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USCIS Must Accept NEW DACA and ADVANCE PAROLE Cases

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses some very exciting news for first time DACA applicants. Pursuant to a recent court order, a federal judge has ruled that the government must restore the DACA program to its pre-September 2017 status, meaning that USCIS must accept new applications from first time DACA applicants and advance parole requests. Stay tuned for more information on this topic.


Overview


On July 17, 2020 a federal judge in the state of Maryland issued a ruling that requires the government to restore the DACA program to its pre-September 2017 status. This means that USCIS must continue the DACA program as it was before it was rescinded by the Trump administration on September 5, 2017, when applications for DACA were being accepted by first time applicants.

Before this decision, on June 18th the Supreme Court of the United States issued a ruling on DACA finding that, although the government’s rescission of DACA violated the Administrative Procedure Act, the government could lawfully rescind DACA so long as the government follows the procedures required by the APA. In effect, the Supreme Court’s decision left open the possibility for DACA to be rescinded by the Trump administration. The Supreme Court emphasized that it would not decide whether DACA or its rescission are “sound policies.”

After its ruling, the Supreme Court sent the case back to the lower courts, where the Maryland judge ultimately decided in favor of reinstating the DACA program.


What are the requirements to apply for DACA?


You may request DACA as a first-time applicant if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Should I apply for DACA now?


Yes. Those who are eligible should apply for DACA as soon as possible, given that the future of DACA remains uncertain. However, it is strongly recommended for applicants to speak to an attorney or accredited representative before applying for DACA for the first time and/or applying for advance parole to make sure no complications will arise. Applicants may need to consider several important factors before applying including: 1) the possibility that the Trump administration may issue a new memorandum rescinding DACA before the applicant receives a decision; 2) that – in the absence of guidance – USCIS officers will reject new, initial applications or accept them and deny them; and 3) that USCIS is experiencing significant delays in processing as well as a budget shortfall that may further delay adjudications.


What is advance parole?


Advance parole is a travel permission request that allows aliens to return to the United States after temporary foreign travel. Advance parole may be requested by filing Form I-131 Application for Travel Document. Upon re-entering the United States, applicants receive an I-94 arrival/departure record that serves as evidence of their legal entry. With this important document, DACA holders have the opportunity to legalize their status without having to leave the United States, of course provided the DACA holder has been petitioned by a qualifying relative such as a U.S. Citizen spouse, child aged 21 years or older, or parent. There are some risks, however. Re-entry to the United States is not guaranteed. It is up to the officer’s discretion whether to admit someone with an advance parole document. We encourage applicants to first speak with an experienced attorney before applying for advance parole. Before the DACA program was rescinded, advance parole was available for DACA applicants.


Where can I find more information about applying for DACA?


We have prepared a helpful guide for first time DACA applicants explaining the impact of the Maryland decision and many of your frequently asked questions. You can access the guide here.


Ready to Apply for DACA? If you would like to schedule a consultation, please text or call 619-569-1768.


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