DACA program.

WHO CAN APPLY FOR DACA CURRENTLY

Applicants seeking either an initial or a renewal of DACA, and, who are otherwise eligible for DACA are able to file Forms I-821D and Form I-765. DACA holders may also file Form I-131 for an AP. The total USCIS fee for an application for DACA (including the application for employment authorization and biometric services fee) is currently $495; there is no fee waiver available. The USCIS fee for the application for an AP is currently $575.

To be eligible for DACA you must meet the following requirements of the June 15, 2012 DACA Memo:

(1) Arrived to the U.S. before turning 16 years old

(2) Maintained continuous U.S. residency for at least 5 years prior to the date of the Memo

(3) Have been physically present in the U.S on the date of the Memo

(4) Meet an education requirement- currently in school, a high school graduate, obtained a general education development certificate or has been honorably discharged from the U.S. Coast Guard or Armed Services.

(5) Have no felony conviction, no significant misdemeanor conviction, no multiple misdemeanor offenses, and, not otherwise pose a threat to the national security or public safety

(6) Be no older than 30 years old

WHERE DACA MAY GO

President-elect Joe Biden had originally promised an overhaul to the immigration system within 100 days of taking office. Yesterday, he said that he will introduce the immigration bill the day that he takes office, January 20, 2021. Although he has not revealed his specific plan, he has spoken to eliminating the Muslim ban and creating a path to citizenship for the DREAMers.

If you are considering an initial application for DACA or if you are a DACA holder who is considering applying for an AP or a family based green card, you may want to contact an immigration attorney to discuss your case. Attorney Carcagno handles DACA and family based immigration law and is available on a consultation basis at (734) 999-0360.

***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***

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