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I created this Frequently Asked Questions about DACA and the injunction. I have now updated it. Generally speaking, people should continue to renew their DACA and see the USCIS website for up to date information.
WHAT IS THE LATEST INFORMATION WITH REGARDS TO DACA?
The Trump Administration, pressured by 9 attorney generals from various states, decided to phase out the Deferred Action for Childhood Arrivals program, which gave temporary work permits and protection from deportation to almost 800,000 people. An official DHS memorandum rescinding DACA is here and an FAQ developed by USCIS is here. However, on January 9, 2018, a federal judge in California issued a nationwide injunction on the repeal of DACA. No stay was sought at the Supreme Court, and no decision should be expected till at least June 2018. This means individuals can continue to apply for DACA as the case makes its way up through the courts.
I CURRENTLY HAVE DACA AND IT EXPIRES IN THE NEXT 6 MONTHS. CAN I FILE FOR RENEWAL?
Yes. If your DACA is expiring this year or even early next year, you can file for a renewal now.
I USED TO HAVE DACA BUT IT EXPIRED OR WAS TERMINATED. CAN I FILE FOR RENEWAL?
Yes. If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request.
If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions.
I NEVER APPLIED FOR DACA BUT I AM ELIGIBLE. SHOULD I APPLY NOW?
No initial DACA applications are being accepted at this time. They will be rejected by USCIS.
CAN I APPLY FOR ADVANCE PAROLE?
No. USCIS will not accept advance parole applications from DACA recipients at this time. Please speak to your study abroad advisor and academic counselor to make alternative plans.
I HAVE DACA AND I NEED TO TRAVEL ABROAD FOR EMERGENT REASONS NOW. WHAT SHOULD I DO?
USCIS is not processing advance parole applications at this time.
I WANT TO APPLY BUT I AM SCARED. WHAT IF THE TRUMP ADMINISTRATION GETS A HIGHER COURT TO REVERSE THIS DECISION?
The Trump Administration will definitely appeal this ruling to the Ninth Circuit, and the U.S. Supreme Court. We cannot predict how long the DACA program will continue to be in place, so if you are in the fortunate position to renew your DACA right now, and have no new criminal history, we would urge you to renew. It is very likely that even with an emergency stay from a higher court, the only risk is that your application may be administratively closed, and your check returned to you.
MY DACA IS NOT EXPIRED AND DOES NOT EXPIRE FOR THE NEXT 6 MONTHS? CAN I STILL APPLY?
Yes. While USCIS recommends filing for renewal between 150 and 120 days from when your DACA expires, requests received earlier than 150 days in advance will be accepted. However, this could result in an overlap between your current DACA and your renewal. This means your renewal period may extend for less than a full two years from the date that your current DACA period expires.
I HAVE NEW CRIMINAL HISTORY. SHOULD I APPLY?
Please speak to an attorney or accredited BIA representative as to whether your criminal records makes you ineligible for DACA. Your attorney should be able to advise you on the immigration consequences of criminal convictions, and recommend post-conviction relief, that may make you eligible for DACA again.
I CURRENTLY HAVE DACA. WHEN DO I LOSE THE ABILITY TO WORK LEGALLY AND PROTECTIONS AFFORDED TO ME BY DACA?
Current work permits will remain valid until their expiration date. The work permits are not being canceled or rescinded. For example, if your work permit expires December 10, 2018, it will remain valid until December 10, 2018.
I WANT TO RENEW MY DACA BUT CANNOT AFFORD THE FEES?
We are working with community partners to raise additional emergency funds to be able to provide the $495 renewal for other members in our community. Community partners such as the Mission Asset Fund, the Mexican Consulate, and various non-profits have also stepped up efforts to provided full financial scholarships for DACA applications fees ensure that those who can renew their DACAs can do so. A great guide for all workshops and fee-assistance programs is available here.
CAN I CONTINUE TO WORK IF AND WHEN DACA EXPIRES?
When your current DACA work permit expires, you will be out of status, and start accruing unlawful presence. It is critical that you speak with your immigration attorney about other legal options that may exist for you to continue working and legally residing in the United States.
See more guidance with regards to DACA and your rights in the workplace here.
I TRUSTED THE GOVERNMENT WITH MY INFORMATION WHEN I APPLIED FOR DACA. CAN THEY USE IT TO DEPORT ME?
