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DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

Fight for DAPA/DACA To Continue Despite SC Ruling

Immigration was at the forefront of very significant events last week. On June 23, the United Kingdom voted to leave the European Union and immigration concern was a major factor. Meanwhile on the same day, here in the United States, the Supreme Court deadlocked on Pres. Barack Obama’s immigration initiatives.

The Supreme Court’s evenly-divided decision in the case of United States v. Texas means that the lower court decision against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action on Child Arrivals (DACA) stays.

Pres. Obama introduced DAPA and DACA expansion in November 2014 following the failure of Congress to pass a comprehensive immigration reform bill. DAPA and DACA were meant to ease the threat of deportation of more than 4 million undocumented immigrants.

After Obama announced these immigration initiatives, Texas and 25 other states filed a lawsuit in the district court claiming that the expanded DACA and DAPA violated the “take care clause” of the Constitution. They also argued that the initiatives were not in accordance with immigration laws and violated the Administrative Procedure Act (APA). The district court judge issued a preliminary injunction blocking the implementation of these policies.

On appeal by the government, the Fifth Circuit upheld the injunction. Thus, the case found its way to the Supreme Court.

DAPA would temporarily defer deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA, on the other hand, was first introduced by the Department of Homeland Security (DHS) back in 2012. Those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony can benefit from DACA. The expanded DACA eliminated the age requirement and pushed the arrival date to January 1, 2010.

Since its implementation in 2012, DACA has resulted in the improvement of the lives and economic conditions of over 700,000 young people who were granted work permits, obtained access to public universities and scholarships, and opened a bank account, among others.

The ruling of the Supreme Court is a setback for immigrants and their families but immigrant rights advocates are vowing to continue the fight. They are urging the Department of Justice to seek a rehearing. If this is not granted, then the case will go back to the district court for a decision on the merits. If the district court decides to strike down the initiatives, the government could appeal the case all the way to the Supreme Court again.

Immigrant advocates are also continuing to lobby the US Congress to pass immigration laws that would keep families united and benefit the economy.

Travel Guidelines for DACA Applicants

More than 407,000 requests have been received by the USCIS since the deferred action program for childhood arrivals (DACA) was implemented on August 15, 2012. As of January 17, 2013, over 371,000 biometric appointments have been scheduled, 154,404 requests approved and more than 13,000 applications rejected. About 142,000 applications are currently under review.

Mexico leads the top ten countries of origin of childhood arrivals that filed for deferred action (290,019), followed by El Salvador (16,824), Honduras (10,882), Guatemala (9,904), Peru (5,974), South Korea (5,354), Brazil (5,098), Colombia (4,503), Ecuador (4,386) and the Philippines (3,019).

California is the state of residence of the highest number of the applicants (110,230), followed by Texas (63,455) and New York (23,389). The other states included are: Illinois, Florida, North Carolina, Arizona, Georgia, New Jersey and Colorado.

The USCIS recently released guidelines clarifying a number of issues on policy and procedure including questions on brief departures and travels outside the U.S. The guidelines state that the continuous residence from June 15, 2007 will not be interrupted if the absence from the U.S. on or after June 15, 2007 and before August 15, 2012 was brief, casual and innocent.

The guidelines further clarified that in order to be considered brief, casual and innocent, the absence must be short and reasonably calculated to accomplish the purpose for the absence. Activities outside the U.S. must not be contrary to law.

Absence from the U.S. because of an order of exclusion, deportation or removal will interrupt continuous residence. Similarly, absence resulting from an order of voluntary departure or an administrative grant of voluntary departure before being placed in exclusion, deportation or removal proceedings will also disrupt continuity of residence.

Travels outside the U.S. made after August 15, 2012 will result in a denial of the application. The applicant must remain in the U.S. while the application is under review. Once the USCIS has approved the request for deferred action, the applicant may apply for advance parole in order to travel outside the U.S. The application for advance parole is Form I-131 and the filing fee is $360. Applicants may not file for advance parole until the Department of Homeland Security decides the application for deferred action.

