By AttorneysNancy E. Miller & Joseph Elias
We are fast approaching the second anniversary of Deferred Action for Childhood Arrivals (DACA) grants. A DACA grant is only valid for two years and must be renewed for a continuation of deferred action. Deferred action provides the immigrant with protection from deportation, a USCIS work authorization identity card, and in some instances, travel authorization. Any lapse in periods of deferred action will trigger unlawful presence and interruption in work authorization.
The first wave of DACA approvals are about to expire. Renewals can be filed with the USCIS up to 120 days prior to the DACA expiration date. Keep in mind, the USCIS has been known to take up to 180 days to process DACA applications.There is no expedite process with the USCIS for renewals. So, waiting until the last moment to file a renewal can result in a loss of protection and benefits on the expiration date. And, they will only be renewed if and when the USCIS approves the extension.
Delays in processing will have an especially significant impact on DACA applicants who rely on their employment authorization for work. If a new employment authorization card is not issued in time, employers will be left with no choice but to terminate the DACA applicant when the work authorization expires. Therefore, in order to avoid interruptions to employment, DACA applicants should be finalizing their renewal applications to submit as early as 120 days prior to their deferred action grant.
Renewal application will require DACA applicants to re-qualify for the benefit. The DACA renewal requirements are summarized as follows:
- Under the age of 31 as of June 15, 2012;
- Came to the United States before reaching his or her 16th birthday and established residence at that time;
- Has continuously resided in the United States since June 15, 2007, up to the present time;
- Did not depart the United States on or after August 15, 2012 without advance parole.
- Was present in the United States on June 15, 2012, and at the time of making his or her request;
- Was out of status on June 15, 2012 (meaning she or he entered without inspection or his or her non-immigrant status had expired by then);
- Has graduated or obtained a certificate of completion from a high school, has obtained a general educational development certificate, is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; or was in school at the time he or she requested DACA from ICE and: 1) has successfully completed an education, literacy, or career training program (including vocational training) and obtained employment, 2) is currently enrolled in high school, postsecondary school or a new/different education, literacy or career training program, or 3) has made substantial, measurable progress toward completing an education, literacy, or career training program and,
- Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
These renewal requirements are very important since circumstances may have changed impacting an applicant’s eligibility to renew. The most significant include criminal arrests and convictions and disruption to studies. Take for example the case of a DACA applicant with two misdemeanor convictions when his initial application was granted. In the two years after the DACA grant, the applicant is arrested for a third offense. This applicant’s eligibility for renewal is in serious jeopardy and may even subject him or her to deportation. Such an applicant would need to consult with immigration and criminal attorneys to review options that would allow for the preservation of DACA eligibility.
Another example of a changed circumstance is a DACA applicant who was enrolled in high school prior to his grant. After DACA was granted, he was forced to drop out of school in order to work and help support his family. This applicant can expect significant challenges to obtaining a renewal of deferred action. This applicant should also consult with an immigration attorney to explore other acceptable options to document the education requirement for renewal.
DACA is a tremendous immigration benefit. The first group of approvals must now begin to prepare their renewals to ensure no interruption in protection from deportation and employment authorization. A denied application of renewal risks losing protection and DACA benefits.Therefore, applicants should also consult with immigration attorneys to determine whether they remain eligible for renewal and address any issues that may impact successful renewals.