USCIS Implements DHS DACA Guidance While Agency Reconsiders the Program

The issue 

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance outlining the standards for adjudicating DACA requests and related applications for work or travel authorization. The guidance is being issued as the Department of Homeland Security (DHS) reconsiders the DACA program in the wake of a Supreme Court decision that struck down the agency’s 2017 decision to terminate it. After the court decision in late July, Acting DHS Secretary Chad Wolf ordered the agency to limit DACA renewal periods to one year, to reject new DACA requests and to deny DACA applications for advance parole except in extraordinary circumstances. 

Background

On June 18, the Supreme Court held that the Trump Administration had failed to provide adequate justification for terminating the DACA program, thus violating the Administrative Procedure Act. The Court did not rule on the legality of the DACA program as a whole, only on the manner in which the Administration tried to dismantle it. Though the Court held that the decision to terminate DACA was arbitrary and capricious, the ruling made clear that DHS has the authority to rescind the program, provided it follows proper administrative procedure. 

On July 28, Acting Secretary Wolf reiterated the Trump Administration’s view that termination of DACA is warranted, but stated that a full rescission of the program requires more consideration, signaling, as expected, that his agency intends to terminate the program. Acting Secretary Wolf ordered the agency to adjudicate DACA applications moving forward, but also set forth clear limitations. 

Adjudicating DACA requests and related applications for employment authorization

Under the new policy guidance, USCIS has confirmed that it will not accept initial DACA requests and any associated applications for an Employment Authorization Document (EAD) from individuals who have never received DACA protections in the past. USCIS will reject and return the fees for such filings. 

The agency will, however, continue to accept timely filed renewals from existing DACA beneficiaries as well as new applications from those who were previously granted DACA protections, whose prior grant has either expired or was terminated by USCIS. For these applicants, deportation relief and employment authorization will be available in one year increments; previously, DACA renewals had been granted for two years. The agency will not rescind any currently valid two-year grants of DACA or associated EADs unless there is a legal reason to do so.

USCIS states that it generally will reject DACA applications and EAD requests received more than 150 days before the expiration of the current grant of DACA or employment authorization. The agency recommends that eligible applicants file their requests between 150 and 120 days before the current grant of DACA and employment authorization expire.

Foreign nationals requesting DACA should anticipate additional scrutiny of their cases, under a new general agency policy that gives USCIS adjudicators greater discretion to request additional evidence and determine whether positive factors outweigh any negative factors in the applicant’s case and circumstances. 

Limitations on requests for advance parole

USCIS also confirmed that it will only grant DACA-based applications for advance parole in “exceptional circumstances,” meaning travel involving urgent humanitarian reasons or significant public benefits.  Examples include but are not limited to travel to: support the national security interests of the United States; support U.S. federal law enforcement interests; obtain life sustaining medical treatment; or support the immediate safety, wellbeing or care of an immediate relative, particularly a minor child. Each request will be examined on a case-by-case basis and under a totality of the circumstances standard; even if an applicant meets one of the listed examples, USCIS may still deny their advance parole request. Travel for business, vacation, education or to visit family is not likely to rise to this heightened standard. 

DACA beneficiaries who believe they are eligible for advance parole under these strict guidelines must submit their applications and related fees to the appropriate Service Center. DACA-based advance parole requests will not be adjudicated at local field offices. 

Advance parole applications that were filed before July 28, 2020, when Acting Secretary Wolf issued the DHS directive, will be rejected along with related fees. However, applicants who believe they qualify under the new standard can refile with related evidence. DACA-based advance paroles that have already been issued will not be rescinded.  

What’s next for DACA 

DHS continues to consider full rescission of the DACA program, though the precise timing of an announcement is not known. Until that time, the standards outlined in the USCIS policy guidance will remain in place. Meanwhile, legal challenges against the new interim DACA policy directives are possible.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.