Generally, USCIS has stated that 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 or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria.
The vast majority of DACA recipients, unless they have a final order of removal, cannot be simply picked up by CBP, ICE and deported. They are entitled to proper notice and court proceedings conducted before an immigration judge, and these proceedings can take many years to adjudicate.
WHAT BENEFITS CAN I GET WITH MY EXISTING IMMIGRATION STATUS?
If you currently have DACA, and never got a social security number, now is the time to go to the local Social Security Administration to request one. You will continue to need and use this social security number for many other things besides employment such as housing applications, graduate school applications, filing taxes, and applying for credit/loans and so on.
If you do not have a California ID or driver’s license, you should make an appointment with the local DMV to obtain these benefits.
Do note that AB-60 remains the law in California, so if the DACA program eventually gets revoked or even if you have no immigration status, you can still get a driver’s license in California.
MY DACA WORK PERMIT WAS LOST. CAN I APPLY FOR A REPLACEMENT?
If an individual’s still-valid work permit is lost, stolen, or destroyed, they may request a replacement work permit. The replacement work permit will have the same validity period as the lost/destroyed/stolen work permit.
WILL I LOSE MY FINANCIAL AID PACKAGE IF MY DACA EXPIRES?
CAN LOCAL LAW ENFORCEMENT OFFICIALS FOLLOW AND ENFORCE IMMIGRATION LAWS?
California is leading the way to fight local law enforcement collaboration with federal immigration authorities, though there is always more work to be done. In 2013, the state enacted the TRUST Act (AB 4), which ended local police collaboration with ICE (or ICE holds), except for in cases of individuals with serious criminal convictions. This remains the law in California, so students and community members should continue to report crimes committed against them to local law enforcement. The TRUTH Act, which went into effect on January 1, 2017, brings transparency to local jail entanglements with ICE, and thus, further protects our community members from ICE custody. California passed a slew of new bills to protect immigrants in 2017. Campus officials across the UC system are currently investigating how to best protect undocumented students.
CAN I CONTINUE TO TRAVEL TO OTHER STATES IF I AM UNDOCUMENTED OR IF I LOSE DACA STATUS?
Traveling within 100 miles of the U.S. border (the “constitution-free” zone) is dangerous, and exposes people to detection, arrest, and detention by Customs and Border Protection (CBP) operating various checkpoints along these routes. Undocumented immigrants have traveled to other states, including Hawaii and Alaska, in the past, with an unexpired passport from their consulate, or a government-issued identification document issued by the state of California, though they should fully understand and evaluate the risk of doing so to themselves under a new political Administration. When in doubt, consult with your attorney.
IF I CAN NO LONGER WORK, DO I QUALIFY FOR ANY KIND OF PUBLIC BENEFITS?
California has implemented some major benefit programs that are available to immigrants and people with non-immigrant status, such as a pending green card application, SIJS status, pending U or T visa.
Children, regardless of immigration status, up to the age of 19 are eligible for full-scope Medi-Cal in California.
This handy chart tells you about your public benefits as a U visa or T visa applicant. Generally, not just recipients but even applicants for a U visa are eligible for CalWORKs, Medi-Cal, Healthy Families, Food Stamps, IHSS, General Assistance, and Refugee Social Services (RSS).
I haven’t blogged in a while. The Trump Administration is keeping me busy. Sometimes I wonder why I chose this life, and then I have to remind myself that sometimes we don’t choose our destiny. Sometimes, we just have to figure out that we are where we are because it was meant to be.
I’ve put out some (hopefully) helpful FAQs with regards to the DACA repeal. Please share them widely.
For those who are in a position to give, I am also fundraising to help pay for the DACA renewal fees of community members who cannot come up with $495 at the drop of a hat, to file their renewals.
Donations are tax-deductible! Under “I want my donation to be dedicated” please put “DACA” or “Immigration”
If you’re the media, or have questions about other immigration matters, I may not get back to you for several weeks. Additionally, I will be out of the country between September 23 and October 15th. I appreciate your patience during these trying times.
First, lets try to make sure your renewal is not delayed. Apply at least 6 months in advance and use the mailer that you received with your last work permit for the renewal for a more speedy turn-around.
