On June 18, 2020, the Supreme Court issued its decision on the Deferred Action for Childhood Arrivals (DACA) program – the decision rejected the Department of Homeland Security’s termination of DACA. At the time, the decision was thought to fully reimplement DACA as it was before. Theoretically, DHS would have started accepting new applications, people would be able to renew for two-year terms, and DACA recipients would be able to apply for advanced parole to temporarily leave the country. For several weeks following the decision, however, USCIS did not issue any statements on how it would handle new cases, so it was unclear whether new applications for DACA or advanced parole applications would actually be processed.
July 28 DHS Memorandum
On July 28, 2020, Chad Wolf, the Acting Secretary of the Department of Homeland Security issued a memorandum titled, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.’” This new memorandum is essentially an amendment of the original memorandum that set forth the policy and practices regarding the DACA program.
In this memorandum, DHS Director Chad Wolf directed DHS personnel to reject all pending and future initial requests for DACA and most applications for advance parole (absent “exceptional circumstances”). Additionally, he directed DACA renewals to be shortened to one-year terms instead of two-year terms. Any approvals for deferred action, issuances of employment authorization, or approvals of advance parole issued before this memorandum will not be affected and should be valid as originally approved. These decisions are meant to be an interim step while the director decides whether to continue DACA or end it in a legally sufficient manner.
August 21 USCIS Memorandum
On August 21, 2020, USCIS issued its own memorandum providing its personnel with guidance on how to implement the memorandum issued by Chad Wolf on July 28. This memorandum was mostly a rehash of the same orders seen in Chad Wolf’s memorandum, except it added additional guidance for USCIS personnel to follow. The additional guidance tells personnel to reject initial applications for DACA and Employment Authorization Documents and to return all associated fees. It also added that these rejections will be “without prejudice,” meaning that if DHS ever decides to take initial applications again, this rejection will not bar them from consideration in the future.
In the past, if a DACA recipient went more than a year before trying to apply for DACA again, their application would be considered an initial application. Although Chad Wolf’s memorandum says to reject “all” requests for initial DACA, which would typically include the applicants described above, the new memorandum states that they will accept those for full consideration as renewals.
USCIS further explained in their memorandum that they will now strictly follow their past guidance to file for renewal between 120 and 150 days prior to DACA expiration. Therefore, they will reject any applications that were received more than 150 days prior to expiration of the current DACA validity period.
The USCIS memorandum also adds guidance on what is needed to meet the “exceptional circumstances” to be eligible for advance parole under Chad Wolf’s memorandum. USCIS states that personnel should follow the high statutory standard for parole found in INA § 212(d)(5). Under this new standard, advance parole will only be granted if travel is necessary for the following reasons:
• Travel to support the national security interests of the United States including U.S. military interests;
• Travel in furtherance of U.S. federal law enforcement interests;
• Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States;
• Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien.
USCIS also makes note of the fact that even if you were approved for advance parole, re-admission into the United States is not a guarantee and you will still need to go through regular inspection. This means that you can still be denied entry for another reason.
Between the two above memorandums, the DACA program has been substantially changed from how it was in the past. We generally advise new applicants to refrain from applying. If you have already applied, you should receive a rejection with a refund of your application fee. For applicants seeking renewal, make sure you are within the 120-150 day period to re-apply to ensure your application isn’t rejected. Also take note that you will now need to apply on an annual basis. The law and procedures surrounding DACA are subject to change as DHS policy and the administration changes. We will keep you updated throughout all of these changes to ensure you have the latest information available.
If you need further guidance or have specific questions about your own case, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.