US Citizenship and Immigration Services (USCIS) announced release of a revised Form I-821D for “Consideration of Deferred Action for Childhood Arrivals” (DACA).  The first DACA approvals will begin to expire in September 2014.  I previously reported on the process for those DACA approvals that were obtained from ICE.  The majority of recipients received DACA from USCIS.  In fact, USCIS reports that “[a]s of April 2014, more than 560,000 individuals have received DACA.” In announcing the renewal process, Homeland Security Secretary Jeh Johnson stated “[d]espite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our border illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws and should be treated differently than adult law-breakers…By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

Keep in mind that DACA is a discretionary decision by USCIS (or ICE) to defer removal.  It is not a green card, citizenship or other long term stay.  It is issued in two-year increments for now. Applicants must have come to the US before age 16; must be under 31 at time of initial application, must have resided continuously in the US since June 15, 2007, were present in the US on June 15, 2012, and cannot have been convicted of a felony, a “significant” misdemeanor, or three or more misdemeanors. Further, they cannot “otherwise pose a threat to national security or public safety.” Applicants must have completed high school, be in college, be in school, or have obtained a GED certificate, or have been honorably discharge from the Coast Guard or Armed Forces.  Individuals who have not yet sought DACA who meet these requirements, can still apply.

To obtain a renewal, the applicant must not have departed the US on or after August 15, 2012 unless previously approved for an advance parole travel document.  Advance parole is only available to those with humanitarian, educational or employment reasons – not for pleasure travel.  Work permits based on economic necessity are included in the DACA process.  Information about initial DACA applications and renewals can be found here.

Some of the issues (this is a nonexhaustive list) where potential applicants should seek legal advice include:

a. overall eligibility for the program and assistance with the application process if not confident to handle alone;

b. analysis of other immigration options, including through other family members;

c. analysis of whether trips abroad were “brief, innocent and casual” in determining proof of continuous residence since June 15, 2007;

d. eligibility for advance parole; analysis of trip issues since DACA was granted;

e. analysis of ANY type of criminal history, including charges that were “dismissed” because court dismissals can mean various types of proceedings.  Immigration analysis of crimes is very different than what happens in a criminal court room.

f. analysis ANY type of activities that might be perceived as a “threat to national security or public safety.” Examples are gang membership, DUI, negligent driving, domestic violence, and more.

g. difficulties proving continuous residence or physical presence for the qualifying periods/dates;

h. any prior order of removal, or departure from the US after expiration of a period of voluntary departure/return;

i. qualifying age and identity issues;

j. previous encounters with CBP, ICE, Immigration Courts, prior immigration applications;

k. false claims to U.S. Citizenship (or green cards) on I-9 forms, tuition applications or other government benefits, licenses, etc. Also, if an individual ever lied on a visa or other immigration benefit application or made oral false statements to a border officer, consular or USCIS officer, or registered to vote or actually voted in the US, be sure to seek legal advice.

l. failure to pay taxes, failure to file tax returns, or improperly filed returns, etc.;

m. review of previously denied applications for DACA.

All kinds of interesting issues have emerged since the DACA program begain two years ago. Not all cases are “straight forward.” Many have issues that require forceful advocacy. Applicants should have a good understanding of the pros and cons of applying and any potential risks.