However, if you do everything right, and your renewal is still delayed, here is what you can do:
1. Check your case status online at USCIS – You will need to enter the receipt number for either your DACA application or your employment authorization application.
2. Initiate a service request at USCIS – Call USCIS National Service Center at 1-800-375-5283 and request to use the Service Request Management Tool (SRMT) to request expedited processing of your case and ask for an interim EAD, if your DACA renewal application was filed 120 days in advance. In most cases, you have to ask to speak to a supervisor. In any case, write down any number they provide you.
Be prepared to provide your name, alien number, and receipt numbers to the customer service center. In some limited cases, applicants who have had their initial DACA denied, can also use this tool as an appeal to inform USCIS that the denial based on an administrative error.
3. Elevate your case status: After making the initial service request, contact the USCIS Headquarters Office of Service Center Operations by email at: SCOPSSCATA@dhs.gov. You should receive a response within 10 days.
4. Seek assistance from the USCIS Ombudsman – Open a case assistance request with the USCIS Ombudsman by filing DHS-7001. Make sure to state any reason why you need your DACA to be renewed ASAP such as employment opportunity or travel abroad or financial detriment.
Once you have completed and submitted the online form, you should be issued an Ombudsman-specific case number. Then you can contact, by email, one of these Ombudsman staff people, and request them to look into your case:
5. Contact your Congressional Representative: If the matter continues to be unresolved and there is a lapse in your work authorization, contact your individual Congressional representative for assistance. You can find your representative here.
6. Contact the Service Center that is processing your case:
- California Service Center: firstname.lastname@example.org
- Vermont Service Center: email@example.com
- Nebraska Service Center: NSCFollowup.NCSC@uscis.dhs.gov
- Texas Service Center: firstname.lastname@example.org
If you do not receive a response within 21 days of emailing the service center, you may email the USCIS Headquarters Office of Service Center Operations at SCOPSSCATA@dhs.gov
I see delayed renewals quite a bit these days so while I am not certain that the steps above will work in all cases, it is worth a try and better than waiting around for a response.
As a final note, applicants renewing their DACA should make sure to file 180-150 days before the expiry date listed on their Employment Authorization Document (EAD). Applicants who anticipate traveling abroad while their DACA renewal is due should always file earlier than the 150 mark. Filing less than 120 days in advance may lead to delays in lapses of work authorization, and accruing of unlawful presence.
You just received a green card, or advance parole, and want to travel internationally?
First of all, congratulations are in order!
If this is your first time traveling abroad in a while, here are some things you should do or bring before your trip.
1. Obtain a money belt that straps to your body to store your cash, passport and valuables.
2. Carry travel insurance if your regular health insurance doesn’t cover you while abroad. Travel insurance is also useful if your baggage is lost or delayed, and provides reimbursement on prepaid reservations if your trip is canceled, interrupted or delayed.
3. Make a copy of your passport, and leave it in the safety of your attorney or a friend.
4. Register with your country’s embassy. If there is a problem in the country while you are traveling abroad, this would make it easier for the embassy to contact you, and get you out of harm’s way.
5. Do not forget to renew your prescriptions, and take some over the counter medications with you. For example, I do not travel abroad without my allergy medication, regular pain killers, and antibiotics.
6. Call your bank provider and place travel alerts on your credit and debit cards. You do not want the bank to think there is fraud on your account while you are traveling abroad, and then lock your account as a precautionary measure.
7. Carry several types of currency: local cash, traveller’s cheques, some U.S. dollars to convert if you spot a deal, credit cards that have no foreign transaction fees abroad, debit cards to withdraw money from an ATM without fees or have the fees reimbursed such as Charles Schwab. Also, you can get cash advance from your Discover Card while traveling.
8. Check the country’s entrance/exit fees. Some countries require travelers to pay in order to enter or leave the country. These fees are not included in the price of your airline ticket, and can range from $25 to $200.
9. Buy some local currency before you head out: You can also ask your local U.S. bank for some foreign currency, but note that they do not usually give you the best conversion rates. Research the best conversion rate for the country you are visiting, and convert your currency there.
10. Get a phone or data plan that works internationally. You do not want to be stuck with those hefty AT&T or Verizon bills. If you want to be incommunicado, look into shutting off your data roaming, and use Viber abroad in case you do need to reach your family or your attorney.
