DACA Resource Page: For International Student Advisers and Education Abroad Advisers

February 26, 2017

 

Pursuant to a June 15, 2012, memorandum issued by the Secretary of the Department of Homeland Security, individuals who came to the United States before they were 16 years of age and who meet certain other conditions will be considered for relief from removal from the country or from being placed into removal proceedings. Those who can prove through verifiable documentation that they meet the criteria will be eligible to receive deferred action on a discretionary, case-by-case basis, for a period of two years, subject to renewal, and will be eligible to apply for work authorization. This process is referred to as Deferred Action for Childhood Arrivals (DACA).

The DACA program was implemented in 2012 as a policy decision of the Obama administration. Unlike the DREAM Act, any version of which would have become statutory law had it been passed by Congress (it was not), DACA is not a law. It is a direction to DHS bureaus that they exercise their inherent prosecutorial discretion to "defer action" on removing childhood arrivals who meet the conditions specified in the DACA policy memo. The June 15, 2012, memorandum that instituted DACA was careful to note that deferred action was to be granted only on a "case-by-case basis," and that the memorandum conferred "no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here."

The future of DACA

As a policy decision of the executive branch, DACA can be amended, discontinued, or revoked at any time, either by the administration that created it, or by any subsequent administration.

  • The nature of President Trump's past statements during his campaign regarding the Obama administration's 2014 move to expand DACA and create a DAPA program for the parents of childhood arrivals does indicate that his administration will revisit the current DACA program.
  • For the time being, DACA remains in place. A 2/20/2017 DHS memo implementing Executive Order 13768 states that EO 13768's rescission of existing guidance and directives that conflict with the executive order's directive to enforce all immigration laws does not apply to the DACA and DAPA programs, but that DACA and DAPA "will be addressed in future guidance."
  • An unverified, leaked draft executive order dated January 23, 2017 and entitled "Ending Unconstutional Executive Amnesties" would purportedly rescind the prior administration's June 15, 2012 DACA memo and its November 20, 2014 DAPA memo, but allow EADs already issued to remain valid but not permit them to be extended. The issuance of DACA advance parole would also be halted. Remember, however, that it has not been verified that this leaked draft has been considered by President Trump, and that DACA benefits have not yet been changed.

Some common questions

So, what do you tell a student who has been granted DACA benefits, who asks you about what is in store for the future?

First, since the outset of the DACA program NAFSA has encouraged members to advise students interested in DACA benefits to seek the counsel of an experienced immigration lawyer. That advice is even more important now.

Second, having a structural approach to the question can help the student analyze his or her options, and have a more fruitful discussion with immigration counsel. Here is a suggested structure to consider, along with responses to some common questions.

What is the range of things that could happen?

To start, consider the three benefits of DACA:

  • Deferred Action itself, i.e., a deferral of the government taking steps to deport an otherwise removable alien, granted in 2-year increments
  • Employment authorization, for those who requested it
  • Advance parole travel authorization, for those who requested it

Next, consider possible actions that would be in the discretion of any administration to take (from easiest to more difficult):

  • Continuing DACA unchanged
  • Discontinuing DACA as of a certain date, but allowing benefits already granted to continue for the remainder of the period already granted
  • Revoking DACA benefits already granted
  • Using individual data from DACA applications for enforcement purposes

How easy would it be to discontinue DACA?

Since the DACA program was created through policy announcements, rather than by statute (Congress, bound by the legislative process) or regulation (Agencies, bound by the Administrative Procedure Act), it can be changed, discontinued, or revoked through the same channels, as easily as it was created.

Even under the current DACA program, DACA FAQs state,

"Q27: Can my deferred action under the DACA process be terminated before it expires? A27: Yes. DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS's discretion."

What is the soonest the new administration could take action to change DACA benefits?

The transfer of power to the new administration officially occurred when Donald J. Trump took the oath of office on inauguration day, January 20, 2017. When asked about "dreamers" a January 25, 2017 interview with ABC’s David Muir, President Trump said he’d "be coming out with policy on that over the next period of four weeks." Read the interview transcript on the ABC website. It is still too early to say what changes will occur, or when.

Advance parole for study abroad

In immigration law, it is easier to exclude someone from entering the United States than it is to remove them from the United States. You have heard of due process, and one way to think of this is that a non-U.S. citizen who is outside the United States is due less process than one who is physically present in the United States.

Technically, when someone is "paroled" into the United States they are considered to not have entered, from a legal standpoint, which means that the lesser standards of exclusion could be applied, rather than the more complex standards of removal. For example, an individual does not generally have a right to a hearing before an immigration judge while in exclusion proceedings, but usually does have that right in removal proceedings.

