A Federal Ruling Orders DHS To Accept New Applications
Deferred Action for Childhood Arrivals, or DACA, is an immigration initiative from the Obama administration that permits eligible undocumented immigrants who arrived in the United States as children to live and work in the country despite their status. DACA has been mired in legal challenges from Republicans and became a target for the Trump administration, who began an espoused effort to dismantle the program beginning in 2017. Since then, volleys of legal challenges have rapidly shifted the scope of DACA and left its beneficiaries in limbo.
For the first time since President Trump’s rescinding effort in 2017, the Department of Homeland Security must accept new applications for the DACA program. U.S. District Judge Nicholas G. Garaufis has ordered the restoration of DACA before the point where the rescinding effort began. As of December 7th, 2020, the DHS has indicated their compliance with the federal order and is now accepting first-time applications for DACA benefits from qualifying immigrants.
In addition, 2-year status renewals for existing DACA beneficiaries are now once again available. Garaufis also struck down an attempt by Acting Homeland Security Secretary Chad Wolf to limit renewals to 1-year periods. The judge justified the reversal by noting that Wolf had not actually lawfully assumed the position and its powers, and therefore his order was not enforceable.
Immigration advocates are thrilled by the development, but DACA remains vulnerable to further legal challenges. Cases demanding its dissolution or sunsetting have been filed by several Republican-controlled states, with formal hearings pending. President Elect Joe Biden has already pledged to restore DACA in its entirety, but those efforts could easily become imperiled by unfavorable court decisions.
The United States Supreme Court previously rejected the “capricious” method in which the Trump administration attempted to dismantle DACA in June 2020 on a narrow 5-4 vote. That decision hinted that President Trump could find a more lawfully acceptable means of terminating the program. Now that left-leaning Justice Ruth Bader Ginsburg has been replaced by the conservative-leaning Justice Amy Coney Barrett, it is plausible that conservatives on the Court could rule differently should they choose to hear another DACA-related case.
The only clear way to permanently protect DACA participants is to enshrine their protections through a new law, versus the executive order the original program is built upon. Such a law would presumably include a clear path to citizenship, which current DACA participants do not readily have. Democrats have advocated for this type of legislation but have met stiff resistance from hardline immigration Republicans. Should the Republicans manage to retain control of the Senate, it is unclear if such a legislative effort will prove successful in the near-term.
In the meantime, DACA beneficiaries have been granted a reprieve. Current status holders will continue to have protection from deportation and will be able to live and work in the country. Those who have been unable to apply despite otherwise being eligible will now have the ability to do so, potentially guaranteeing some protection from removal in the immediate future.
Who Qualifies for DACA Status?
There are presently about 640,000 undocumented benefits participating in the DACA program. Immigration advocates estimate that there could be 300,000 or more additional individuals who can apply for the program for the first time.
In order to qualify for DACA benefits, you must:
- Have arrived in the United States prior to turning 16 years old
- Have lived continuously in the country since June 15th, 2017
- Were present in the U.S. on June 15th, 2012 and have remained physically present in the country each day since August 15th, 2012
- Not have had lawful immigration status on June 15th, 2012. You can meet this condition by having entered the U.S. unlawfully prior to June 15th, 2012 or having had status at the time of your entrance prior to that date so long as that status expired by June 15th, 2012.
- Not have lawful immigration status when submitting your DACA application
- Be at least 15 years of age when applying for DACA unless you are in deportation proceedings (or have received a deportation order) but are not detained as a result of your immigration status
- Have a high school diploma, general education development (GED) certificate, or be in school at the time of your application submittal. You can bypass this requirement if you are an honorably discharged veteran of the U.S. armed forces.
- Not have been convicted of a felony crime or offense
- Not have been convicted of a significant misdemeanor crime or offense or accumulate three or more misdemeanor crimes or offenses
- Not pose any threat to United States national security
As you can see, the requirements for qualifying for DACA are extremely narrow and strict. You must meet each of these requirements to successfully receive status.
How Do I Apply for the DACA Program?
