News & Resources

Looking Ahead to the DACA Renewal Process

USCIS has issued a draft of the new Form I-821D to be used to renew Deferred Action for Childhood Arrivals (DACA) status and has invited comments and proposals from the legal community.  Once USCIS  issues the final version of the  form, current DACA grantees may use the form to renew DACA status.  Requests for renewal may not be made on the current form that is available on the USCIS website.

Until USCIS releases the final renewal form, it is impossible to state with certainty what the DACA renewal process will exactly entail.  However, here is what we do know so far:

  • Applications to renew DACA and employment authorization may be filed up to 4 months (120 days) before the date of expiration of current DACA status (that is–4 months prior to the expiration of your employment authorization document).  Applications filed before the 4 months will be rejected.
  • The application fee will remain the same – that is, $465.00.
  • You must provide evidence that you have maintained continuous residence in the United States since you applied for DACA status.
  • You will not need to re-submit documents you already submitted with your previous DACA request that was approved.  You will need to submit any new records pertaining to a criminal record or removal proceedings.

  • You must not have left the United States since your DACA approval unless you applied for and were granted permission to travel (“advance parole”).
  • If at the time that you applied for DACA you were “still in school,” you must now provide evidence that you either still remain in school or that you have completed the course of study.  If you are currently enrolled in a GED or some equivalent program, you will need to provide evidence that the program is publicly funded.
  • If you have been arrested and/or charged with a crime since you obtained DACA status, your ability to renew DACA status may be jeopardized.  If you have a new arrest, you should consult an immigration attorney as soon as possible to determine your eligibility to renew DACA status.  You will need to provide certified records of your arrest or conviction.  If you do not have the certified records, you should take immediate steps to obtain them.

Since USCIS will not be accepting renewal application prior to the 120 days before your current employment authorization expires, one can only hope that USCIS will adjudicate the renewal application within that time period.  They have not announced whether they will issue an interim employment authorization if it takes them longer to adjudicate the application.  Therefore, every person who has been granted DACA should renew their  DACA status as soon as they become eligible to do so.

Supreme Court heard arguments today on an issue that will impact “aged-out” children.

Today the Supreme Court (SCOTUS) heard arguments in the case Mayorkas v. De Osorio which addresses the question of whether children who are derivative beneficiaries of preference category family petitions can automatically convert  their petitions to a different petitioner and retain the same priority date.  The transcript of the argument can be found here. It’s dense reading but worth the slog.

If the SCOTUS issues a favorable decision, it could mean that derivative beneficiary children who age out (turn 21) may have the original petition convert to that of the parent who has just newly become a lawful permanent resident and use the priority date of the original petition. To give an example–say Samantha, a US citizen, files a visa petition for her brother Henry (this would be a F4 preference category petition), and Henry has a 16 year old son named Jimmy. When the visa petition finally becomes current after many years of waiting, Henry can seek an immigrant visa but under current law, little Jimmy who now is 27 and goes by “Jim” can no longer immigrate as a derivate child  beneficiary. If SCOTUS rules favorably, then the US government will treat the petition filed by Aunt Samantha as if it was filed by Jim’s father with the priority date of the original petition filed by Samantha.  This would mean under current visa availability, a visa number would be immediately available for Jim and he will be able to join his father with little or no delay. The SCOTUS may rule this way or they could possibly require that an actual petition has to be separately filed by the lawful permanent resident father. Either way, it would be a great victory for aged-out children everywhere!  Stay tuned– the SCOTUS has until June 2014 to issue its decision.