How Does the New USCIS Policy Affect DACA and EAD

On July 28, 2020, Acting Secretary of Homeland Security Chad Wolf issued a memorandum entitled “Reconsideration of the June 15, 2012, Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.’” The Wolf Memorandum set forth departmental action to effect immediate changes to limit the scope of the DACA policy pending a full and careful reconsideration of the DACA and EAD policy. 

What actions did the Wolf Memorandum suggest?

The Wolf Memorandum directed the following actions, effective immediately:

• Reject all initial DACA requests and associated applications for EAD, and refund all associated fees, without prejudice to re-filling such requests should DHS determine to begin accepting initial requests again in the future;
• Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for EAD from current beneficiaries;
• Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year;
• Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods;
• Reject all pending and future Form I-131 applications for advance parole beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances;
• Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods;
• Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate;
• Continue to comply with the information-sharing policies as reflected in the DACA Frequently Asked Questions issued alongside the Napolitano memorandum, and as outlined in USCIS’s Form I-821D instructions. Nothing in this memorandum changes that policy.

How does the Wolf Memorandum affect DACA and EAD?

The United States Citizenship and Immigration Services provided guidance on how it is going to implement Acting Secretary of Homeland Security Chad Wolf’s July 28 memorandum regarding the Deferred Action for Childhood Arrivals policy.

USCIS stated that they will reject all initial DACA requests from those aliens who have never previously received DACA, as well as return all the fees. These rejections will be without prejudice. This means that aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. However, USCIS is going to continue accepting requests from aliens who had been granted DACA at any time in the past, as well as requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

When it comes to DACA renewal requests which are approvable, USCIS plans to limit grants of deferred action and employment authorization under DACA for no more than a year. USCIS will not rescind any currently valid two-year grants of DACA or associated employment authorization documents unless USCIC terminates an alien’s DACA for failure to continue to meet the DACA criteria (2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. The two-year EADs that are lost, stolen, or damaged will be replaced by USCIS with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS states that they will generally reject requests which are received more than 150 days before the current grant of DACA expires, as the renewal should be filed between 150 and 120 days before their current grant of DACA expires.

The advance parole for travel outside the United States will only be granted to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. USCIS will not rescind any previously granted advance parole documents unless there is a legal reason for that. Parole into the United States is not guaranteed and, in all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether or not they are eligible to enter the United States.

Determining whether or not to grant parole to an alien is entirely within the discretion of USCIS and will be made on a case-to-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance.

Immigration attorney Chicago provides examples of circumstances that may warrant approval. These circumstances include, but are not limited to, situations such as:

• Travel to support national security interests of the United States;
• Travel to support the United States federal law enforcement interests;
• Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the US;
• Travel needed to support immediate safety, wellbeing, or care of an immediate relative, particularly minor children of the alien.

Even in cases where a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

If you travel outside the U.S. after August 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.