USCIS Implementing Guidance on DHS Secretary Wolfe’s DACA Memo

U.S. Citizenship and Immigration Services today provided guidance on how it will implement Acting Secretary of Homeland Security Chad Wolf’s July 28 memorandum regarding the Deferred Action for Childhood Arrivals (DACA) policy.

In a message to stakeholders, the USCIS says:

“Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.

USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.”

Earlier this month, California’s Attorney General sent a letter urging a federal judge to address the future of DACA. The letter questions the legality of the DHS memorandum in light of the Supreme Court ruling that the administration’s rescission of DACA violated the Administrative Procedure Act. Experts, as well as the California AG, argue the Supreme Court decision “had the effect of reinstating DACA, on its original terms, on a nationwide basis” which includes processing initial DACA applications.

MHC