FAQs: DACA, BRIDGE Act, and being undocumented in 2017

These FAQs provide information and recommendations that may help you prepare for life under the administration of President Donald Trump. 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

Click on question bar to expand and close answer.

If you do not currently have DACA and are considering whether to apply for it for the first time, we recommend that you consult with an immigration attorney or a Board of Immigration Appeals–accredited representative before you apply.

Because no one is certain about what will happen with DACA, and because immigrant communities have legitimate fears about what will happen to them under the Trump administration, at this time we recommend not submitting a first-time application for DACA unless you have consulted with and are being represented by an attorney or accredited representative. This recommendation may change in the future, as we learn more about the Trump administration’s plans for DACA.

Also consider this: If you apply for DACA today, it takes three months or more to process a DACA application. Three months from now the DACA program may have been terminated, and we don’t know what USCIS will do about pending applications. It’s possible not only that your application will not be approved, but that you may lose the $495 application fee.[2]

On the other hand, there are scenarios under which submitting your application now may have positive results. For example, if the DACA program is not terminated before your 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.
  • 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.
  • 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.
  • Legislation such as the BRIDGE Act could be enacted that would make people who have DACA automatically eligible for work authorization and protection from deportation.
U.S. Citizenship and Immigration Services (USCIS) confirmed on January 23 that USCIS is still accepting and processing DACA applications, despite the possibility that that the DACA program might be terminated.

These are uncertain times, and nobody knows exactly what will happen to the DACA program. You should weigh your options with a licensed attorney along with your family, and then make a decision.

If you decide to submit an 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.

Also, 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 is no longer accepting 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 first-time application for DACA is available at www.nilc.org/faqdeferredactionyouth/.

If you decide not to submit an application for DACA at this time, while you’re waiting to see what the Trump administration decides about the DACA program you can gather any supporting documents that you will have to submit with your application if and when you apply. You can also fill out the application forms so they will be ready to file.

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 such as the BRIDGE Act 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/.

It is unclear at this point in time whether or not the current administration will act to end the DACA program or allow it to remain in place. Because of statements President Trump made during his campaign, many fear that the program will be ended. However, for now the program still stands and USCIS is still processing new applications.

If the DACA program is terminated, it is not clear how it 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’ DACA and work permits immediately. Another possibility is that it may allow people to keep their DACA and work permits until they expire, but just not allow DACA recipients to renew them.

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

 

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.

Under federal law, your employer is required to reverify your employment authorization document (EAD) no later than the date that your EAD expires. It is likely that 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.

People with DACA would not necessarily be automatically at greater risk of being deported than other undocumented immigrants if the DACA program is terminated.

The U.S. Department of Homeland Security (DHS) considers people who, for example, have felony criminal convictions or recent deportation orders as being “enforcement priorities.” DHS assigns higher priority to detaining and deporting people who it considers enforcement priorities. People with DACA are considered “low priorities” for deportation, based on how long they’ve lived in the U.S., their ties to the U.S., and their not having committed serious crimes. Keep in mind, though, that the Trump administration may change these priorities.

If you have DACA and want to continue living in the U.S., you should never travel abroad unless you have applied for and received advance parole from USCIS. Advance parole is permission from USCIS to return to the U.S. after traveling abroad.

However, because we are not sure about what the Trump administration will do with respect to DACA, our general recommendation is that people with DACA not travel abroad at this time, even if you receive advanced parole. If you decide that you must travel outside the U.S., and if you receive advance parole, we recommend that you keep your trip as short as possible. We also recommend that you arrange to have your BIA–accredited representative or attorney standing by, available by phone, when you return to the U.S. so they can provide real-time advice if the immigration officer tries to prevent you from entering. Even if you’ve received advance parole, people with DACA may find it harder under the present administration to be admitted into the U.S. after they’ve traveled abroad, nor is it certain that you will be allowed back into the U.S. if you leave.

