On August 21, 2020, the United States Citizenship and Immigration Services (USCIS) issued implementation plans for several new policies stemming from Acting Secretary of Homeland Security Chad Wolf’s July 28 memo for the Department of Homeland Security (DHS). USCIS Deputy Director of Policy Joseph Edlow explains how USCIS will implement these guidelines in ways that are within the agency’s purview and power in the August 21 memo.
Per the August 21 memo, USCIS will reject all initial DACA requests and associated applications for employment authorization documents (EADs) and return all associated fees. Applicants will still be able to apply again in the future if DHS determines to accept new initial requests. This applies only to the aliens who have never received a grant of DACA.
USCIS will still adjudicate all pending and future DACA renewal requests. If you ever received a grant of DACA in the past, you are eligible to renew your DACA. Even if your DACA was previously terminated, you would be able to apply although your request would be classified as “initial” based on past USCIS policies.
However, USCIS is implementing changes to DACA processing that the July 28 memo requested. For instance, USCIS will now generally reject DACA renewal requests received more than 150 days in advance to the expiration of the recipient’s current DACA period. The memo states that this measure is meant to increase efficiency, and that there shouldn’t be delays as data from 2019-2020 shows that 96% of DACA renewal requests were completed within 120 days. Still, USCIS has the discretion to accept a renewal request submitted 150 days or more before the expiration if there are reasons for doing so.
Any DACA grant issued after July 28, 2020 is now limited to a one-year period. This change will increase fees for DACA recipients, as they will need to pay for renewal more frequently than in the past.
The July 28 memo instituted a rule that advance parole should only be available under “exceptional circumstances.” In the August 21 memo, USCIS states that it believes the most efficient and fair way for it to implement this policy is to reject and return the feels for all Form I-131 applications received at the DACA specific filing location that have been held since July 24, 2020. DACA recipients who receive this rejection notice will also be informed that they may re-apply for advance parole consistent with the July 28 memo and further instructions that will be announced on the USCIS website.
USCIS currently lists four examples on its website that could warrant advance parole approval: traveling to support the national security interests of the United States; traveling to support U.S. federal law enforcement interests; traveling to obtain life-sustaining medical treatment that is not otherwise available; or traveling to support the immediate safety, wellbeing or care of an immediate relative (particularly minor children of the alien). USCIS adds that this is a non-exhaustive list, meaning other circumstances may justify advance parole.
The August 21 memo further adds that any grants of advance parole should be made on a case-by-case basis, be consistent with the statutory description of parole under Section 212(d)(5) of the Immigration and Nationality Act (INA), and be based on a full consideration of all the discretionary factors present in the application. Section 212(d)(5) of the INA mandates that parole for an alien must be for urgent humanitarian reasons or significant public benefit. The memo adds that USCIS will consider all discretionary factors presented in the application, but this appears to be a high bar to meet under this administration. Those seeking advance parole may be best suited to include any and all factors that could be viewed in their favor under this rigorous standard.
If you have more questions on how these new implementation guidelines may impact your DACA case, be sure to consult with an immigration attorney.
This information is intended to educate and should not be taken as legal advice.
Written by Francis Law Center Staff Alex Gelhar