Month: January 2018

Categories
Updates

9 Frequently Asked Questions on DACA Renewals

Share this:

Last week a Federal District Court Judge in San Francisco issued a nationwide injunction that temporarily blocks the phase-out of a program protecting the Dreamers. The preliminary injunction issued on January 9, 2018 by U.S. District Judge William Alsup remains in effect during litigation in five consolidated lawsuits that challenge the government’s decision to wind down the program known as Deferred Action for Childhood Arrivals (DACA). The following are frequently asked questions about this injunction:

1.What is the impact of this injunction on the DACA program?

The preliminary injunction order means that the DACA program will be maintained temporarily during the litigation on the same terms and conditions as were in effect before the rescission on September 5, 2017. Also, certain DACA beneficiaries will be able renew their work permits and protections with a few exceptions.

2. Who can renew their DACA protection and work permits?

Dreamers 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.

3. Can Dreamers with expired DACA beginning September 5, 2016 until Sept 5, 2017 apply for renewal?

When the DACA was terminated on September 5, 2017, the DACA protection that were then expiring were only given until October 5, 2017 to renew. Significant number of these DACA recipients failed to renew. With this injunction order, USCIS issued a guidance clearly stating that they may now renew their DACA work permits and protection.

4. Can Dreamers whose DACA expired before September 5, 2016 still apply for renewal?

No. Those whose DACA protection and work permit expired BEFORE September 5, 2016 may not renew. However, they will be allowed to re-file a new DACA application under the USCIS guidance.

5. What about Dreamers whose DACA protection and work permit was terminated by the USCIS, can they now file for renewal?

No. But like in #4 question, they will be allowed to re-file a new DACA application. USCIS asks applications to list down the date their prior DACA was terminated.

6. How soon can the Dreamers apply for the DACA renewal ?

Dreamers who are eligible for renewal must file as soon as possible given the fact that the injunction is temporary in nature. Under the instructions for Form I-821D and the DACA FAQs on USCIS’s website, applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. It is not yet clear from USCIS if they will reject those filed more than 150 days given that the injunction order is only temporary in nature and ancillary to the litigation is pending. Once there is clarification, we will inform readers of future developments.

7. What about DACA beneficiaries who wants to apply for the first time, will they be permitted to file their application now?

The USCIS guidance clearly indicates that those who have not filed DACA applications in the past may not file for new applications now. This means that the injunction order extends only to those who had prior grant of DACA and whose DACA work permit and protection expired or were terminated.

8. Will DACA beneficiaries be able to apply for advance parole?

The injunction order does not cover advance parole and USCIS is not ordered to adjudicate any advance parole. Hence, USCIS will not accept applications for advance parole from DACA beneficiaries.

9. Given that the court injunction is only temporary in nature, is there a possibility that the DACA program will become law anytime soon?

President Trump met with lawmakers last week to discuss about the future of DACA and other immigration issues. There seemed to be no agreement made on the future of the DACA program. There is currently a political pressure to include DACA as a legislation into the spending bill which hopefully will happen before January 18, 2018.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw,  or 1 888 930 0808)

Categories
Global Pinoy

What undocumented immigrants face with the REAL ID Act

Share this:

Until recently, California was one of many states that issued driver licenses or identification cards (ID) that were not compliant with the REAL ID Act. But recent developments indicate that the California Department of Motor Vehicle (DMV) will begin accepting applications for IDs and driver licenses that are compliant after January 22, 2018. Who are eligible to apply for these new IDs and licenses? Will undocumented immigrants be prohibited from traveling domestically if they are not in possession of the new IDs and licenses?

The REAL ID Act

In 2005, U.S. Congress enacted the REAL ID Act upon recommendation of the 9/11 Commission to set standards for the issuance of sources of identification, such as driver licenses. This law provided minimum security standards for state-issued driver licenses and identification cards. Federal agencies are prohibited from accepting the non-compliant licenses and identification cards for official purposes including in air travel, access to military bases, most federal facilities and nuclear power plants.

The purpose of the REAL ID Act is to prevent the fraudulent issuance and use of driver licenses and identification cards. Although it was enacted in 2005, its full implementation will not take effect until October 2020. In the meantime, many states are taking steps to establish rules that will make their licenses and identification cards compliant with the REAL ID Act.

States that are working to comply with the federal law have been able to get extensions until October 2018. For this reason, states like California, are ready to release new licenses and identification cards this year that contain security features.

Minimum Requirements

To be REAL ID-compliant, the state must incorporate anti-counterfeit technology into the card, verify the applicant’s identity and conduct background checks for employees involved in issuing driver licenses.

In verifying for a REAL ID-compliant ID or license, the applicant must fall under the following 9 categories:

  1. U.S. citizen or national;
  2. U.S. lawful permanent resident or lawful temporary resident;
  3. conditional permanent resident status in the U.S.;
  4. has an approved asylum application or entered in refugee status;
  5. has a valid, unexpired nonimmigrant visa;
  6. has a pending application for asylum;
  7. has pending or approved temporary protected status;
  8. has approved deferred action status or
  9. has a pending application for adjustment of status to that of lawful permanent or conditional resident.

It is apparent from the list that only applicants who have valid and lawful presence in the United States or who are not in violation of immigration laws are permitted to apply for state licenses that are REAL ID Act compliant. Those who are unauthorized immigrants or who have fallen out status may not be eligible to apply for the REAL ID compliant licenses.

Air travelers without the REAL ID licenses/ID

Passing through security at the airport during domestic travel requires acceptable identification documents. The Department of Homeland Security (DHS) has designated several acceptable forms of identification including passports, a border ID card, or, a trusted traveler card such as Global Entry.

In 2020, only REAL ID-compliant cards will be accepted for air travel and if a traveler is out of status or is in unlawful presence, the traveler should obtain alternative acceptable identification documents, which includes a valid passport issued by the government of which he/she is a citizen.

Generally, traveling with a passport with no valid U.S. visa stamp on it does not imply unlawful status. The DHS explicitly cautioned federal agents from assuming that non-possession of REAL ID-compliant identification cards indicate that the traveler is an undocumented immigrant. However, given the current political climate, the restrictive immigration policies and the heightened immigration enforcement rules, it may be a trigger for further inquiry if the TSA or any federal agent exercises discretion of the need to determine lawful presence.

In the meantime, considering the implementation of the law is not until 2020, there is no need to change travel domestically.

Instead, it is advisable to use this time to determine whether there are legal options that one may now undertake to obtain lawful status before the full implementation of the REAL ID Act.

–

Also appears in: Inquirer.net