DACA Applications – What You Should Know

• What is the latest on DACA?
• What is DACA?
• Who qualifies to apply for DACA?
• What happens after I apply for DACA?
• What kind of documents can I use to prove I qualify for DACA initially?
• Is obtaining DACA difficult?
• When can I send in my application?
• Where do I send my DACA application?
• What is advance parole, should I apply for it and should I travel?
• Are there risks to applying for DACA?
• What should one do if placed in removal proceedings?
• What is RAICES doing to help?
• Do I have any rights if I don’t have DACA?
• What should I do?

   

What is the latest on DACA?

RAICES is committed to help keep you updated. Here are some notable updates:

Note: Be aware that litigation on DACA has not ended and may continue for the foreseeable future. If you have questions about filing for DACA, Advance parole or related issues, be sure to contact an attorney right away.

• Appeal update: On October 5, 2022, The Fifth Circuit Appeals Court (“Appeals Court”) decided to remand, or send back the case to the United States District Court for the Southern District of Texas (“District Court”) to review the new Department of Homeland Security (“DHS”) DACA final rule.
• State of Texas v. U.S. decision was issued on Friday, July 19, 2021, in which the Judge vacated (cancelled) the Napolitano memo, which created the DACA program. Here is what the decision says:
  1. Initial DACA applications may be filed but the government may not grant the applications.
  2. DACA renewal applications may still be filed and granted
  3. DACA status for those with DACA will continue
  4. This Order is not requiring the government to detain, deport or take any criminal action steps against anyone with DACA, unless it would have done so already
  5. The government must post about this Order on its websites within 3 days
  6. The government needs to consider what to do now as far as the DACA program. If the government does not take any appropriate steps, the Judge may make new orders that could affect those with DACA, including those that have DACA status through DACA renewals
  7. This Order did not address Advanced Parole
• December 8, 2020: The Department of Homeland security (“DHS”) and the United States Citizenship and Immigration Services Department (“USCIS”) posted the required notice and have communicated:
  1. USCIS is accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  2. USCIS is accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  3. USCIS is accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  4. USCIS will extend one-year grants of deferred action under DACA to two years; and
  5. USCIS will extend one-year employment authorization documents under DACA to two years.
• June 28, 2020: The Supreme Court vacated the rescission of DACA

What was the latest decision?

On October 5, 2022, The Fifth Circuit Appeals Court (“Appeals Court”) decided to remand, or send back the case to the United States District Court for the Southern District of Texas (“District Court”) to review the new Department of Homeland Security (“DHS”) DACA final rule. The District Court originally found that DACA was unlawful and violated the federal Administrative Procedures Act (“APA”). The District Court’s job this time will be to review the new DACA final rule and see what if any effect it would have on the prior ruling.

What does this mean for DACA right now?

This means that DACA remains as is for now. Those currently with DACA status can continue renewing while new applicants can only file their first application without receiving a decision. Advance Parole applications can still be filed.

What else did the Appeals Court say?

The Appeals Court reviewed the history of DACA and related court cases. It recognized that several states of the United States want to end DACA in its entirety, with a plan to phase it out within two years.

The Appeals Court agreed with the District Court’s decision, but because DHS published a final rule on DACA, it felt it would be best for the District Court to review the DHS final rule and consider the situation from there. Note that the Appeals Court states that they agree with the District Court that DACA violates the substantive requirements of the APA because it did not follow the notice and comment requirements.

The notice and comment requirements demand that the government publish any proposed legislative changes, allow for the public to make comments on the changes, and that the government should respond to the public comments. Both the District Court and the Appeals Court found that the Obama administration did not follow the notice and comment requirements. Both Courts also stated that DACA was allowed to remain for now because over 800,000 individuals are benefitting from the ability to have deferred action, work permit, and other benefits.

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What is DACA?

Deferred Action for Childhood Arrivals is an immigration benefit that was created in 2012 under the Obama administration after a major push from the immigrant youth movement. Although it does not create lawful status, it does provide certain benefits, including obtaining a work permit, access to obtaining a social security card and driver’s license, among other things. DACA can be renewed as long as a person continues to be eligible.

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Who qualifies to apply for DACA?

Although the general requirements are listed below, it is important to understand which may apply to you. If you have never been granted or approved for DACA status before, you would be filing an Initial DACA application. If you have had DACA before, even if it was cancelled, denied or it lapsed, you would be seeking a DACA renewal. Initial DACA applications. Per USCIS, one may request initial consideration if:

1.  Under the age of 31 as of June 15, 2012 (born June 16, 1981 or after); 
2. Came to the United States before reaching 16th birthday; 
3. Continuously resided in the United States since June 15, 2007, up to the present time;
4. Physically present in the United States on June 15, 2012, and at the time of making the request with USCIS; 
5. Had no lawful status on June 15, 2012,
   1. No lawful immigration status on or before June 15, 2012; or 
   2. Lawful status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012. 
6. Currently in school, graduated or obtained a certificate of completion from high school,  obtained a General Education Development (GED) certificate, or honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and 
7. Has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

 For initial applications, the following information is also needed:

• Whether applicant has ever been in removal proceedings (initial and renewal)
• Every address lived in since initial entry (initial) or every address lived in since last submission of DACA application (renewal)
• Departures from U.S. since arrival and whether Advance Parole used to leave U.S.

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Renewal applications Once DACA is granted, DACA holders, to renew, have to show:

1.  Did not depart the United States on or after June 15, 2007, without advance parole;
2. Continuously residence in the United States since he or she submitted his or her most recent DACA request that was approved up until the present time; and
3. Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety

For the renewal application, only an update of addresses lived in since the last application is needed. If there are any new criminal issues, that may also need to be updated.

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What happens after I apply for DACA?

