If this sounds familiar, it is because this happened before. And then USCIS decided they were going to ignore the courts and not accept new applications or Advance Parole, and DACA renewals and work authorization was only going to be good for a year, instead of two years. Many immigrants whose hopes were up, were then disappointed.
Is that going to happen again? We are in a different place today than we were in July.
What Is DACA?
DACA stands for Deferred Action for Childhood Arrivals and it was signed into law as an executive order by President Obama. The 2012 program was open to undocumented immigrants who came to the country before they were 16 and who were 30 or younger as of June 2012. They also had to be students, have a GED, or high school diploma, and not have a criminal record. Later on, we’ll elaborate on the requirements for DACA.
There were two parts to it: one for DREAMers and one for their parents. DREAMers refer to children who are impacted by the Development, Relief, and Education for Alien Minors (DREAM) Act.
Remember, DACA does not give people with undocumented status a legal status. It only says that their deportation will be deferred. A Texas court struck down the section about the parents of DREAMers but the sections for the people who came as children remained.
When President Trump came into office, he said he would come up with a way for DREAMers to get legal status. He has yet to do that and with a little over a month left in office, it is unlikely he will. He did try to get rid of DACA by having the Department of Homeland Security (DHS) stop accepting new applications and look at “phasing it out.”
There were lawsuits filed immediately and it eventually went to the Supreme Court. In June, they issued their decision which said that the Trump Administration could not end DACA the way they did because it had not followed the Administrative Procedures Act.
Everyone was elated. But the Supreme Court sent the case back to the Federal Court for final orders.
While the Judge was reviewing the law and decision, USCIS issued a memo saying that they disagreed with the Supreme Court decision and that they would not be accepting DACA applications from new applicants. They also said they would renew DACA for current holders but the renewal would only be good for a year. Also, the work permit that is issued would only be good for a year. Both of these were good for two years before this.
Since Trump started his war on immigration there have been MANY lawsuits filed against him. But since March, judges throughout the country have been saying the leaders of DHS and USCIS were put into their positions inappropriately. So, anything that has been written into policy since these leaders started is invalid.
What does that mean for DACA?
That means that USCIS could not refuse to take new applications for DACA in July 2020. USCIS could not change the period from one year to two.
And on Friday, Judge Garaufis said that USCIS must post a public notice within three calendar days that new DACA applications can be submitted and they will be accepted. Work authorization and DACA approvals will be for two years. He also said that they must accept Advance Parole applications from DACA holders.
Why is this last part so important? It was covered in a video previously but, briefly, if you apply for Advance Parole it allows you to leave the US and then enter legally, which may be a route to obtaining legal status. If, for example, you marry a US citizen who files for you or you have a child over 21 years old who’s a US citizen, they can apply for you and you can legally get your green card, gaining permanent resident status.
Yes, this is great news. But we already had the great news back in June and US Immigration defied the Supreme Court with no consequences so far. So, what do we recommend for people who want DACA, or hold DACA and want Advance Parole?
File. Start the application process ASAP. It is highly unlikely that your application would be processed in the time it will take to get a new president, but submitting now will get you in line.
Remember that President-Elect Biden was vice president during the Obama administration. He has said that he will not eliminate DACA. He has already said he will reinstate DACA and will try to put a plan in place for providing legal status to 11 million people in the US without legal status.
Our office fully expects to be EXTRA BUSY with applications for clients with this new administration.
Several people ask about DACA requirements. Very quickly, to be eligible for DACA, you must:
- You had to have entered the US before you were 16 years old, as proven by travel records, school records, or medical certificates, or other documentation.
- You must be under 31 years old or younger on June 15, 2012 (that means you were born on or after Jun 22, 1981), as proven in your birth certificate (which needs to be translated into English and certified)
- You must have lived in the US continuously from June 15, 2007, until now. You can show proof of staying in the U.S. using your tax returns, photos, school records, medical records, letters from friends and family (with legal status in the US)
- You must have been physically inside the US on June 15, 2012, AND you didn’t have legal status on that date.
- You must be in school, have graduated from HS, have your GED, or about to get your GED. If you’re still in school, you can provide your school transcript and the target date of graduation. If you never went to school in the US or you didn’t graduate from high school, you can register for either a class to learn English as a prerequisite to completing GED or by enrolling directly in a GED program.
- Eligibility is affected by criminal history. You can’t have committed any serious crimes or 3 or more misdemeanors. If you were arrested for any reason, you need to discuss your situation with a qualified immigration lawyer before filing for DACA. An arrest does not automatically mean you are ineligible. If you were convicted of a serious crime or have one pending, you should not apply until the case is resolved. Those convicted of crimes may only apply by filing a post-conviction relief motion and changing the conviction.
Andres Mejer is an immigration attorney in New Jersey with clients all over the US. He came to the US as a child and his family was the victim of immigration fraud. His goal is to help people so they don’t have the same stress and frustration with their immigration dreams. If you’re struggling to get the status you want, call us. We’ve often been able to help clients who were referred by other attorneys – when the other attorneys said they couldn’t do anything more. We are advising you to get the process going today to get your legal status. If you put it off, you will be waiting even longer. Contact us today through Andres Mejer Law or call us at 888-421-9942.