The new form to renew Deferred Action for Childhood Arrivals (otherwise known as "DACA") is now out. The I-821D (version 6/04/14) will be used to process both initial as well as renewal applications.
What is Deferred Action?
DACA is an exercise of prosecutorial discretion by the government not to pursue removal proceedings against eligible individuals. Decisions are made on a case-by-case basis, and just because an individual meets the criteria does not necessarily entitle the applicant to a grant of deferral. As USCIS indicates, it will "evaluate the totality of the circumstances" in making a decision. It should be clarified that deferred action for does confer or lead to permanent residence. DACA approvals are granted for two years.
General Criteria for Initial Grants of Deferred Action for Childhood Arrivals
DACA cases comprise a limited subset of deferred action cases with very specific criteria. As per the DACA memos and instructions, an individual may be considered for an initial grant if he or she can demonstrate that he/she
· Was under 31 years of age as of June 15, 2012
· Came to the US before the age of 16
· Has continuously resided in the US since June 15, 2012 to the present time
· Was present in the US on June 15, 2012 and at the time of the application for deferred action
· Had no lawful status on June 15, 2012
· Satisfies the school requirement (high school degree, GED, or currently in school)
· Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety
What are the General Requirements for Renewal?
If an individual already has DACA status, he or she may qualify for a renewal provided he/she
· Did not depart the US on after August 15, 2012 without advance parole
· Has continuously resided in the US since submission of the original DACA application up to the present time and
· Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.
Some observations about the renewal process
Individuals who already have DACA should strongly consider consulting with an attorney if, since the original application for DACA, there has been any travel or criminal issues. Departures from the US without advance parole (permission granted by USCIS to leave and reenter, filed on Form I-131) as well as criminal convictions may not only endanger an extension but possibly expose the individual to removal.
Applicants must also file I-765 and Form I-765WS. The filing fee currently remains the same at $465.
While applicants for renewal are encouraged to file for renewal as soon as possible, USCIS has indicated that it may reject applications filed more than 150 days prior to expiration of the current DACA grant. The ideal time to apply, as per USCIS, is at least 120 days prior to expiration. One question or concern that immediately comes to mind, though, is what happens if the request is not adjudicated before the expiration of the current grant? Such a scenario is conceivable, if USCIS is flooded with renewal applications.
The renewal process seems to be streamlined and efficient. If an applicant already has DACA status, he or she apparently will not need to resubmit the documentation filed with the original request. If USCIS need more information, it will issue a Request for More Evidence ("RFE"). Only new documentation pertaining to removal proceedings or criminal charges needs to be furnished, but again, an individual in this type of situation would probably want to check with an immigration attorney first to ensure that filing is the best thing. Circumstances change and things may happen-intentionally or not-that may affect one's eligibility for DACA status. Criminal issues are always very sensitive and potentially dangerous: if an individual has been convicted of a criminal offense since the initial grant, he or she may not only be disqualified from renewal but possibly end up exposing him/herself to removal proceedings. While the renewal process may be less burdensome than applying for DACA the first time around, the legal issues remain as complex as ever.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.