11. Do not forget a power strip and plug adapter. You will need these while traveling, and in many countries, your electronics would need an international friendly adapter to work.
16. Use an app such as Tripit to organize your travel. I travel frequently and Tripit is my to-go app for storing my flight information, and itinerary. It also helps your friends and family figure out where you are on any given day (if you invite them to view your travel plans).
12. If you plan to travel a lot, you may want to invest in Global Entry to avoid long lines at airports and have TSA precheck privilege. Better yet, some credit cards provide a reimbursement for this fee, so you may want to look into this.
13. Visiting a foreign country may be as easy as going to Canada and flashing your green card. But some countries, such as Australia, may require you to obtain a visa, even though you have a green card or advance parole. Check the visa requirements of the countries you plan to visit ahead of time, so you can get all your ducks in a row.
14. Layovers: Layovers offer a great way to see several countries on one trip, but need to be planned accordingly. If you have long layovers in countries other than your final destination, you should find out whether you can get a transit pass or require a visa to explore those countries.
The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Prerna Lal, and the user.
I went to bed last night mentally doing a checklist of everyone I know who qualifies and does not qualify under the President’s immigration action. As a community advocate and formerly undocumented immigrant, the word that most aptly describes last night is “bitter-sweet.”
While the announcement is not enough, we do need to celebrate our victories, and what change this temporary reprieve will bring to so many members of the community. However, I am also frankly terrified for those that it would not help, and what would happen in the absence of permanent changes.
I am making a quick reference checklist here for myself, family members and friends, similar to the one I made for the Senate immigration bill two years ago as a community advocate. These are simply my initial mental impressions of the various memos released by the DHS yesterday and available here. They are in no particular order:
- Expansion of DACA – The DHS will remove the upper level age cap on DACA so people who were above the age of 31 as of June 15, 2012 will not miss out. The date of entry was moved to January 1, 2010 from June 15, 2007, which means thousands more people who are newer arrivals would benefit. DACA will also be made into a temporary reprieve of 3 years, and the changes rolled out in 3 months.
- The New DAPA program – The DHS is tasked with creating a separate deferred action program for parents of U.S. citizen sons/daughters or LPR sons/daughters born before November 21, 2014. Parents must have resided in the U.S. since at least January 1, 2010, physically present in the U.S. on the day of announcement and have no lawful status, passed background checks, and are otherwise not ineligible (i.e. not an enforcement priority according to the new Johnson memo).
- The provisional stateside waiver (I-601A) will be extended to all family members eligible, which will now include adult sons and daughters, and spouses of LPRs. The provisional waiver is for the 3/10 year bar for unlawful entry, and requires an individual to prove “extreme hardship” to their U.S. citizen family member if they are deported. Usually, individuals who are trying to adjust their status in the U.S. but entered the country unlawfully, need to travel abroad to their home country for approval of a waiver. In 2012, the Administration started accepting “extreme hardship” waivers without requiring immediate relatives of U.S. citizens to leave and wait outside. Now this benefit is also available to the children and spouses of lawful permanent residents. This provision will require rule-making, so it will take some time to roll this out. The DHS will also engage in rule-making to expand the “extreme hardship” definition.
- Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
- Expansion of parole-in-place to immediate relatives of those U.S. citizens and lawful permanent residents who “seek to enlist” in the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or the Reserve of any of the five Armed Services). This benefit means that not only would the family members of those who seek to enlist not be subject deported–they may also be eligible to adjust their status in the future.
- Clarification of travel on advance parole by DHS so that people on DAP, DACA can travel abroad, and return to adjust their status in the U.S.
- Department of Labor (DOL) reforms: DOL will start issuing U visa certifications in three key areas: extortion, forced labor, and fraud in foreign labor contracting, and certify applications for trafficking victims seeking T visas. According to DOL, “These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.”
- Reforms to the employment-based immigration system such as extension of OPT for STEM graduates, defining “specialized knowledge” for L-1B intracompany transferees, increasing H-1B portability by having USCIS define “same or similar” jobs, expanding the use of the “national interest waiver” and starting a new parole program to bring talented entrepreneurs to the U.S.
