On August 24, 2020, USCIS made an announcement and issued a memorandum explaining how DACA initial and renewal applications will be treated going forward. For the most part, the new memorandum maintains the status quo we have been under for the last several years. There are some good and bad changes depending on the case, but the worst part is that USCIS will be rejecting and ending initial DACA applications, even when submitted before the date of the memorandum.
The memorandum lays out several important changes, listed here:
The worst news is that all the pending initial applications for DACA, especially following the Supreme Court’s decision and up to the date of the memo, are going to be rejected or terminated. This action is likely illegal. Since the Supreme Court’s decision, or perhaps a bit later, the only DACA guidance in effect has been the original 2012 memorandum and FAQ which established the program. USCIS has arbitrarily decided to simply sit on new DACA initial applications and not even to process the fees, much less the applications.
While USCIS does get to set certain rules, they cannot flout their own policy guidance. Those individuals who had filed DACA initial applications should consider bringing lawsuits under the Administrative Procedures Act. If the struggles of the Trump Administration has proven one thing, it’s that you can’t sit and wait for USCIS to make the right decision. The only way to force the government to obey the law is through Congress or the Courts. Congress is not likely to make any changes this year, and so it falls to individuals to bring lawsuits to protect their rights.
Some good news from the memo is that advance parole is still available, although the standard seems to be getting higher. USCIS notes that advance parole for those individuals who only have DACA is an “extraordinary privilege” and that they should be assessed in keeping with other parole requests under INA Sec. 212(d)(5), which is going to be higher than previous DACA advance parole standards. The memo mentions that employment, visiting family, and vacation are not valid reasons. Some examples of valid reasons include: