DACA Rescinded as of March 5, 2017

September 5th, 2017

The Trump administration has terminated Deferred Action for Childhood Arrivals (DACA) as of March 5, 2017. It will reject all new applications for DACA status as of today but will process applications that have been filed as of today (the date of the official USCIS memo).

USCIS’s official “Memorandum on Rescission of Deferred Action for Childhood Arrivals” dated March 5, 2017, states that effective as of today, USCIS will do the following:

•Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
•Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
•Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
•Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
•Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
•Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
•Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
•Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

Request in Federal Court to Dismiss Challenge to DACA by Texas

July 31st, 2017

The Mexican American Legal Defense and Educational Fund (MALDEF) filed a motion in the US District Court for the Southern District of Texas to dismiss a threat by the State of Texas to amend its lawsuit against DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) to include a belated challenge against Deferred Action for Childhood Arrivals (DACA). MADELF is arguing that the original lawsuit against DAPA is not sufficiently related to DACA. DAPA, an Obama initiative, was barred by the Federal courts in 2015 and it never went into effect. The US Department of Homeland Security issued a memorandum on June 15, 2015, officially rescinding DAPA. MALDEF argues that such rescission renders the lawsuit to include DACA moot.

During the 2015 federal court proceedings to seek a preliminary injunction against DAPA, Texas was unequivocal that it was not challenging the 2012 DACA program. MALDEF argues that now, almost three years after the case, Texas should file a new lawsuit seeking invalidation of DACA.

Legislation to Provide Path to Green Card for Dreamers

July 29th, 2017

Representatives in the House have introduced two pieces of legislation that will provide “Dreamers,” or children who came to the US without status or overstayed their status, with the chance to apply for legal permanent residency (green card status) in the US and eventually to apply to naturalize to become US citizens. The Dream Act of 2017 is led by Representatives Lucille Roybal-Allard (CA) and Ileana Ros-Lehtinen (FL), and the American Hope Act was sponsored by Minority Leader Nancy Pelosi (CA), Minority Whip Steny Hoyer (MD), Luis Gutierrez (IL) and members of the Congressional Hispanic Caucus.

AILA lauded these pieces of legislation: “These bills make clear that there is bipartisan support for Dreamers that literally reaches across our nation with Representatives Roybal-Allard of California and Ros-Lehtinen of Florida leading the charge. Many leaders in Congress recognize that protecting Dreamers is good for America. At a time when the Deferred Action for Childhood Arrivals (DACA) has come under threat, action by Congress is vitally important to ensure these young men and women are protected from being ripped from their communities. Dreamers are emblematic of the future of our great nation and these aspiring Americans deserve an opportunity to secure a permanent home in our country.”

President Trump should also protect DACA (Deferred Action for Childhood Arrivals) recipients by vowing that the Administration will maintain the DACA program until there is a law to protect Dreamers.

Gap in Employment and Lawful Status in the US if DACA and EAD are not Renewed Before Their Expiration

May 23rd, 2017

An applicant for renewal of Deferred Action for Childhood Arrival (DACA) status and employment authorization (EAD) will incur a gap in lawful presence in the US if his or her DACA and EAD are not renewed before his or her current status expires.

Timely filed applications for renewal of DACA and the EAD do not provide for an automatic extension of lawful presence and work authorization in the US, respectively. In other words, if there is any gap between the expiration of an applicant’s first EAD and the approval his or her renewed EAD under DACA, then the applicant won’t have authorization to work during this gap.

Also, the applicant should be aware that if his or her current DACA status expires before his or her renewal is approved, then the applicant will accumulate unlawful presence in the US if he or she is over 18. Once the applicant accrues more than 180 days of unlawful presence, then if the applicant departs the US he or she cannot reenter for three years (although there are certain waivers available). Also, once the applicant accrues more than one year of unlawful presence, then he or she would be barred for ten years if he or she departed the US (with exceptions). It should be noted that many applicants for DACA would have already accrued the unlawful presence bar before initially filing for DACA.