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.
Amidst the media's preoccupation with the shutdown, little was made of the Supreme Court's decision last week not to hear arguments on DACA this term. Unless the high court were to deviate from its normal procedure, this means that arguments will not likely be heard until its next term, assuming the case is taken up. As a consequence, and in light of pending litigation, current DACA recipients (and those who previously had DACA status) may continue to file for deferred action status at least through the end of 2019. The courts are still deciding whether individuals who never filed for DACA can file initial applications for the first time, but for those who have already filed and were granted DACA status, applications for renewal must still be accepted by USCIS pursuant to two federal court orders.
With the Supreme Court deadlocked over United States v. Texas, the lower appeals court ruling upholding an injunction against DAPA and Expanded DACA remains in place. The decision, unfortunately, effectively stymies any progress on immigration for the duration of the Obama administration, leaving millions of undocumented aliens frustrated and disappointed. While the ruling is disheartening, it is important to place it within its proper context. Especially for those affected by it, it is important to understand what the decision means and does not mean.
Advance parole is most often understood in the context of adjustment of status applications where the applicant is given advance permission by USCIS to leave the US while his or her green card case is pending without being considered to abandon it. However, one does not necessarily need to have filed an application for adjustment of status (I-485) in order to apply for advance parole. Individuals who have been granted DACA status, for example, are also eligible, under certain circumstances, to apply for travel permission.
Last week, new rules were issued that affect the MAVNI program and who is eligible to apply. MAVNI, short for Military Accessions in the National Interest, is a special program that allows non-US citizens, even those who are not yet permanent residents, to enlist in the US military if they have special language or health care skills in demand by the government. Enrollment is limited to 1500 recruits a year, so this is not a broad based program. Nevertheless, what makes last week's news of interest to those without legal permanent resident status is that DACA grantees-those approved under the Deferred Action for Childhood Arrivals-are now eligible to apply for acceptance into the program. The caveat, of course, aside from the cap of 1500 (which is minuscule) is that the individual must not only have an approved application but more importantly, the individual must possess the necessary skills that would qualify him/her for consideration under MAVNI. At this point, it is not clear whether this is an empty gesture by the Obama administration or something of great utility to those who wish to serve this country but who lack legal status through no fault of their own, such as DACA recipients who entered the country as minors and have since fallen out of status but have managed to obtain high-school level education degrees and maintain a clean record. In fact, some believe that only a handful of DACA people will benefit from this. Even so, those who have a desire to benefit this country and are lucky enough to get accepted into the program may find themselves in a unique position of being able to apply for naturalization through military service. This avenue would actually allow them to bypass permanent residence entirely and apply to become citizens of the United States. For more information on the MAVNI program, check out this slide we recently prepared.
Time flies. The Deferred Action for Childhood Arrivals Program (DACA) has recently celebrated its one year anniversary already. An approved DACA application brings with it temporary protected legal status and work authorization. The requirements are as follows: