FAQs: Updated Guidance for Deferred Action for Childhood Arrivals (DACA) Recipients

These FAQs provide information and recommendations concerning the Deferred Action for Childhood Arrivals (DACA) program and proposed legislation to protect Dreamers including those with DACA. The information in this based on what we know today. We will continue to update it with more information once we have it.

Please note that the information in this FAQ is not legal advice. Every person’s situation is different, and you should talk to a qualified immigration lawyer or a Board of Immigration Appeals (BIA)–accredited representative so that you can make the most informed decision for yourself.

Have FAQ suggestions? Email us via info@informedimmigrant.com

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Though President Trump has not moved to end the DACA program, two severe threats to the program have arisen in the past month, placing the program and the nearly 800,000 young people enrolled in it under threat.

First, the Supreme Court is considering hearing a case called ADAC v. Brewer. The ADAC v. Brewer case was first brought to court years ago when the Arizona Dream Act Coalition, along with individual DACA recipients in Arizona, sued then-Governor Jan Brewer and the Arizona Department of Transportation.

Why did they sue? These organizations and individuals believed that then-Governor Brewer’s executive order and related policies banning DACA recipients from receiving Arizona driver’s licenses violated DACA recipient’s constitutional right to equal protection under the law, as well as the principles of federal supremacy in the area of immigration law. Federal supremacy in immigration law means that federal laws or programs, like DACA, trump state’s own laws if they are in contrast with the federal government’s.

Now, five years later, the case has made its way to the Supreme Court because the state of Arizona appealed a decision issued by the 9th Circuit Court of Appeals. In Arizona’s petition to the Supreme Court asking the Court to hear the case, they question the constitutionality of the DACA program. If the Supreme Court takes the case, it could possibly find constitutional problems with DACA and force the program to end. However, it is also possible that the Court would rule in ADAC’s favor, allowing DACA recipients in Arizona to keep their driver’s licenses and reaffirming in the highest court of the land that DACA is constitutional.

Second, in June of 2017 ten Republican State Attorneys General threatened to sue President Trump if he does not end the DACA program by September 5th, 2017. This does not mean DACA will be canceled on that date. The 10 states would pursue this lawsuit by changing an existing case against DAPA (Deferred Action for Parents of American and Lawful Permanent Residents) called Texas v. US in a Brownsville District Court.  In the past, the President has expressed his support for Dreamers. However, if the President ends DACA, or if these 10 states sue and a district court puts an injunction on the program, DACA recipients may lose their work authorization and be placed at risk for deportation.
Given that the DACA program has an uncertain future, it is important to prepare, save money in case this happens, and read additional resources on Informed Immigrant about tangible steps DACA recipients can take.

The Supreme Court will sometimes ask the Solicitor General what they think about an issue of federal law in a case in which the government is not a party. This process is known as calling for the views of the Solicitor General – “CVSG” for short – and requires the federal government to prepare an amicus curiae (friend-of-the-court) brief giving the government’s view.  The Court generally issues such an order more than 10 times a Term.

The Supreme Court relies on the Solicitor General for an honest assessment of whether a question of federal law or of constitutional rights merits the Court’s attention. When the Solicitor General suggests that the Court deny review in a particular case, the Court relies heavily on this recommendation – assuming that it means that the case is insufficiently important or meritorious, rather than that it simply is contrary to the views of the government.  

In the ADAC v. Brewer case, the Supreme Court is waiting for Solicitor General Jeff Wall to submit his views of the case, at which point the Court will hold a meeting to decide whether to grant Arizona’s petition and hear the case or not.

There are bipartisan efforts in Congress to protect Dreamers. On July 20th, 2017, Senators Dick Durbin (D-IL), Lindsey Graham (R-SC), Jeff Flake (R-AZ) and Chuck Schumer (D-NY) introduced the Dream Act of 2017. The Dream Act would allow a select number of young immigrants to earn lawful permanent residence and eventually American citizenship if they meet certain requirements:

  • Are longtime residents who came to the U.S. before age 18;
  • Graduate from high school or obtain a GED;
  • Pursue higher education, work lawfully for at least 3 years, or serve in the military;
  • Pass security and law enforcement background checks and pay a reasonable application fee;
  • Demonstrate proficiency in the English language and a knowledge of United States history; and
  • Have not committed a felony or other serious crimes and do not pose a threat to our country.

