09/06/2017 - Responding to the Rescission of Deferred Action for Childhood Arrivals (“DACA”)

As of yesterday, the White House announced that it would be rescinding the DACA program.  We are sure that you have come across a lot of information in the news and on the internet.  Let us try to answer some of the more common questions raised.
What were the previous guidelines for granting DACA?
DACA was a program instituted by President Obama via Executive Order in June 2012.  Individuals who met the following criteria were eligible for DACA, which essentially meant that, while the government had the legal basis for deporting individuals who had no valid permission to remain in the United States, the government would not do so for the time being, i.e., they would “defer the action.”  In the meantime, DACA individuals would be eligible to apply for employment authorization and travel permission.
Criteria included the following:
  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching 16th birthday;
  • Continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of applying for DACA with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (“GED”) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
What happens to those who have DACA benefits?
Those who have valid DACA benefits, such as employment authorization and travel permission can continue to keep these benefits and use them until the expiration dates.  If the actual documentation is lost, individuals can apply for new ones, but only with the same validity dates. USCIS has cautioned however that those with travel permission will be subject to the discretion of the officers at the border to determine the admissibility of the individuals when they return.  That is, it is impossible that the travel permission will not be honored.
Clark Lau LLC advises that you check with your attorneys before making any travel plans.
Can anyone still file for or seek an extension of such benefits?
Applications for initial DACA benefits, including employment authorization documents, received by USCIS by yesterday September 5, 2017 will be adjudicated on a case-by-case basis.  Pending applications for travel permission however will not be processed; any fees filed will be refunded.
Pending applications for renewal of DACA benefits received as of September 5, 2017 and applications for renewals filed by October 5, 2017 where individuals have benefits expiring between September 5, 2017 and March 5, 2018 will be adjudicated on a case-by-case basis.
What happens next?
  • Validity of DACA Benefits?  Please note that DACA is not a grant of legal immigration status for individuals; it is only a deferral of the government’s action against them.  The government continues to exercise its discretion as to whether or not to defer the removal of individuals.  Additionally, those with the limited employment authorization and travel permission benefits will no longer have these benefits once the documents expire.
  • Congressional Action?  The White House has tasked Congress to take legislative action; we will monitor what Congress does.
  • Lawsuits?  Already, the Attorney Generals from a number of states have filed a lawsuit against the President to have the courts stop the rescission of DACA.
  • Credibility of Information?  There will be many questions raised by the sudden change in policy.  As a result, it is very important that you consult competent legal counsel regarding your circumstances and what should be done.  As with all information, please also check the validity of any information and the reputation of the source of the information you obtain.
Please note that the above information has been provided by Clark Lau LLC for educational purposes only.  Please consult your Clark Lau LLC attorney to determine how these changes may or may not impact your circumstances. 

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