UPDATE – AUGUST 31, 2018: In an order filed on Fri., Aug. 31, the U.S. District Court for the Southern District of Texas declined to issue a preliminary injunction that might have affected the ability of people with DACA to apply to renew their DACA. In the coming days, NILC will be updating its DACA-related materials to reflect the effects of the Aug. 31 ruling.
FREQUENTLY ASKED QUESTIONS
USCIS Is Accepting DACA Renewal Applications
Prepared by NILC and United We Dream
On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California ordered a halt to the federal government’s termination of the Deferred Action for Childhood Arrivals, or DACA, program. In the case Regents of the University of California, et al. v. Department of Homeland Security, et al., Judge Alsup granted a preliminary injunction — a temporary order blocking the termination of the DACA program while the case goes forward — requiring U.S. Citizenship and Immigration Services (USCIS) to begin accepting DACA renewal applications again. On January 13, 2018, USCIS announced its process for accepting renewal applications. USCIS also stated that further guidance about DACA renewal applications under the court order would be provided later.
United We Dream and the National Immigration Law Center drafted the following answers to frequently asked questions about the Jan. 13 announcement and subsequent developments.
■ Can I submit a first-time application for DACA?
If you have never had DACA before, you may not submit an application now. Only people who have had DACA at some point in the past can submit a renewal application.
In another DACA-related case, NAACP v. Trump, Judge John D. Bates of the U.S. District Court for the District of Columbia issued an order that if the federal government did not submit additional information to the court showing that the government’s attempt to terminate the DACA program is justified under federal law, USCIS would be required to start accepting, again, first-time applications for DACA as well as applications from DACA recipients for advance parole. The court gave the government 90 days to submit the additional information (a period that ended on July 23, 2017).
On June 22, the government submitted a new DACA-termination memorandum to the court. The memorandum, which is from U.S. Department of Homeland Security (DHS) secretary Kirstjen Neilsen, restates DHS’s rationale for ending the DACA program. Then on August 17, the court in DC issued an order that partially stays its previous order that the DACA program be fully reinstated. (A stay is a court order that halts further legal proceedings or the enforcement of orders in a case until the stay is either removed or made permanent.)
This means that, for now, USCIS is still not accepting either first-time applications for DACA or applications from DACA recipients for advance parole.
■ Even though USCIS isn’t accepting first-time applications now, should I prepare my first-time application in case it does start accepting them?
You may prepare an application if you want to, but at this time nobody knows for certain if USCIS will ever be required to resume accepting first-time applications for DACA. Even if you do not prepare a complete application, you can gather documents that prove you meet the DACA eligibility guidelines and begin setting money aside to pay the $495 application fee.
■ I have DACA. Can I apply for advance parole?
Currently, USCIS is not accepting applications for advance parole from DACA recipients.
■ Can I apply to renew my DACA?
YES. If you were granted DACA, you may submit an application to renew your DACA. You must also meet the following requirements in order to qualify for DACA renewal:
- You must not have departed the U.S. on or after August 15, 2012, without first having been granted advance parole.
- You must have resided continuously in the U.S. from the time you submitted the initial request for DACA up until the present time.
- You must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and must not otherwise pose a threat to national security or public safety.
■ I am interested in applying to renew my DACA. Does it matter when my DACA expires or expired?
USCIS has reopened the DACA renewal application process for anyone whose DACA has expired. However, the process for applying is different if your DACA expired before September 5, 2016. If your DACA expired before September 5, 2016, you can request to renew your DACA, but you must fill out the application as if you were applying for the first time. And you must submit evidence showing that you meet each DACA eligibility guideline.
If you had DACA and your period with DACA was cut short by the DHS (that is, if DHS terminated your DACA), you can apply again for DACA by filling out your DACA application as if you were applying for the first time. In this case, too, you will be required to submit evidence showing that you meet each DACA eligibility guideline.
