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)
