Guidance for DACA Recipients and Legal Practitioners – Frequently Asked Questions

July 20, 2021
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[UPDATE ON 9/28/2021] – A proposed rule to regularize DACA policy went live today. We want to make sure folks know there has been no change to DACA because of it. For now, the program remains open for renewals, closed for new applicants and work permits remain valid. Please go HERE for more information and to learn how you can make a comment on the proposed rule and have your voice heard!

On July 16, 2021, Texas federal court Judge Hanen published his opinion on the DACA case, Texas v. United States, which challenged the legality of the DACA policy. Judge Hanen’s opinion is that DACA is not a lawful policy, but for now will allow those with existing DACA to continue to renew. No first-time initial DACA requests will be granted at this time. 

What does this mean if you currently have DACA?

 If you currently have DACA, your DACA and work permit are still valid. First-time Initial DACA requests that are already granted, as well as renewals, will continue to be valid for now. You can still use your social security number and work permit; everything stays the same with your current status. Don’t fall out of status. If your DACA expires soon, renew now! 

USCIS encourages renewals to be filed between 120 and 150 days prior to the expiration of your DACA. However, USCIS will accept your forms before 150 days but USCIS may not currently process them until your request is within 150 days of expiration. While USCIS does not currently process formal expedite requests from DACA requestors, it is our understanding that USCIS may still consider circumstances– such as those described on USCIS’ expedite request webpage— that warrant more expeditious processing. We therefore encourage you to include any information that may be helpful to USCIS in processing your renewal on a cover letter that you include with your renewal DACA and employment authorization filing. 

What does this mean if you have a first-time DACA request in the middle of processing? 

Judge Hanen ruled that USCIS can no longer grant DACA to new DACA requestors. If you filed your first-time initial DACA request with USCIS but it has NOT been granted yet, it is our understanding as of the date of this publication that it will not be granted until further notice. 

Questions on First-Time (Initial) DACA  Requests 
  1. I have never had DACA before and filed a request before the Hanen decision. I completed my biometrics; what will happen next?
    • Hanen’s order prohibits USCIS from granting any first-time initial DACA requests at this time. As litigation proceeds through the courts, we will keep you updated here. 
  2. Will first-time DACA requests all automatically be rejected now?
    • USCIS can still accept first-time initial DACA requests (meaning USCIS will not reject and return your request) but cannot grant requests based upon Hanen’s order.
  3. I was planning on sending my first-time request out soon. Should I still?
    • Hanen’s order prohibits USCIS from granting any first-time initial DACA requests at this time. We recommend that you consult with an immigration attorney or accredited representative before filing your request. As litigation proceeds through the courts, we will keep you updated here. 
  4. My biometrics appointment is scheduled for the near future. Should I still go to my appointment?
    • USCIS has begun cancelling biometrics appointments for first-time DACA requestors. However, until you receive a cancellation of your biometrics notice, because a DACA request could be denied for failure to appear for a biometrics appointment, even though Hanen’s decision prohibits the granting of first-time initial DACA requests, this does not prohibit USCIS from accepting your biometrics. We will update this Guidance with any developments.
  5. I received an RFE (Request for Evidence) for my first-time initial DACA request. Should I still respond to it?
    • A DACA request could be denied for failure to timely respond to a Request for Evidence (RFE). Even though Hanen’s decision prohibits granting first-time initial DACA requests, we do not think it prohibits USCIS from accepting your response to the RFE. We recommend that you consult with an immigration attorney or accredited representative before responding to your request. We will update this Guidance with any developments. 
  6. Will I get my money back if I filed an initial request that won’t be granted?
    • USCIS will not be issuing refunds for pending initial DACA requests that will not be granted and remain on hold because of the Hanen decision.
  7. Am I at risk of deportation now?
    • President Biden and DHS have made it clear that Dreamers are not a priority for deportation. Even Judge Hanen said in his order that this court decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”
    • ICE is currently required to follow Enforcement and Removal Priorities published on February 18, 2021 that set out who is considered a removal priority. We recommend that you consult an immigration attorney or accredited representative if you believe you fall under an enforcement and removal priority category. 

Notwithstanding the above, if  you have any problems with Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), please call 1-844-363-1423, UWD’s MigraWatch Hotline, as well as your Senator or Representative, who may be able to liaise with ICE on your behalf. 