When the announcement that DACA was being terminated was made, USCIS imposed the limitation that only people whose DACA expiration dates fell between September 5, 2017, and March 5, 2018, would be allowed to reapply, but that rule does not apply to the process announced on January 13, 2018.
Currently, USCIS is accepting and processing DACA applications submitted by people whose DACA expires more than 150 days after they submit their application. Early in the DACA program, USCIS stated that it would reject DACA renewal applications from such people. Later, USCIS encouraged DACA recipients to complete their renewal application during the 120 to 150–day window before expiration, to provide enough time for processing and to avoid a lapse in their DACA, but did not reject renewal applications from people who submitted them more than 150 days before their DACA expired. Since January 2018, USCIS has been accepting (and not rejecting) applications for renewal from people whose DACA will expire more than 150 days after the date they submit their application.
However, before you submit a renewal application more than 150 days before your DACA expires, we urge you to speak with an attorney or other knowledgeable legal services provider to discuss the benefits and risks of applying early. We suggest that you consider these issues:
• If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017).
• If you apply early and are granted DACA renewal, your “new” DACA and work permit may start being valid before your “old” DACA and work permit expire. Nevertheless, your new work permit will expire two years after its date of approval. Currently, it’s taking USCIS about 3-5 months to adjudicate an application, but some applications have been adjudicated faster.
Example: Your current DACA and work permit expire in December 2019. You submit a renewal application today, and USCIS accepts it. USCIS grants your DACA renewal in October 2018. Therefore, your renewed DACA and work permit will expire in October 2020. In other words, by applying now, you may gain a total of only 10 more months of DACA and work authorization.
If you decide to go ahead and apply now, we recommend doing so as soon as possible. Future developments in DACA-related court cases may make it harder or impossible to renew DACA. Information about the status of DACA-related court cases and how decisions and orders in these cases affect the DACA program is available at www.nilc.org/daca-litigation-timeline/ and www.nilc.org/daca/ (look under the Litigation tab).
■ To be eligible to apply for DACA renewal, do I have to be living in California or New York?
Though the first two U.S. district courts that ordered USCIS to resume accepting DACA renewal applications are located in California and New York, their orders and the renewal process announced by USCIS apply nationwide.
■ When should I apply to renew my DACA?
You should assess whether it makes sense for you to apply as soon as possible (see the answer to “I am interested in applying to renew my DACA. Does it matter when my DACA expires or expired?,” above). There is no deadline by which applications are due. However, DACA-related court cases are pending in various federal courts, including a case in the U.S. District Court for the Southern District of Texas (Texas v. Nielsen) that challenges the lawfulness of the DACA program. The DACA renewal program may be available indefinitely, or it may be stopped by the court in Texas or another court, depending on future developments in these court cases.
■ Will I be able to apply after August 2018 to renew my DACA?
As of the date this FAQ was published, nobody knew how long the option to renew DACA would be available. As this FAQ is being written, there is no one deadline by which people with DACA must apply for DACA renewal if they want to renew their DACA. However, some advocates are encouraging people who want to apply for renewal to apply now, given the uncertainty about what may happen in the various DACA-related court cases.
In one of those cases, Texas v. Nielsen, the U.S. District Court for the Southern District of Texas has already heard arguments on the plaintiff states’ motion for a preliminary injunction against the DACA program. This case was brought by Texas and other states to challenge the lawfulness of the DACA program, not to challenge the Trump administration’s termination of the program. The hearing on the preliminary injunction motion took place on August 8, 2018. The court in Texas will now decide whether to issue a preliminary injunction against the DACA program, possibly ordering USCIS to stop accepting DACA applications, including applications for renewal. The court may rule on the preliminary injunction at any time.
The judge in that case, Andrew Hanen, does not have the authority on his own to overrule the injunctions issued by the U.S. district courts in California and New York that currently allow people with DACA to apply to renew it. If Judge Hanen issues a ruling that DACA is unlawful, there will be subsequent proceedings in courts across the country to determine if the current court orders allowing renewals will continue in effect. Developments in these DACA-related court cases may affect the availability of DACA renewals.
■ What should I do to prepare to apply to renew my DACA?
To prepare to apply to renew your DACA:
• It’s crucial to weigh the pros and cons of applying at this time. You must consider the possibility that a court order may stop USCIS from continuing to accept applications before or even while your application is pending, which means you may risk losing the $495 fee you must pay when you file the application. If this were to happen, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017).
• It’s important that the information in the renewal request be consistent with the information provided in your initial application and any past renewal applications. Therefore, we recommend that when preparing your renewal application now, you refer to a copy of your initial and renewal DACA applications, if that’s possible. You should also make a copy of the current renewal application before you submit it.
• You must have put aside $495 to pay the renewal application fees. If you are having trouble paying the fees, consider creating a GoFundMe campaign and applying for a grant from United We Dream’s DACA Renewal Fund.
• If you have received legal citations, been arrested, or been criminally charged or convicted since initially receiving DACA, you must gather evidence of these contacts with law enforcement or the courts. We highly recommend speaking to an attorney or a BIA (Board of Immigration Appeals)–accredited representative prior to applying, because given changes in who is considered an “immigration enforcement priority,” the risks associated with applying may be different if you have had interactions with law enforcement.
• If you have a deportation order, a voluntary departure order, or an administratively closed immigration case, we highly recommend speaking to an attorney or BIA-accredited representative before you apply. Given the change in who is now considered an “immigration enforcement priority,” the risks associated with applying may have changed.
• If you are currently in exclusion, deportation, or removal proceedings, you must submit any new documents related to your case, unless you already submitted them to USCIS when you first applied for DACA or unless your case was administratively closed. We recommend speaking to an attorney or BIA-accredited representative before you apply to assess how applying for DACA will affect your case.
■ How do I apply to renew my DACA?
If your DACA expired before September 5, 2016, you can request to renew your DACA, but you must fill out the application as if applying for the first time. If you had DACA and your grant of DACA was cut short by DHS (i.e., DHS terminated your DACA), you can apply to renew your DACA, but you have to complete the DACA application as if you were applying for the first time. Make sure to follow all the instructions for initial applicants on Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and to submit evidence demonstrating that you meet each DACA eligibility guideline. Information about the requirements and process for submitting a first-time application is available at www.nilc.org/faqdeferredactionyouth/. When you fill out Part 1 of the Form I-821D, be sure to include the date your DACA expired. As part of your application, you also must complete and submit Form I-765, Application for Employment Authorization; and Form I-765WS Worksheet. (The I-765 forms are available from https://www.uscis.gov/i-765.)
If your DACA expired on or after September 5, 2016, you may submit a DACA renewal application. To file a renewal application, you must fill out and submit these forms: Form I‑821D, Consideration of Deferred Action for Childhood Arrivals; Form I-765, Application for Employment Authorization; and Form I-765WS Worksheet. NOTE: You should use the latest edition of each form to avoid any delays in the processing of your application. To make sure that you’re using the latest edition of each form, look for the following in the bottom left corner of each page of the respective form:
- Form I-821D 01/09/17 Y
- Form I-765 05/31/18
- Form I-765WS 05/31/18
The following information applies to you if your DACA expired on or after September 5, 2016: When you submit a renewal application, you must fill out all sections of the forms and answer all the questions except those designated “For Initial Requests Only.” You must also submit any new documents relevant to your removal proceedings or criminal history that you have not submitted previously. Make sure to provide the date your prior DACA expires or expired in the appropriate box on Part 1 of Form I-821D.
USCIS requires that you send a copy of the front and back of your last employment authorization document, as well as two passport-type photographs taken within 30 days of filing your renewal application.
