Author: Laura Lichter on 06/05/2014
Today, USCIS published long-awaited guidance for renewals under the Deferred Action for Childhood Arrivals or DACA program, including a new Form I-821D for both initial and renewal applications. The guidelines should mean a streamlined process for most renewals, but the agency missed a real opportunity in how government processing times impact those who don’t—or can’t—apply months in advance.
The Good: For most young immigrants who already have DACA, the renewal process should be fairly straightforward. In order to be considered, a renewal applicant cannot have left the United States (without permission from the government) since August 15, 2012 and must have continuously resided in the country since they were granted DACA. They must also not have any disqualifying criminal history.
Consistent with prior policy, USCIS took a real-world approach to the educational requirement. An initial grant of DACA requires that the applicant be in school, have graduated High School, obtained a GED, or show proof of continuing educational efforts. For renewals, the agency is not asking for further proof that the individual graduated or even continued in their studies. For those who were forced to drop out or stop schooling due to financial or other difficulties, this practical solution will be a real boon to a lot of families and young people just starting out.
The Not-So-Bad: USCIS wants DACA renewals in early. So much so, apparently, that they are hinting that for early filers (more than 120 days before expiration) whose applications are not granted due to unexpected delays, USCIS “may provide deferred action and employment authorization for a short period of time.” That being said, USCIS doesn’t want the renewal applications too early: filings received more than 150 days before expiration may be rejected. So, trying to hit that sweet spot between 120-150 days before expiration might be your best bet.
Unfortunately, at $465, the filing fees associated with DACA renewals are still steep for many families with multiple applications or for young adults struggling to make it through school or in their first jobs. I’ve heard lots of talk about potential microloans or possible funding sources but so far I haven’t heard of an existing and simple option for the tens of thousands who may run into this issue. Ideas welcome!
The Ugly: Applicants who don’t file in that sweet spot of 150 to 120 days prior to expiration have some significant risks. Timing on consideration of initial DACA filings has been creeping up, with a small, but nonetheless significant percentage of cases languishing for months past “normal” processing times. A DACA renewal, after all, should just be a matter of a background check to make sure no red flags pop up from the last two years of a person’s life, scheduling biometrics and running a report.
To my mind, there’s absolutely no reason DACA renewals shouldn’t be held to the same 90-day standard as other work permit renewals that require the same background check. If USCIS thinks they won’t be able to hit the 90 day benchmark, there’s plenty of precedent to allow for continued eligibility to work for those who file prior to expiration. The same goes for how a lapsed or delayed renewal might impact “unlawful presence.” While eligibility to work (and in many states, qualify for a driver’s license or in-state or reduced tuition) may be the more immediate concern, DACA grantees should also pay attention to how accruing unlawful presence may trigger severe immigration consequences in the future.
All DACA renewal applications will have to go through a background check, and anyone who has had trouble with the law should be cautious. A conviction for a felony, a “significant misdemeanor” or three or more misdemeanors probably means that a renewal won’t be granted. At best, someone with this kind of a history may just be throwing away their $465 in filing fees; at worst, that’s a lot to pay for a one way trip to a country that’s no longer home. In short, if there’s criminal history, better see an immigration lawyer to evaluate risk and any other options.
And of course, USCIS may use a renewal application as an opportunity to check for fraud. If the information on an old application doesn’t match up with the information on the new form, that may be cause for concern. A lot of initial DACA applications were filed without qualified legal help, without fully understanding exactly what was being asked for or knowing what was actually included. In some cases, those inconsistencies may be innocent errors, in others, the DACA applicant may him- or herself be the victim of fraudulent preparers. Best bet is to make sure you know what was filed and get appropriate help if there are any discrepancies.
Finally, while it sure looks like the renewal process should be relatively straightforward, the devil is in the details. An increasing number of DACA applicants—and even more so, DACA renewers—may be eligible for something better than deferred action, like permanent residence or another path to legal status. Use the free PocketDACA App to review eligibility or find help, or use www.ailalawyer.com to find an immigration lawyer to evaluate your best options.
Written by Laura Lichter, AILA Immediate Past President