Yes, you should go to a legal services provider who can screen you for any possible immigration options for which you may be eligible. Some resources that will help you find legal help are:
· The immigration courts’ list of lawyers and organizations that provide free legal services: justice.gov/eoir/list-pro-bono-legal-service-providers-map.
· At https://www.adminrelief.org, there’s a search engine that allows you to type in a zip code and get a list of all the legal services near you.
· American Immigration Lawyers Association’s online directory, ailalawyer.com.
· iAmerica for an online list of legal services by state: http://iamerica.org/find-legal-help.
· Immigration Advocates Network’s national directory of more than 950 free or low cost nonprofit immigration legal services providers in all 50 states: https://www.immigrationlawhelp.org.
· Immigrant Legal Resource Center has a comprehensive online client intake form: https://www.ilrc.org/screening-immigration-relief-client-intake-form-and-notes.
· National Immigrant Justice Center allows you to schedule a legal consultation by phone (312-660-1370) or email (immigrantlegaldefense@heartlandalliance.org).
· National Immigration Project of the National Lawyers Guild’s online find-a-lawyer tool: https://www.nationalimmigrationproject.org/find.html.
· United We Dream’s hotline: 1-844-363-1423.

It is important to create a safety plan if you are worried about any interaction with ICE 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 friend or family member can access them if necessary, or provide them with copies of these documents for safe-keeping.
· Make sure your loved ones know how to find you if you are detained by ICE. 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.

You have rights guaranteed under the U.S. Constitution. There are many organizations that have created Know Your Rights resources available in English and other languages, including:
· American Civil Liberties Union (English and Spanish)
· Immigrant Defense Project (English and Spanish)
· National Immigration Law Center
· iAmerica for Know Your Rights infographics (Spanish and English)
· National Immigration Project of the National Lawyers Guild

DHS policy instructs immigration and border agents to avoid conducting enforcement actions at sensitive locations (however, there are some exceptions). While these policies may change under a new administration, locations 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.

To report an enforcement action that you believe is in violation of ICE policy, contact:
· ICE Enforcement and Removal Operations (ERO) by phone (through the Detention Reporting and Information Line at 888-351-4024), by email (ERO.INFO@ice.dhs.gov) or online (https://www.ice.gov/webform/ero-contact-form).
· The Civil Liberties Division of the ICE Office of Diversity and Civil Rights may be contacted at (202) 732-0092 or ICE.Civil.Liberties@ice.dhs.gov.

The First Amendment to the U.S. Constitution prohibits the government from restricting your right to free speech. This means that anyone in the U.S., regardless of their immigration status, has the right to participate in political protests, marches, and demonstrations.

However, it is important that you assess the risks of any potential interaction with law enforcement and to avoid arrest by local, state or federal law enforcement under any circumstances. Before you decide whether to participate in any such actions, it is important that you consult with an attorney.

While there is no uniform definition, the term “sanctuary city” is often used to describe localities that limit the role of local police in enforcing federal immigration law, by prohibiting or limiting compliance with ICE detainers and requests for notification of a person’s release date from police custody. These policies have been adopted in over 400 communities across the U.S., because they make communities safer, protect individuals from violations of their constitutional rights, and ensure that ICE does not exceed its authority with improper arrests.

At a time of deeply fractured trust between law enforcement and local communities, particularly communities of color, these policies are widely embraced as one step towards restoring trust between immigrant and other community members who fear that interactions with local and state police could expose their loved ones to deportation.

Nothing in federal law that requires state or local police to comply with ICE detainers or otherwise do the job of federal immigration officials. As a result, cities across the country with some variation of a “sanctuary” policy, including Chicago, Los Angeles, New York, Philadelphia, San Francisco, Santa Fe, Seattle, and Washington, D.C. have publicly reaffirmed their commitment to their existing policies and have said they have no plans to change them under a new administration.