USCIS asks that no additional documents be sent, not even proof that you have resided continuously in the U.S. since you first received DACA. USCIS advises that you keep all documents that provide evidence that you meet all the guidelines. USCIS reserves the right to ask you for additional information, documents, and statements to verify information on your DACA renewal application. USCIS also reserves the right to contact government agencies and others to verify the information provided in the application.
NOTE: If your DACA was granted initially by U.S. Immigration and Customs Enforcement (ICE) and not USCIS, you must fill out all the sections and answer all the questions on the forms and submit all supporting documentation as if you were filing an initial request. The completed forms and supporting documentation must then be submitted to USCIS.
■ What is the fee for the DACA renewal application?
When you apply to renew DACA, you must include the fee of $495 made out to “U.S. Department of Homeland Security.” In very limited circumstances, applicants may be exempted from having to pay the fees.
■ Where should I send my DACA renewal application?
Regardless of whether your initial DACA request was adjudicated by ICE or by USCIS, you must submit your application for renewal to USCIS. Where, specifically, you must send your application depends on where you live. Check USCIS’s Direct Filing Addresses for Form I-821D, Consideration of Deferred Action for Childhood Arrivals for the correct mailing address. We highly recommend sending the application by certified mail, to track when it arrives at the USCIS Lockbox, and including in your application packet Form G-1145, E-Notification of Application/Petition Acceptance, so you’ll be notified once USCIS accepts your application.
■ If I have been arrested or convicted of an offense, or if I have had other interactions with law enforcement since receiving DACA, what should I do?
It is a risk to apply. Speak with an attorney or a BIA-accredited representative about your case. Due to how the government’s immigration enforcement priorities changed in January 2017 and the possibility that the current renewal process may be available only for a limited time, it is best to speak with an immigration expert before applying. Even if the incident happened before you applied and received DACA in the past and you revealed it in previous applications for DACA, the government’s immigration enforcement priorities have changed and if you reapply now you are at risk of being referred to ICE.
■ Can someone with a deportation order, voluntary departure, or an administratively closed case apply for DACA renewal?
It is a risk to apply. Speak with an attorney or a BIA-accredited representative about your case. Due to how the government’s immigration enforcement priorities changed in January 2017, if you had any interaction with an immigration judge or immigration court, you should speak with an immigration expert. Even if these events happened before you applied and received DACA in the past and you revealed them in previous applications for DACA, the government’s immigration enforcement priorities have changed and if you reapply now you are at risk of being referred to ICE.
■ My last renewal application was rejected because I did not meet the October 5, 2017, deadline. Can I still apply to renew?
YES. You can apply for renewal even if your last application was rejected specifically due to not meeting the October 5, 2017, deadline.
■ How long will it take USCIS to process my DACA renewal application?
We can’t know for certain how long it will take USCIS to process your application, but we know from reports by DACA applicants that USCIS lately has been processing cases in a timely manner, within its initial goal of 120 days.
IMPORTANT NOTE FROM THE AUTHORS
We want to emphasize that, regardless of what happens in the DACA-related court cases, Congress needs to act to pass the Dream Act. President Trump’s decision to terminate DACA created panic and left millions of immigrant youths’ lives in limbo. Attorney General Jeff Sessions’s announcement about terminating DACA, followed by DHS’s guidance on who could apply for renewal and by when, created confusion and widespread anxiety within the immigrant community.
Although the implementation of orders from federal courts in California, New York, and Washington, DC, allowing people to apply for DACA renewal have helped bring some relief to immigrant youth, many are still worried that the option to apply to renew their DACA may be taken away at any time. This is no way to live. Immigrant youth deserve stability, peace of mind, and protections from detention and deportation, which only a permanent solution such as the Dream Act can provide.
 DACA eligibility guidelines: https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca#guidelines.
 Information from USCIS about requesting DACA for the first time and applying to renew DACA is available from http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process.
 See note 2, above.
 See note 2, above.
 See note 2, above.