The Dream Act must be passed by both the House and the Senate, and signed by the President, before it becomes law.

There are also efforts in the House to pass legislation to protect Dreamers. Three pieces of legislation have been introduced:

  • The Recognizing America’s Children (RAC) Act: introduced by Representative Carlos Curbelo (R-FL) and has several Republican co-sponsors. You can read the bill here. The bill provides immigrants that have been vetted by The Department of Homeland Security with three pathways toward legalization: higher education, service in the armed forces, or work authorization. Following a 5-year conditional status, these immigrants would be able to re-apply for a 5-year permanent status.
  • The DREAM Act of 2017: introduced by Representatives Lucille Roybal-Allard (D-CA) and Ileana Ros-Lehtinen (R-FL). This bill is a mirror of the Senate Dream Act and eligibility requirements are the same. Those are:
    • Are longtime residents who came to the U.S. before age 18;
    • Graduate from high school or obtain a GED;
    • Pursue higher education, work lawfully for at least 3 years, or serve in the military;
    • Pass security and law enforcement background checks and pay a reasonable application fee;
    • Demonstrate proficiency in the English language and a knowledge of United States history; and
    • Have not committed a felony or other serious crimes and do not pose a threat to our country.
  • The American Hope Act: introduced by Representatives Zoe Lofgren (D-CA), Luis Gutierrez (D-IL) and 116 additional House Democrats. You can read the bill here. It would provide the following:
    • Allow DACA beneficiaries and other DREAMers to apply for Conditional Permanent Resident (CPR) status
    • Allow those granted CPR status to obtain Legal Permanent Resident (LPR) status (i.e., a “green card”) after 3 years if they stay out of trouble. Time spent with DACA would count toward the required 3 years with CPR status.
    • Provide a 5-year path to U.S. citizenship. Time spent in CPR status would count toward the general 5-year period needed for permanent residents to become eligible for U.S. citizenship.
    • Allow minors to apply for CPR status through a legal guardian or counsel.
    • Improve college affordability for undocumented youth and other immigrants by repealing rules that limit their access to in-state tuition and college loans.
    • Treat all DREAMers brought to the United States as young children the same, regardless of educational level, military service, or work history.

None of these pieces of legislation have been passed out of the Senate or the House, so they remain possibilities, not active laws.

Given the program’s uncertain future, we highly recommend that you consult with an immigration attorney or a Board of Immigration Appeals (BIA)–accredited representative before you decide whether to apply. The immigration attorney or BIA-accredited representative will be able to give you an individualized assessment of the benefits and risks of applying.

If you decide to apply, we recommend that you ask your immigration attorney or BIA-accredited representative to complete and sign a Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) and submit it with your application. That way they will be notified of any actions on your case and be prepared to assist you should the DACA program end.

Whether or not you may be eligible for DACA, additional options for relief may be available to you now or in the future. It is important that you prepare your personal materials in case such an opportunity becomes available and consult with an attorney or BIA Accredited Representative about your options. These include: records of your presence in the U.S. for every year you’ve lived here; medical records; immigration records; and other materials. You can review ILRC’s family preparedness plan here for additional materials to prepare.

Yes, if you are already enrolled in the DACA program, you should apply to renew your DACA as soon as you are eligible (120 to 180 days ahead of your work permit expiration date).

If you already have DACA and are considering whether to apply to renew it, immigration authorities already have the information on your original application, so there is less risk in submitting the renewal application than in submitting a first-time application. Because we don’t know what might happen to DACA under the Trump administration, we recommend that you consult with an immigration attorney or a Board of Immigration Appeals–accredited representative before submitting a renewal application.

It usually takes USCIS about 120 days to process a DACA renewal application. However, some renewals have been processed in less time, some even within a month of the time they were submitted.

It’s possible that the DACA program could be terminated before USCIS is able to review and approve your renewal application, and we don’t know what USCIS will do about pending renewal applications. It’s possible not only that your application will not be approved, but that you may lose the $495 application fee.

We don’t yet know how the Trump administration, if it terminates the DACA program, will treat DACA and work permits that have already been issued and have not yet expired. It may decide either to revoke all DACA recipients’ DACA and work permits immediately, or it may allow people to keep their DACA and work permits until they expire, but just not renew them.

