DHS Restricts DACA Scope and Benefits While Reconsidering Program Post Scotus Decision

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The U.S. Department of Homeland Security (DHS) recently issued its much anticipated Deferred Action for Childhood Arrivals (DACA) policy memorandum titled, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” on July 28 (July DACA Memorandum), which once again resumes DHS’s efforts to dismantle DACA.   The DACA Memorandum was issued in response to the U.S. Supreme Court’s decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California on June 18, 2020, which held that the efforts of DHS to rescind  DACA were, “arbitrary and capricious.”  The Supreme Court’s decision vacated the DHS rescission of the DACA policy and remanded the DACA problem to DHS for review.

As background, DACA provides deferred action (i.e. protection from deportation) to qualifying individuals. who were brought to the U.S. as children without lawful immigration status. [For a complete list of DACA eligibility requirements please see here]. In addition to deferred action, DACA recipients, commonly known as “Dreamers,” receive other benefits not otherwise typically available to individuals without lawful status. These primary benefits include the ability to apply for work authorization and to apply for advance parole to reenter the U.S. after traveling abroad. The July DACA Memorandum substantially limits these benefits and the scope of DACA post the Supreme Court’s decision in June, setting the stage for DHS to, once again, attempt to fully rescind the program. This article briefly summarizes the main changes made to DACA by the July DACA Memorandum and outlines the practical implications of these changes.

  1. DHS will deny all first-time DACA requests

The July DACA Memorandum provides that DHS will “[r]eject all initial DACA requests and associated applications for Employment Authorization Documents.” This statement means that all individuals applying for DACA for the first time will be rejected without prejudice to refiling, if DHS decides to begin accepting initial requests in the future.  The associated filing fees submitted with initial requests are to be refunded.

  1. All DACA renewals and Employment Authorization Documents (EAD) must be renewed every year

Before DHS issued the July DACA Memorandum, Dreamers were required to renew their DACA status and EADs (i.e. work permits) every two years. Now, Dreamers must renew every year. Practically speaking, this change not only makes it more costly for Dreamers to continue to work and benefit from DACA (since filing fees will now be incurred every year), but it also creates a greater risk for Dreamers that their DACA applications may be denied (since applications are adjudicated on a case-by-case basis without deference to prior approvals).

Employers will have to monitor the timing for EAD and DACA status renewals more closely to avoid interruption in work authorization.  It is important to remember to file DACA renewal applications at least 150 days before expiration.  Filing the renewal application earlier may be advisable even if the resulting approval does not result in a start date beginning after the end of the prior EAD.

The current filing fee is $495, which includes an $85.00 biometric fee and a $410.00 fee for the EAD.

  1. Most pending and future advance parole requests will be denied unless supported by exceptional circumstances.

Advance parole permits Dreamers to reenter the U.S. after traveling abroad. The July DACA Memorandum all but eliminates this benefit, as Dreamers may now only receive advance parole approval in “exceptional circumstances.” The policy memorandum does not define “exceptional circumstances,” so it is unclear under what circumstances it may be approved. U.S. Citizenship and Immigration Services (USCIS) has provided guidance as to what they consider examples  of qualifying humanitarian or significant public benefit bases for advance parole in the context of admissions to the U.S.  The ability of Dreamers to prove exceptional circumstances meriting advance parole is expected to be extremely limited. The July DACA Memorandum instructs USCIS to reject all pending and future Form I-131 application for advance parole from DACA beneficiaries and to refund all associated fees, absent exceptional circumstances.  The current I-131 filing fee is $575.00 and is expected to increase to $590.00 on October 2.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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