07 Sep DHS issued FAQ on ending DACA as of September 5, 2017
By Atty. Crispin Caday Lozano
The DHS issued a FAQ on how DACA holders should respond to the end of DACA as of September 5, 2017:
Q1: Why is DHS phasing out the DACA program?
A1: Taking into consideration the federal court rulings in ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that program should be terminated. As such, the Acting Secretary of Homeland Security rescinded the June 15, 2012 memorandum establishing the DACA program.
Q2: What is going to happen to current DACA holders?
A2: Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.
Q3: What happens to individuals who currently have an initial DACA request pending?
A3: Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate—on an individual, case-by-case basis—all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.
Q4: What happens to individuals who currently have a request for renewal of DACA pending?
A4: Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017. USCIS will reject all requests to renew DACA and associated applications for EADs filed after October 5, 2017.
Q5: Is there still time for current DACA recipients to file a request to renew their DACA?
A5: USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the time period described above.
Q6: What happens when an individual’s DACA benefits expire over the course of the next two years? Will individuals with expired DACA be considered illegally present in the country?
A6: Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred. When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.
Q7: Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?
A7: Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Q8: Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?
A8: Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security of public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Q9: Can deferred action received pursuant to DACA be terminated before it expires?
A9: Yes. DACA is an exercise of deferred action which is a form of prosecutorial discretion. Hence, DHS will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
Q10: Can DACA recipients whose valid EAD is lost, stolen or destroyed request a new EAD during the phase out?
A10: If an individual’s still-valid EAD is lost, stolen, or destroyed, they may request a replacement EAD by filing a new Form I-765.
Q11: Will DACA recipients still be able to travel outside of the United States while their DACA is valid?
A11: Effective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole under standards associated with the DACA program. Those with a current advance parole validity period from a previously-approved advance parole application will generally retain the benefit until it expires. However, CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border. Further, USCIS retains the authority to revoke or terminate an advance parole document at any time.
Q12: What happens to individuals who have pending requests for advance parole to travel outside of the United States?
A12: USCIS will administratively close all pending Form I-131 applications for advance parole under standards associated with the DACA program, and will refund all associated fees.
Q13: How many DACA requests are currently pending that will be impacted by this change? Do you have a breakdown of these numbers by state?
A13: There were 106,341 requests pending as of August 20, 2017 – 34,487 initial requests and 71,854 renewals. We do not currently have the state-specific breakouts.
Q14: Is there a grace period for DACA recipients with EADs that will soon expire to make appropriate plans to leave the country?
A14: As noted above, once an individual’s DACA and EAD expire—unless in the limited class of beneficiaries above who are found eligible to renew their benefits—the individual is no longer considered lawfully present in the United States and is not authorized to work. Persons whose DACA permits will expire between September 5, 2017 and March 5, 2018 are eligible to renew their permits. No person should lose benefits under this memorandum prior to March 5, 2018 if they properly file a renewal request and associated application for employment authorization.
Note: This is not a legal advice. If you have questions about your legal status, you may seek consultation from experienced immigration attorney.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers Association. He specializes in immigration law and personal injury. For free consultation email or call (email@example.com/ 1-877-456-9266)