Advance parole will generally be granted only for humanitarian, educational and employment purposes. Medical treatment, academic research and employment are valid basis for advance parole but travel for vacation is not.

When there is already an order of deportation or removal and the USCIS approves the applicant’s request for deferred action, the applicant may still request advance parole if he wishes to travel outside the U.S. However, the applicant must make sure to reopen his/her case before the Executive Office for Immigration Review and have the proceedings terminated, otherwise, he may be considered deported or removed.

The updated guidelines also clarified that an individual who left the U.S. for some period of time before he turned 16 and returned to establish residence in the U.S. may still be considered for deferred action. He must, however, demonstrate that he established residence in the U.S. before his 16th birthday and that he meets the continuous residence requirement from June 15, 2007 until the present.

10,000 DACA Applications Rejected

More than 53,000 young immigrants have been spared from possible deportation since President Obama’s deferred action program for childhood arrivals (DACA) began about three months ago. Between August 15 and November 15, 2012, over 308,000 requests for deferred have been received by the U.S. Citizenship and Immigration Services (USCIS), which translates to about 4,800 requests filed per day.

More than 120,000 requests are under review and many more are in the pipeline as 273,000 cases are scheduled for biometrics. Over 10,000 applications have been rejected.

Mexico is the country of origin of a great majority of the applicants (212,514 applications), followed by El Salvador (13,769), Honduras (8,577), Guatemala (7,630) and Peru (5,052). South Korea (4,880), Brazil (4,345), Colombia (3,856), Ecuador (3,737) and the Philippines (2,613) round up the top ten countries of origin of the childhood arrivals that filed for deferred action.

The top three states of residence of the applicants are California (81,858), Texas (47,727) and New York (19,320). The other states on the list are: Florida, Illinois, North Carolina, Arizona, New Jersey, Georgia and Virginia.

With President Obama’s reelection many are confident that the program will continue. A surge in the applications is very likely with more DREAMers coming out and applying for deferred action.

It is important to make sure that a DACA request is filed correctly in order to avoid delay or rejection.

In the Filing Tips recently released by the USCIS, the agency reminds everyone that small mistakes could lead to rejection of the application.

Applicants must send all forms in the same package. Form I-821D, I-765 and I-765WS must be mailed together to the correct address found in the instructions. The package must be mailed since electronic filing is not available.

The package must be accompanied by the filing fee of $465, which can be in a single check or in two separate checks of $380 and $85.

Applicants must make sure that they use the most recent versions of the forms. The USCIS reminds that all forms are available on its website for free. Also, Form I-821D should not be confused with Form I-821 which is an entirely different form.

Applicants must review age guidelines before filing. Applicants must generally be at least 15 years old at the time of filing, and cannot be 31 years or older as of June 15, 2012.

The applicant must remember to put the same name on all the forms because changes in the way the information is written can result in delays. The I-821D and I-765 forms must be signed by the applicant. If the applicant was assisted by another person, that person must also sign both forms.

All questions must be answered completely and accurately. If an item is not applicable or if the answer is “none”, the space may be left blank. However, fields asking for dates must be answered, especially those on the I-821D asking for dates and places of entry. If one cannot remember the exact place or date, the closest approximation must be provided.

Supporting documents and evidence help the USCIS make a decision on the rquest so they must in all cases be submitted with the forms. It will be helpful to the reviewing officer if the evidence is organized and labeled according to the guideline that it meets.

To establish economic need for the employment authorization, the applicant must indicate his or her personal current annual income, annual expenses and value of assets. There is no need to submit supporting documentation to prove economic necessity. Financial information of other household members is not included.

The USCIS prefers that applicants complete the form on the computer and then printed, instead of being filled out by hand. Black ink must be used if the form is filled out by hand and correction tape or “white-out” fluid must be avoided because scanners can see through it and cause the form to be processed as incorrect.

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