For those with initial DACA applications, at this time, you may file your initial DACA application, but the government is stopped from making a decision to grant it. You should consider filing your initial DACA application if you qualify.

For those with DACA already, you should still renew your DACA application within the 120-150 day expiration window to continue your DACA status and avoid a lapse in status, which can affect your Driver’s license as well in most states.

In both situations, once an application has been submitted, USCIS sends a receipt notice as proof of receiving the application. Soon after, a biometrics appointment notice is sent for fingerprints to conduct a background check. This step may be delayed for Initial applications. After that, it is time to wait for a decision. Approval notices can be received in weeks or in months. Because of COVID-19, there may be significant delays.

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What kind of documents can I use to prove I qualify for DACA initially?

Proof of identity

• Passport
• National identity document from your country of origin
• Birth certificate (accompanied by photo ID)
• School or Military photo ID
• Any U.S. Government document bearing your name and photo

Proof of arrival before 16th birthday

• Passport with admission stamp
• Form I-94, I-95, or I-94W
• School records
• Any immigration or DHS document stating your date of entry (i.e. Form I-862 or a Notice to Appear)
• Travel records
• Hospital or medical records

Proof of immigration status

• Form I-94, I-95, or I-94 W with expiration date of authorized stay
• Final order of exclusion, deportation, or removal issue on or after June 15, 2012
• A charging document placing you in removal proceedings

Proof of presence in US on June 15,2012

• Rent receipts or utility bills
• Employment records (pay stubs, W-2 forms, etc.)
• School records (letters, report cards, etc)
• Military records (form DD-214 or NGB Form 22)
• Official letter from religious entity confirming participation in a religious ceremony

Proof of continuous residence in the U.S. since June 15, 2007

• Copies of money order receipts for money sent in/out of country
• Passport entries
• Birth certificates of children born in the U.S.
• Dated bank transactions
• Social Security card
• Automobile license receipts or registration
• Deeds, mortgages, or rental agreement contracts
• Tax receipts and/or insurance policies

Proof of education requirement

• School records (transcripts, report cards, etc.) from U.S. school where you are currently enrolled
• U.S. high school diploma or certificate of completion
• U.S. GED Certificate

Proof of Honorable Discharge (if applicable)

• Form DD-214, Certificate of Release or Discharge from Active Duty
• NGB Form 22, National Guard Report of Separation, and Record of Service
• Military personnel & health records

Fees & Photos

• RAICES fees: Currently waived
• USCIS fees: $495 (money order)
• 2 passport style photos

Note: Proof of continual residence should be done at 3 month increments or less, to show you have continually lived in the U.S.

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Is obtaining DACA difficult?

As with all immigration applications, there is a minimum level of documentation needed to send to get an approval for any application. This is called the burden of proof and is always on the applicant. DACA in general has been relatively easy to get, provided all documentation requested has been submitted. This is true also for DACA renewals. It is important to submit all documents needed to submit the best application possible.

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When can I send in my application?

It depends. If you already have DACA, you can renew at this time. It would be wise to consider renewing your DACA application in case USCIS decides to stop taking applications at any point. We recommend submission of your DACA renewal application between 120-150 prior to expiration. For those that may be looking to apply for the first time, USCIS is now accepting applications. We encourage anyone looking to apply for the first time to speak with an attorney and get started right away.

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Where do I send my DACA application?

U.S. Citizenship and Immigration Services (“USCIS”) is the department of the U.S. government that receives immigration applications. The address of where you send it depends on where you live. We recommend that before you send in any applications, you make a full copy of your application and mail it to USCIS with tracking information. Check here to confirm what address to send the application to:  https://www.uscis.gov/i-821d-addresses

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What is advance parole, should I apply for it and should I travel?

DACA holders are now once again able to seek Advance Parole, which allows someone to travel and return to the U.S. Be sure to speak with an attorney if you are not sure of the benefits and risks of traveling. Some common risks are that entry to the U.S. is not guaranteed, that COVID may affect your ability to return to the U.S., and that if your DACA status expires while outside the U.S., you will lose DACA and your ability to return to the U.S.

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Are there risks to applying for DACA?

It is important to understand the benefits and risks of applying for DACA, especially the first time. This is something you will have to consider before you submit your application. There is no way for anyone to guarantee any results when submitting an application with USCIS. The benefits to obtaining DACA are great, especially when a person does not qualify for other immigration benefits. At the same time, one risk in applying is that USCIS will have your latest information, including where you live. Also, if USCIS decides to reject your application, they could keep the $495.00 fee sent in. Another risk is that USCIS could use your information to place you in removal proceedings if you have criminal history, for example.

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What should one do if placed in removal proceedings?

When a person is placed in removal proceedings, that means the U.S. government is actively trying to remove that person from the U.S. For anyone in removal proceedings, it is strongly recommended to speak to an attorney to understand what options are available. It is important to understand if you qualify for any defenses in Immigration Court, deadlines and next steps. One common defense, for example, is Cancellation of Removal for Certain non-permanent residents. Consult an attorney if you need further guidance. Others that are married to U.S. citizens may have additional options.

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What is RAICES doing to help?

Yes! RAICES is committed to helping you understand what resources are available for you. We are providing free consultations, free legal representation to those that need help renewing DACA, and financial assistance to cover your DACA application fees for as long as funds are available.

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Do I have any rights if I don’t have DACA?

It is very important to know your rights. Regardless of your legal status, you have the same constitutional rights as everyone else in the U.S. This includes:

• Right to remain silent
• Right to an attorney

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What should I do?

If you have questions about your legal options, speak to an attorney so you can get personalized information. Although general information is very informative, details matter in immigration law Second, it is important to get involved. Text DACAinfo to 51555 to receive action alerts. Third, take care of yourself and your family. Here are some additional resources (en español) to help you.

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