There are scenarios under which submitting your renewal application now may have positive results. For example, if the DACA program is not terminated before your renewal application is approved, the following possibilities would still exist:

  • The Trump administration may decide not to terminate the DACA program. You would then have work authorization and be protected from deportation for an additional two years.
  • The DACA program may be terminated, but people who already have DACA may still have work authorization and be protected from deportation until their DACA and work permit expire. Under this possibility, you would have work authorization and be protected from deportation for an additional two years.
  • The Trump administration may decide to stop accepting first-time applications for DACA but continue to allow people who already have DACA to renew it. Under this possibility, it may be that only people who have a valid, unexpired work permit under DACA will be eligible to apply to renew it.
  • Legislation could be enacted that would make people who have DACA automatically eligible for work authorization and protection from deportation.

If you decide to submit a renewal application after you’ve consulted with an attorney or accredited representative, we recommend that you include in your application a completed form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. The G-28 must be completed by your attorney or accredited representative. It provides information about their eligibility to act on your behalf.

You may apply to renew your DACA at any time before its expiration date, even if it is not set to expire until late 2017.

Make sure to use the latest edition of Form I-765 (Application for Employment Authorization), which is dated 01/17/17 (the date is in the form’s bottom-left corner). As of February 21, 2017, USCIS no longer accepts applications submitted on any earlier version of the form. The processing of your DACA application may be delayed if you don’t submit it on the form dated 01/17/17, because USCIS may send you a notice telling you that you must resubmit the application on the 01/17/17 version.

You can take certain additional steps that may get your application processed faster than it would be otherwise. For example, if you receive the notice of your biometrics appointment and don’t want to wait until the appointment time, you could go to the Application Support Center that’s listed on the notice and try to get a walk-in appointment. You could also try taking the steps described in NILC’s Steps to Take if Your DACA Renewal Is Delayed.

More information about submitting a DACA renewal application is available at www.nilc.org/dacarenewalprocess/.

You should return to the United States as soon as possible. There is a possibility that DACA could be terminated as early as September, in which case you would not have an underlying basis for your advance parole and you could run into significant challenges re-entering the country.

It is recommended that you do not travel outside of the country at this time. This applies even if you have advance parole. If you are already abroad, come back immediately.

Given the uncertainty surrounding the DACA program, and recent comments from ICE Director Homan directing agents to detain any and all undocumented individuals, traveling abroad is very risky, and there is not a guarantee that DACA recipients would be allowed back into the U.S. upon return.

Before September 5th, here are a few things you can do to prepare:

  • If you are between 120 and 180 days of your DACA expiring, submit your renewal application as soon as possible
  • Know your rights! You can’t always control whether you will come in contact with immigration enforcement. In case you do, make sure to read up on your rights at Informed Immigrant, create an emergency plan with important personal information, and memorize the phone numbers of a licensed immigration attorney and two family members (you can see a checklist of information to prepare from the ILRC here).
  • Print out “red cards” with information about your rights for you and your family
  • Connect with a community organization for additional support. You can find a group near you on our Organizations Lookup.
  • Read more practical tips from Informed Immigrant Ambassador Gaby Pacheco

It is also important to create a safety plan if you are worried about any interaction with immigration authorities or possible detention or deportation. These are some steps you can take:

  • Memorize the phone number of a friend, family member, or attorney that you can call if you are arrested.
  • Make a plan to have your children or other loved ones looked after if you are detained.
  • Women’s Refugee Commission has resources specifically for parents at risk of family separation: Make A Plan: Migrant Parents Guide to Preventing Family Separation and Detained or Deported: What About My Children? Parental Toolkit
  • Keep important documents such as birth certificates and immigration documents in a safe place where a trusted friend or family member can access them if necessary, or provide them with copies of these documents for safekeeping.
  • Make sure your loved ones know how to find you if you are detained by immigration authorities. They can use ICE’s online detainee locator to find an adult who is in immigration custody. Or they can call the local ICE office (https://www.ice.gov/contact/ero). Make sure they have your alien registration number written down, if you have one.

These are all resources you can trust, but you should always be aware of fraudulent service providers. For community education flyers to protect yourself against immigration service provider fraud, go to: https://www.ilrc.org/anti-fraud-flyers.