If you determine you meet the above conditions and therefore are eligible for DACA, you should speak to an experienced employment lawyer before formally applying. There are inherent risks of applying to DACA, as the government could potentially target you for removal should they reject your application. A qualified legal professional can help you assess the level of risk you might incur through exposing yourself in this manner.
To successfully apply for DACA, you will need to collect and submit the following documents:
- Two passport-style photographs with your name and date of birth written on the reverse side
- Copy of foreign passport, any prior visa, and/or I-94 cards, if available
- Copy of unexpired passport or copy of birth certificate (with translation, if necessary)
- Copy of educational records, including diploma or certificate (if already completed), school ID cards, report cards, proof of enrollment, and/or evidence of any awards received
- Copy of every criminal court case on record, if necessary, including any arrest or police reports and evidence that you completed all terms of any applicable sentences
- Evidence proving that your entry and presence in the country meets all DACA requirements
You will need to prove that you were under the age of 16 when you entered the United States, were present in the country on June 15th, 2012, and maintained physical presence since August 15th, 2012. This can be done through presenting a variety of documents, including tax returns and transcripts, photographs of you in the country, utility bills, rental statements, employment records, medical records, and credit card statements. You can also submit affidavits from loved ones, employers, or colleagues who can confirm your meeting of the presence requirements. An employment attorney familiar with DACA requirements can help determine what constitutes a sufficient level of evidence to meet these requirements.
Once you have the necessary evidence, you will need to assemble the application itself. You must include the processing fee when submitting your DACA application to United States Citizenship and Immigration Services (USCIS). As of December 2020, a new submittal costs $495.
USCIS will automatically reject applications that do not use the most updated versions of the appropriate forms. For a new DACA application, you will need Form I-821D, Form I-765, Form I-765WS, and Form G-1145, all of which can be found on the agency’s website. You should also consider including a cover letter that outlines the contents of your application packet, including the necessary forms and all evidence enclosed.
Have your legal representation review the entirety of your application before submitting it to USCIS. The exact facility you will be sending it to you depends on where you physically reside. The USCIS website quickly breaks down where you should send your DACA application.
Next Steps After Submitting Your DACA Application
You should receive a physical notice in the mail confirming the receipt of your application within 4 weeks of your submission. Within 4 months, you should receive another notice scheduling your biometrics appointment at a USCIS support facility. This in-person appointment will involve the taking of your fingerprints, which will be used in conducting a mandatory background check.
You may at any point during the processing time receive a Request for Evidence (RFE) from USCIS. These are issued if an element of the application is missing, unclear, or if the USCIS needs more information. An RFE will include a deadline by which a response must be submitted, so be vigilant about checking for them.
Previously, USCIS has tended to take several months to make DACA decisions. At this point, it is unclear how the sudden resumption of processing first-time applicants will impact the agency’s efficiency, especially in light of the COVID-19 pandemic. Needless to say, you should not necessarily expect a swift resolution.
Should USCIS eventually approve your DACA application, you will receive a work authorization card at your physical address. Also included will be Form I-797, the Notice of Action, which will indicate the date your current DACA status expires. As of December 2020, DACA work permits are granted on 2-year terms and must be renewed in a 120-day window before expiration.
We Can Help You Apply for or Renew DACA Status
Navigating the everchanging rules surrounding the DACA program can be exhausting and frustrating, especially when your status in the country becomes imperiled by partisan legal maneuvers. While the latest federal court decision is an undeniable win for DACA beneficiaries and eligible immigrants looking to enroll in the program, it is fair to wonder how the program might change next month, next week, or even tomorrow as the result of yet another legal challenge.
Our legal team at the Sekou Law Group are empathetic to these concerns and difficulties and ready to help you through the constantly metastasizing DACA progress. Our immigration lawyers can help first-time applicants pursue DACA status or help existing program participants work to renew their status. Our firm stays appraised of all news and changes involving DACA and other immigration matters and are responsive to any developments that might impact your case.
If you are currently enrolled in DACA or are looking to apply, do not hesitate to call (407) 269-8774 or contact us online to speak to a member of our team about your legal options. We offer free initial consultations.