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What You Really Need to Know About the Rescission of DACA

On September 5, 2017, Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals (DACA) program is being rescinded.  The Department of Homeland Security personnel will take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in Tuesday’s Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA) (hereinafter, “Memo”).

On September 6, 2017, fifteen states and the District of Columbia filed a suit in the United States District Court for the Eastern District of New York seeking to stop the rescission.  During his candidacy for president, Donald Trump said that he intended to end DACA on “day one” of his presidency.

What Is DACA?

On June 15, 2012, under the Obama Administration, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.

According to one White House official, Trump’s decision includes a six-month delay that would give Congress a window in which it could step in before the protections expire.  Lawmakers on both sides of the aisle have called on the president not to end the program, with Speaker Paul Ryan (R-Wis.) saying he believes it’s something “Congress has to fix.”

Approximately 800,000 such young people (referred to as “Dreamers” under the DREAM Act) were enrolled in the program as of 2017.

Eligibility Requirements: To be eligible for DACA relief, illegal immigrants must have entered the United States before their 16th birthday and prior to June 2007, be currently in school, a high school graduate or be honorably discharged from the military, be under the age of 31 as of June 15, 2012, and not have been convicted of a felony, significant misdemeanor or three other misdemeanors, or otherwise pose a threat to national security. The program does not provide lawful status or a path to citizenship, nor does it provide eligibility for federal welfare or student aid.

How Will DACA Be Affected?

  1. USCIS is no longer accepting initial requests for DACA, but we will adjudicate initial requests for DACA accepted by Sept. 5, 2017.

  2. If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017.

  3. If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension and your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.

  4. If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed.

  5. If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the document expires. However, even with a valid travel document, CBP can still refuse to let you into the United States. Before you travel, speak to a qualified immigration lawyer.

  6. USCIS will no longer process or approve applications for advance parole for DACA recipients. If you have an application for DACA-based advance parole pending as of September 5, 2017, USCIS will close the application and return the filing fees to you.

  7. Even with valid DACA and a valid work permit, the government can terminate your DACA and work permit at any time if it believes you are no longer eligible or for any other reason.

What Was the Reason for this Change?

According to the Memo, prior to the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide. The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.

On June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.

Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, Sessions determined that it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of her authority in establishing national immigration policies and priorities, DHS Acting Secretary Elaine C. Duke rescinded the June 15, 2012 memorandum.

In addition, there have been claims of rampant fraud.  According to Matt O’Brien, an attorney, and until last year, a manager in the investigative unit of the U.S. Citizenship and Immigration Service (USCIS), “as many as half of the approximately 800,000 people who now have work permits under DACA may have lied on their applications to get approved.” Some of this was evident by the fact that someone applying for DACA would have several adult children, making it virtually impossible for the person to have been 30 or under in 2012.  In other cases, he said, it appeared that documents were forged, or that non-existent schools were listed.

Based on what O’Brien had seen and what he discussed with his colleagues, “the fraud rate is 40 to 50 percent. It’s possible that it was higher.” O’Brien said that the vast majority of the 800,000 illegal immigrants now in DACA have never been interviewed by any representative of the U.S. government, either in person on over the phone.

When reached by LifeZette on Thursday morning, a spokesman for USCIS confirmed this, saying “generally” DACA applicants are not interviewed.

What’s Next?

The 6-month delay in ending DACA is an opportunity for Congress to put a program into law that will achieve similar outcomes to DACA.  There are several bi-partisan legislative proposals, including the Dream Act.  The first version of the Dream Act was introduced in 2001 and over the last 16 years, numerous versions of the Dream Act have been introduced, all of which would have provided a pathway to legal status for undocumented youth who came to this country as children. Some versions have garnered as many as 48 co-sponsors in the Senate and 152 in the House.  The Senate Version of the Dream Act, introduced in July 2017, allows current, former, and future undocumented high-school graduates and GED recipients a three-step pathway to U.S. citizenship through college, work, or the armed services.

In the House of Representatives, members have also introduced legislative proposals that are variations on the original Dream Act, one that was more restrictive and another proposal that was a more generous path to legalization.  Another proposal would not give permanent legal status to Dreamers, but provide deferred action from deportation for only three years.

Given the divisive nature of immigration within the GOP, if a law legalizing DACA is passed, it is likely to be attached to a broader bill for increased border security measures.

While the future for the Dreamers is uncertain, there is broad bipartisan support in Congress to protect people in this category.  Most likely, any legislative solution will include a path to work authorization and deferred action from deportation.  Moreover, there is broad support among the electorate in the U.S. to find a way for these individuals to stay in the U.S. without fear of deportation.  If Congress does not pass a law, there is a possibility that the President may extend DACA, or at least find a way to prevent deportation of this group of undocumented youth.

What Should You Do Now?

If you are an individual affected by the termination of DACA, we recommend that you talk to an immigration lawyer as soon as possible.  You may be eligible for another type of status.  In fact, members of the American Immigration Lawyers Association (AILA) report that up to 30% of people screened for DACA were eligible for something better and more permanent.  Be aware of any scams or notaries that promise legal status or work authorization.  New DACA applications are no longer being accepted by USCIS.  For many people who entered the US without inspection, an I-601 waiver may be required before adjusting status.

If you have any questions about your status and how the end of DACA may affect you, contact The Grady Firm’s attorneys by scheduling a complimentary 15-minute consultation; call +1 (323) 450-9010; or fill out a Contact Request Form.

About The Grady Firm, P.C.

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The Grady Firm, P.C. attorneys help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas, as well as Green Cards and citizenship based on family relationships, investment, or employment.  We also assist with I-601 unlawful presence waivers. In addition, The Grady Firm attorneys help foreign entrepreneurs establish a U.S. presence, form a corporate entity, and obtain the appropriate visas for their owners and employees.

To schedule a complimentary 15-minute consultation with our immigration attorneys, call +1 (949) 798-6298, or schedule an appointment online.

*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.


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