The BRIDGE Act would make it possible for people who meet certain requirements to apply for and receive “provisional protected presence” and work authorization for a three-year period. The three-year period would end three years after the bill becomes law. The requirements people would have to meet are essentially the same as the requirements for DACA under the program that was created in 2012.

People who already have DACA would be deemed to have provisional protected presence until their DACA’s expiration date, then they would be eligible to apply affirmatively for provisional protected presence.

The BRIDGE bill also would impose restrictions on the sharing of information in DACA and provisional protected presence applications with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection for purposes of immigration enforcement.

No. The Dream Act did not pass when Congress voted on it in 2011, and it has not been reintroduced since then. The Dream Act would have permitted certain immigrants who grew up in the U.S. to obtain temporary legal status and eventually to apply for and obtain permanent legal status, then U.S. citizenship. To be eligible, they would have had to meet certain education-related requirements or have served in the U.S. military.

The BRIDGE Act would not provide a pathway to U.S. citizenship. It would only allow people who are eligible for—or who already have—DACA to receive work authorization and provisional protected presence.

Members of Congress from both parties recognize the positive impact providing work authorization and protection from deportation has had on the lives of people with DACA, as well as on the broader society and economy. (These benefits are detailed in a recent report, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes.) The BRIDGE bill would allow DACA recipients the opportunity to continue contributing to our society and economy.

In addition, policymakers recognize the need to protect DACA recipients. Since the November 2016 election, many DACA recipients and their allies have expressed concerns over whether President-elect Trump will follow through on his campaign threat to end the DACA program. If it were enacted, this bill’s provisions would provide assurance to DACA recipients that they could continue being both authorized to work in the U.S. and protected from deportation.

To be eligible for provisional protected presence under the BRIDGE Act, a person would have to

  • have been born after June 15, 1981;
  • have come to the U.S. before their sixteenth birthday;
  • have lived continuously in the U.S. since June 15, 2007;
  • have continuously resided in the U.S. from June 15, 2007, until the date of filing an application under the BRIDGE Act (except for travel using advance parole);
  • have been physically present in the U.S. on June 15, 2012, and at the time of filing an application under the BRIDGE Act;
  • not have had a lawful immigration status on June 15, 2012;
  • at the time of filing an application under the BRIDGE Act, be currently in school or in an educational program aimed at obtaining a high school diploma or passing a general education development (GED) exam; or, at the time of applying, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and
  • not have been convicted of a felony offense, significant misdemeanor, or three or more misdemeanor offenses, or been deemed to pose a threat to national security or public safety.

The cost to apply for provisional protected presence under the BRIDGE Act would be determined by the secretary of Homeland Security, but fee exemptions would be provided in limited circumstances.

DACA is a type of “deferred action” (which provides work authorization and protection from deportation) announced in a memo issued by former Secretary of Homeland Security Janet Napolitano on June 15, 2012. Because the DACA program was created through an executive action of the Obama administration, the incoming Trump administration could end it without having to consult with or get approval from Congress.

On the other hand, the BRIDGE Act is a proposed law, introduced by members of Congress, that would authorize the secretary of Homeland Security to grant provisional protected presence and work authorization to certain non–U.S. citizens. While the BRIDGE Act’s provisions are very similar to the DACA program’s, if the BRIDGE Act is enacted into law, its provisions would remain in effect until Congress either changed them or repealed the law. This would provide more protection to applicants for provisional protected presence than applicants for or recipients of DACA currently have.

The BRIDGE bill has been introduced into the U.S. Senate. To become law, a bill first has to be approved by both the Senate and the House of Representatives, then it has to be signed by the president. Most bills that are introduced in Congress don’t make it to the president’s desk to be signed—that is, they don’t pass Congress. And usually it takes several months for a bill to make it through the congressional approval process. Usually the bill has to be reviewed and voted on by two or more congressional committees. During the approval process the bill’s content—including, in the BRIDGE bill’s case, the eligibility criteria for provisional protected presence—may be changed substantially.