If the DACA program is terminated, it is not clear how the Administration will treat DACA and work permits that have been issued but have not yet expired. One possibility is that it may decide to revoke all DACA recipients’ deferred action and work permits immediately. Another possibility is that it may allow people to be in deferred action status and keep their work permits until they expire, but just not allow DACA recipients to renew them.

If the Administration allows the DACA program to end simply by not renewing DACA applications, and if you are able renew your DACA before the Administration stops processing renewal applications, you may have DACA for an additional two years. During that time, you would have authorization to work and protection from deportation.

Under federal law, your employer is required to reverify your employment authorization document (EAD) no later than the date that your EAD expires. If your EAD is set to expire, your employer will ask you for proof that your employment authorization has been renewed and will ask you to complete section 3 of the I-9 form to show that you presented an EAD with a new expiration date.

If, on the date your EAD expires, you cannot present proof that you have employment authorization, your employer may decide they can no longer employ you. If your EAD has expired, you are not obligated to tell your employer that this has happened, but you will be at risk of being fired when your employer realizes that your EAD has expired. How employers treat this reverification process will depend on how the DACA program ends, if it ends.

People who currently have DACA are supposed to be considered lower priority for removal. However, changes to DHS enforcement priorities under the Trump administration dramatically expanded enforcement priorities to include anyone in violation of immigration laws. Thus, undocumented people, including former DACA holders whose DACA has expired, or DACA recipients with criminal convictions may be considered enforcement priorities.

While some of DHS’ guidance has indicated that DACA is specifically exempt, other written materials and communications from DHS have been less clear, and there have been several reports of ICE detaining DACA recipients. For example, shortly after the release of one of these individuals in March, ICE issued a series of tweets affirming that DACA is not a protected legal status and that, while “active DACA recipients are typically a lower level of enforcement priority,” DHS can still execute removal orders against DACA recipients.

While DHS claims to assign higher priority to detaining and deporting people who it considers enforcement priorities — a vastly broadened definition under the Trump administration — groups will continue to monitor DHS activities closely to ensure DACA recipients are not subject to removal.

It is important to know your rights, and be alert to any further changes in immigration policy and enforcement in the coming months. Make sure to consult with an immigration attorney to give more personalized counsel.

Currently, USCIS’s policy is that it does not share information about a DACA applicant or the applicant’s family members with U.S. Immigration and Customs Enforcement (ICE) for immigration enforcement purposes unless there are serious criminal, fraud, or national security issues with the case. This policy is based on a 2011 USCIS memo which states that USCIS will refer to ICE only cases that raise fraud or “egregious public safety” concerns (such as that the applicant has a serious criminal conviction). Changing these policies would require that USCIS change its memo and guidance.

In-state tuition laws are made by states, so your ability to receive in-state tuition, and the eligibility requirements, will depend on where you live.

Currently, states with in-state tuition laws that require students to have DACA are: Virginia, Missouri, Ohio, Alabama, Arizona, Mississippi, and South Carolina. The following states have in-state tuition laws that do not require a student to have DACA but have alternative eligibility requirements: California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Mexico, New Jersey, New York, Oregon, Texas, Utah, Washington, Oklahoma, Wyoming, Nevada, Kentucky, Georgia, Indiana, Hawaii, and Rhode Island.

If you live in Virginia, Missouri, Ohio, Alabama, Arizona, Mississippi, and South Carolina and DACA is ended, your ability to receive in-state tuition may be impacted. Connect with local advocacy organizations to see how you can help locally if you live in one of these states.

Technically, DHS policy instructs immigration and border agents to avoid conducting enforcement actions at sensitive locations (with some exceptions). You can read that policy here. However, it has become unclear whether the agency is still adhering to these sensitive location policies, or whether ICE agents are now conducting enforcement actions at any location, regardless of its nature. It is important to know your rights and have a plan in place in case you encounter immigration or other law enforcement.

Locations which may still be covered by these policies include:

  • Schools, such as known and licensed daycares, pre-schools and other early learning

programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;

  • Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
  • Places of worship, such as churches, synagogues, mosques, and temples;
  • Religious or civil ceremonies or observances, such as funerals and weddings; and
  • During public demonstration, such as a march, rally, or parade.
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