Today, September 5, 2017, the Trump administration announced it is rescinding the Deferred Action For Childhood Arrivals (DACA) Program. DACA will begin to be phased out on March 5, 2018. DACA recipients should meet with an experienced immigration attorney to discuss their options as soon as possible. Permanent residence through employment may be the best option for many DACA recipients. Today’s announcement brought on many questions. Answers to the most common frequently asked questions (FAQs), with examples, are found below:
What is going to happen to me if I am a current DACA holder?
You will retain your period of deferred action and your employment authorization document (EAD) until it expires. Your work permit will not be canceled early. To determine when your DACA and work permit expires, look at your I-765 Approval Notice, I-821D (DACA), and the bottom of your Employment Authorization Document (EAD).
Example: Anna is a current DACA holder. Her employment authorization document expires on April 17, 2018. Therefore, she is able to continue working until April 17, 2018.
What happens if my DACA work permit expires between September 5, 2017 and March 5, 2018?
You are eligible to renew your work permit, but you must file a renewal application by October 5, 2017.
Example: Sam’s work permit expires on November 1, 2017. He is eligible to renew his work permit, but he must do so before October 5, 2017.
What happens if my work permit expires on March 5, 2018?
You cannot renew your work permit.
Example: Emma’s work permit expires on March 5, 2018. She wants to renew her work permit. Unfortunately, she is not able to do so.
I filed my DACA renewal application some time ago and it is still pending review with USCIS. What happens to my application?
Your pending DACA renewal will be adjudicated and you should receive a two-year card.
Example: Daniela has already applied to renew her DACA and is waiting to hear back. She will be able to have her DACA renewed and will receive a work permit that is valid for two years.
I have never applied for DACA before but would like to do it now. Can I submit a first-time DACA application?
No, unfortunately first-time applications will no longer be accepted.
Example: Jorge meets the DACA requirements. However, he has never submitted a DACA application before. He cannot apply for DACA.
Can I still travel outside of the United States while my DACA is valid?
New applications for advanced parole will no longer be approved. If you already had an advanced parole application approved, you will generally retain the benefit until it expires. But, you should make sure to consult with an experienced immigration attorney before traveling outside of the United States.
Example: Miguel submitted an advanced parole application. It was approved. He plans to go to visit his family in Peru. However, he is going to meet with his immigration attorney beforehand discuss if this is a good idea and what the possible consequences could be.
I submitted my advanced parole application some time ago and it is still pending review with USCIS. What is going to happen to it?
Your pending advanced parole application will be closed and the Department of Homeland Security (DHS) will refund your application filing fees.
Example: Denise already applied for advanced parole. She paid money in order to submit her application. Her application was never approved. It is now closed, and the Department of Homeland Security will give Denise her money back.
What happens if my work permit is lost, stolen, or destroyed during the DACA phase out?
You may request a replacement work permit by filing a new Form I-765 if your lost, stolen, or destroyed work permit is still valid.
Example: Tom’s work permit is valid until September 1, 2018. Tom’s work permit is stolen on March 6, 2018. He may request a replacement work permit by filing a new From I-765.
What will my immigration status be after my DACA expires?
You will not have a lawful status, and you will start (or re-start) accruing unlawful presence in the United States. The memorandum issued today did not mention unlawful presence explicitly, but there is some important background information you should understand. If you accrue more than 180 but less than 365 days of unlawful presence and leave the United States, you will not be able to enter the United States for three years. This is the three-year bar. If you accrue more than one year of unlawful presence and leave the United States, you will not be able to come back to the United States for ten years. This is the ten-year bar.
Examples: Juan accrued 200 days of unlawful presence in the United States. He then went to visit his family in Mexico. When he tried to return to the United States, he was told that he would not able to return to the United states for three years because of the three-year bar.
Maria accrued 366 days of unlawful presence in the United States. She then went on a road trip and crossed into Canada. When she tried to return to the United States, she was told that she could not return to the United States for another ten years because of the ten-year bar.
What is unlawful presence and why is it important?
Unlawful presence is a very important concept and it is highly relevant to your permanent resident options that you will discuss when you meet with your experienced immigration attorney.
Example: Jose has accrued 181 days of unlawful presence. He will need to disclose this when he meets with his immigration attorney. This unlawful presence period will be critical in evaluating his best options for permanent residence.
Is the Trump administration planning to deport everyone with DACA?
The Trump administration said today that DACA recipients will only be placed in removal proceedings directly by the USCIS if they are a risk to national security. However, ICE, the enforcement agency, is not prevented from seeking to deport former DACA recipients now that the Trump administration has classified all undocumented people as priorities for deportation.
Answers to other common FAQs may be found here.
Additionally, the memorandum on the rescission of DACA may be found here.