Renewals
  1. Are renewals still being processed?
    • USCIS will continue accepting and processing DACA renewal requests until there is a court order saying otherwise.
  2. Should I renew early?
    • If your DACA expires soon, we encourage you to renew as soon as possible. If you are thinking about renewing early, we recommend that you consult with an immigration attorney or accredited representative before filing your renewal.
  3. How long will USCIS be accepting DACA renewal filings?
    • USCIS will continue accepting and processing DACA renewal requests until there is a court order saying otherwise. The Biden Administration announced that it will appeal Judge Hanen’s decision, and there may be other litigation that may impact timing. So, the timing is unknown but we will update this Guidance with any developments. 
  4. My DACA lapsed for more than a year, and I submitted my DACA renewal as an initial request. What does that mean for me?
    • If you submit a DACA request more than one year after your last DACA grant expired or after your most recent DACA grant was terminated (at any time), your request is considered an initial request and will not be granted. USCIS has stated that it will issue receipt notices and accept payment for such requests, but will not process or approve these filings. This guidance has been updated as of July 28, 2021 in accordance with the latest guidance from USCIS.
  5. I timely filed my DACA renewal request but it is still pending. However, my prior DACA has expired due to USCIS processing delays. Is my pending DACA request still valid and will it, along with my work authorization request, be processed?
    • Based on Hanen’s order, USCIS should process a renewal request from any DACA recipient, even if your DACA has expired. We will update this Guidance and share any new information from USCIS or the courts.
Advance Parole
  1. Is advance parole open for DACA recipients right now?
    1. According to the latest guidance from USCIS , the agency will continue to process and grant advance parole to current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before applying for advance parole and before traveling outside the U.S.
  2. I was approved for advance parole, how will the Hanen decision affect me?
    • According to the latest guidance from USCIS , the agency will continue to process and grant advance parole to current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before applying for advance parole and before traveling outside the U.S.
  3. My advance parole request is still pending. Will USCIS process it?
    • According to the latest guidance from USCIS, the agency will continue to process and grant advance parole to current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before applying for advance parole and before traveling outside the U.S.
  4. I have DACA and am currently outside the United States with advance parole. Can I still return to the U.S. using my advance parole under DACA?
    • According to the latest guidance from USCIS, the agency will continue to process and grant advance parole to current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before applying for advance parole and before traveling outside the U.S. rWe think that  the Hanen ruling permits Customs and Border Protection (CBP) to honor advance parole granted to DACA recipients by USCIS.
Next Steps 
  1. Who can appeal Judge Hanen’s decision?
    • Any party can appeal the decision. An appeal would go to the Fifth Circuit Court of Appeals. We don’t yet know how long it would take to have a new decision or order. After a decision from the Fifth Circuit Court of Appeals, any party could appeal further to the Supreme Court of the United States. 
  2. I heard that the processing of DACA requests is taking a long time. What is the current status?
    • Media reports indicate that USCIS has assigned more staff to process DACA filings and it is our hope that the increase in staff will help reduce the current backlog. You can look up your case status here
  3. Am I at risk of deportation if my DACA request cannot be granted?
    • President Biden and DHS have made it clear that Dreamers are not a priority for deportation. Even Judge Hanen said in his order that this court decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”
    • ICE is currently required to follow Enforcement and Removal Priorities published on February 18, 2021 that set out who is considered a removal priority.
    • If you currently have DACA, the best protection against deportation is to ensure that you don’t lose this protection. If your DACA expires soon, renew now! 
What can we do now? 

It’s important that Congress pass legislation that provides permanent solutions for undocumented youth with or without DACA, TPS holders, farmworkers, essential workers and our family members, and President Biden agrees. If you’re a DACA recipient, know that you are lawfully present in the U.S. and have rights. Check in on your DACA friends today.

Take Action

We’ve known since the beginning that DACA is not enough. Hanen’s ruling is a reminder that our community needs permanent protections. Right now, Senate Democrats have introduced a budget resolution that included a pathway to citizenship for millions of undocumented people. Democrats in Congress must ensure a pathway to citizenship stays in the reconciliation package before the August recess. Text “PATHWAY” to 877-877 to demand Congress deliver citizenship for millions of undocumented people NOW! 

DACA PARTIALLY ENDED: WE DEMAND CITIZENSHIP NOW!

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