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New DACA Policy and Procedure | 2020 Update Post Supreme Court Decision

On Behalf of | Sep 9, 2020 | DACA |

In the wake of the Supreme Court’s ruling on DACA, USCIS recently released guidance on how it will implement and administer the program under Secretary Chad Wolf’s regime. The August 21 memo confirms that DACA grants will be limited to one, instead of two-year grants. Notwithstanding the new shorter terms, the agency will not rescind any currently valid two-year grants or associated work permits. Individuals with two-year work permits who file replacement applications due to theft, loss, or mutilation will receive replacements with the same validity period.

Unfortunately, contrary to the language of the Supreme Court’s ruling, USCIS will not accept new initial DACA applications if the individual has never received a grant of DACA previously. In other words, if an individual has never applied and received DACA before, USCIS will reject the application. The guidance notes that the rejection will be “without prejudice,” in the event that the agency modifies its policy in the future, but that seems highly unlikely.

Another salient aspect of the new policy is that in general, USCIS will not approve I-131 applications for advance parole. However, under limited circumstances, USCIS may approve such requests if they conform to the original intent and purpose of the parole regulations, which are namely to further urgent humanitarian reasons or a significant public benefit. The decision to grant advance parole is entirely discretionary and will be made under a totality of circumstances approach. Some example of legitimate reasons why a parole request may be granted include, but are not limited to:

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

As is evident, the new calculus looks to be particularly stringent. Advance parole requests to visit family-in the absence of compelling circumstances-or to attend marriage ceremonies, or go on a honeymoon, will not likely be granted.

Without advance parole, an individual who departs the US may trigger unlawful presence bars which may prevent that person’s entry back into the US. Additionally, depending on the person’s history, removal/deportation orders may be effectuated or executed upon leaving. USCIS also notes that travel outside the US on or after August 15, 2012 without first receiving advance parole automatically terminates a grant of deferred action. Therefore, the prospect of travel should be considered very carefully and ought to be explored in depth with immigration counsel. The negative impact of travel may outweigh any potential benefits of traveling outside the US, even with advance parole, depending on the individual’s particular situation. 

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