UPDATED: JANUARY 26, 2018
On January 13, 2018, USCIS updated its website to include guidance on submitting DACA renewal applications in light of the January 9, 2018 district court decision. The guidance includes the following information:
- Clients Who Have Never Had DACA: USCIS will not accept DACA requests from individuals who have not previously been granted DACA. The court decision states that applications from people who have never applied for DACA “need not be processed.”
- Clients Who Currently Have DACA: Clients who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765, and Form I765 Worksheet, with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the form instructions.
- Clients Whose DACA Expired On or After September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired within the past year were eligible to apply for renewal. USCIS’s guidance states that recipients whose previous DACA expired on or after Sept. 5, 2016, may still file a renewal request. USCIS asks applicants to list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
- Clients Whose DACA Expired Before September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired more than a year prior to reapplying had to submit initial DACA request applications. USCIS’s guidance states that recipients whose previous DACA expired before September 5, 2016 cannot request DACA as a renewal, but may file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. These applicants are instructed to list the date their prior DACA expired on Part 1 of the Form I-821D, if available.
- Clients Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. These applicants are instructed to list the date their prior DACA was terminated on Part 1 of the Form I-821D, if available.
- Advance Parole: USCIS will not accept or approve advance parole requests from DACA recipients. The court decision had stated that applications for advance parole based on DACA do not have to be processed for the time being.
When Should Clients Submit Their DACA Renewal Applications?
Because the defendants have already appealed the district court’s decision to both the Ninth Circuit and the Supreme Court, and given the processing times for DACA applications, practitioners should consider submitting renewal applications for eligible clients as soon as possible.
USCIS has encouraged applicants to apply 150 to 120 days in advance of the expiration of their prior DACA grants. AILA reached out to USCIS for clarification on how it will handle applications that are filed more than 150 days in advance of the expiration date of the underlying DACA grant, and was told that USCIS would accept DACA renewal requests in accordance with the DACA policies in place before DACA was rescinded on September 5, 2017.
Under the instructions for Form I-821D and the DACA FAQs on USCIS’s website, DACA applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. The form instructions stated that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs noted that requests received more than 150 days in advance of expiration would be accepted, but could result in overlap between the applicants’ current DACA and their renewal DACA. See Questions 49 and 50 of the DACA FAQs.
AILA is not aware of widespread rejection of early-filed DACA renewals prior to the rescission of the DACA program, so USCIS lockboxes may continue to accept early-filed DACA renewals. However, USCIS may not prioritize adjudication of these early-filed applications, given that they are not as time-sensitive as timely-filed DACA renewals. If you file a DACA renewal application for a client more than 150 days in advance of the DACA expiration and it is rejected for being filed too early, please email [email protected], with the subject line “rejected early-filed DACA renewal.”
Practitioners and their clients may want to consider several factors when deciding whether to submit a DACA renewal application more than 150 days in advance, including how early they would be applying to renew, the availability of renewal fees, and whether anything has changed since the last time they applied for DACA. It may be good to consider the possible outcomes of filing an early DACA renewal application under the court decision, as well, including (but not limited to): that the renewal could be rejected and take several weeks to be returned; that the application could be accepted but not prioritized for adjudication; that there could be an adverse court decision after the application is submitted but before it is approved and the filing fee is lost; that there could be a court decision that grandfathers cases already filed under the district court decision; or that the case could be accepted and approved before the court makes a decision.
Source: AILA Doc. No. 18011035.
For previously submitted information on DACA refer to this article.