- Elimination of Secure Communities with a new program that targets immigrant communities: DHS is replacing the current “Secure Communities” program with a new “Priority Enforcement Program” to remove individuals convicted of criminal offenses. While it could be a marked improvement that moves us from a pre-conviction to post-conviction model and uses notification instead of detainers, unfortunately, this continues the entanglement of local law enforcement with immigration enforcement.
- Exclusions for parents of DACA recipients, undocumented workers and farm workers without families, and LGBT individuals less likely to have family members in the U.S. – While these exclusions are not categorical, and some parents of DACA recipients who also have U.S. citizen/LPR children would continue to benefit, the President’s immigration action does not specifically benefit those who do not have immediate family ties to the U.S. but are nonetheless, members of our community. It is also unclear at this point whether parents with final orders or re-entries after deportation would be eligible for the program. At this point it appears that they would be eligible since they are not priorities under the new memo.
- Visa backlogs – The announcement punts on the question of family visa backlogs that affect so many of us. However, there will be Presidential Memorandum to create an interagency group to look at “visa modernization” which has 120 days to prepare recommendations for further action.
- Limited expansion of DACA: It is great to see an expansion of DACA and elimination of the age-cap. It would have been nice to see public benefits such as ACA (healthcare) given to DACA recipients, as well as increasing the age of entry to 18 from 16 years.
- Employment-based immigration: DHS expects to finalize regulation on H4 visa holders soon but the rule will not be expanded to all H4 visa holders
- New enforcement priorities that continue to target immigrant communities: The President is rescinding past memos such as the Morton Memo, and issuing a new one, effective January 5, 2015. The new priorities are troubling and continue to criminalize immigrant and border communities, pitting good immigrants against bad immigrants, and separating families. I have listed the priorities below, and some initial thoughts on each:
Priority 1: Non-citizens convicted of aggravated felonies, suspected terrorists, convicted gang members, people apprehended at the border while unlawfully entering the U.S., will be a priority for removal unless they qualify for asylum or another immigration benefit.
Most troubling here is the use of language such as “suspected terrorists” without built in civil rights protections that discourage racial profiling. Additionally, people apprehended at the border will now be a top priority, even though many are coming to reunite with family. The prioritization of people with gang-related membership (without conviction) is very troubling, as law enforcement targets specific racial/ethnic groups as gang-affiliated.
Priority 2: Non-citizens convicted of three or more misdemeanor offenses, non-citizens convicted of significant misdemeanors (including DUI), non-citizens apprehended who entered after January 1, 2014; non-citizens who are perceived to abuse the visa waiver program should be a priority of removal unless they qualify for asylum or another immigration benefit.
Significant misdemeanors – a new legal fiction created by DACA – is here to stay, even though it has no legal foundation. The prioritization of people with a DUI, and their exclusion from DACA, is incredibly troubling, as is the prioritization of people who overstay their visas under the visa waiver program. Many of these people are immediate relatives of U.S. citizens and have much to contribute to the U.S.
Priority 3: Non-citizens issued final orders of removal after January 1, 2014 should generally be a priority for removal unless they qualify for asylum, or another immigration benefit.
Immigrants who dared to come to the U.S. in 2014 will now be subject to draconian enforcement.
- Increased border enforcement – DHS plans to fund an additional 20,000 CBP agents, and continue to trend towards further border militarization of the Southern border we share with Mexico.
- Ramped up interior enforcement through existing programs such as the Criminal Alien Removal (CARI) Program, which profiles Latinos for detention and deportation, and ICE raids, which will continue under these new announcements, despite right-wing talking points.
- Due process concerns: Expedited deportations and Operation Streamline will continue.
- No reforms to the existing detention system: Family detention will continue as the DHS opens a brand new center in Dilley, Texas, and arriving asylum seekers at the border will continue to be detained.
Finally, I just want to say that this is a deeply personal issue for me. I want to send some love and light to everyone who has worked hard for this announcement and emotionally drained from yesterday, and left out or have family members who are left out. I had a cab-driver yesterday, who unexpectedly started telling me about his son, and trying to figure out how to bring him here, just as I was getting out of the cab. I wish I had the time and opportunity to help him, and I hope he reunites with his son soon. We all deserve justice; we all deserve to be able to reunite with our families; and we most certainly deserve to be able to go home to safety–wherever that is.
If anyone has further thoughts, questions and concerns, feel free to comment or contact me.