Using advance parole could increase the risk for an undocumented individual, especially if she finds herself outside the United States after the transition to the new administration. Any student wanting to use DACA advance parole to study abroad would do best to rethink that plan under the counsel of an experienced immigration lawyer.

Employment authorization

The impact on employment authorization depends on what action the new administration takes. For example, it is one thing if it simply lets work authorization that has already been granted expire on the EAD card expiration date, and not allow for renewal thereafter. It is another thing if the administration decides to revoke employment authorization before it expires. To do that, the administration would likely have to use the employment authorization revocation provisions of 8 CFR 274a.14(a) or 8 CFR 274a.14(b).

Facing removal from the United States

Without DACA, individuals would revert to the same undocumented status they held before DACA, and would have the same risk of removal as any other individual without status.

One question of concern is whether the new administration would take the drastic action of using information submitted as part of the DACA application to flag individuals for enforcement. Under the current DACA program, USCIS stated that even in cases where an applicant's DACA request was denied, "If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances." USCIS was able to make this assertion, however, with reference to two other DHS policy memos issued under the Obama administration:

  • A November 20, 2014 memo, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants; and
  • A November 7, 2011 memo, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens

The following current DHS DACA FAQ goes into additional detail. Note the second paragraph, though, which states that the referral/disclosure policy "may be modified, superseded, or rescinded at any time without notice."

Q10: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?

A10: Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS's Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

In a December 30, 2016 letter in sent in response to a letter of concern from 111 members of Congress, DHS Secretary Jeh Johnson stated that, "We believe these representations made by the U.S. government [i.e., that DACA data should not be used for enforcement], upon which DACA applicants most assuredly relied, must continue to be honored." As with all policies from a prior administration, though, a new administration may revisit these memos and reset DHS enforcement priorities.

A decision to forward immigration benefits application information to the enforcement branch, however, would seem to undermine the trust an applicant has in the system, and it is still too early to say if the new administration will go in that direction.

Considering options for the future

DACA recipients and other individuals who would qualify for DACA benefits should consider consulting with an experienced immigration lawyer, who can help sift through possible scenarios and evaluate the person's individual situation. DACA students can also talk to their school administration, to see if the school might be considering measures to assist them in continuing their studies should DACA benefits end.

There are also efforts to pass a statute that would protect DACA recipients and DACA-eligible individuals. Senators Richard Durbin (D-Illinois) and Lindsey Graham (R-South Carolina) have introduced S.3542: A bill to provide provisional protected presence to qualified individuals who came to the United States as children. The senators have stated that if the bill does not move before the end of the 114th Congress (which is likely), they would reintroduce it next year in the 115th Congress.

DACA program basics (for reference purposes)

The information presented below has been collected to provide clear information to NAFSA members and other international education professionals regarding the DACA program. The information is not intended to constitute legal advice and should not be relied upon as such. Please note that while NAFSA aims to help student advisers become aware of how the DACA program works, individuals who wish to assess their eligibility or to apply for or renew DACA benefits should be counseled to consult an experienced immigration lawyer or recognized/accredited organization or representative for legal advice or for legal assistance in applying for any DACA benefit.

Resources

Basic DACA Eligibility Criteria

Starting August 15, 2012 qualified individuals became eligible to request DACA consideration if they:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching their 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  • Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
  • action (although they do not need to be 15 years of age or older at the time of filing their request if they are in removal proceedings, have a final removal order, or have a voluntary departure order).

DACA benefits are granted in increments of two years. Additional information and application forms are available on the USCIS DACA webpage.

Caution: Deferred action is a discretionary benefit for individuals who would otherwise be removable from the United States. USCIS will decide applications on a case-by-case basis. Although student advisers may wish to be generally aware of how the program works, individuals who wish to assess their eligibility for DACA or DACA-related benefits like advance parole travel authorization, or to apply for or renew DACA benefits, should be counseled to consult an experienced immigration lawyer or recognized/accredited organization or representative for legal advice or for legal assistance in applying for this benefit. Individuals who believe they are eligible should also be aware of immigration scams. USCIS urges individuals to visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services. Advisers may also want to direct people to the American Immigration Lawyers Association's (AILA) AILA Consumer Advisory: Deferred Action for Certain Young Immigrants: Don't Get Scammed!

DACA Renewals

On June 5, 2014, the Department of Homeland Security announced the process for individuals to renew enrollment in the DACA program. According to the notice,

"U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA, to renew their deferral for a period of two years. At the direction of the Secretary, effective immediately, USCIS will begin accepting renewal requests. USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program. Individuals may request DACA renewal if they continue to meet the initial criteria and these additional guidelines:

  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

The renewal process begins by filing the new version of Form I-821D "Consideration of Deferred Action for Childhood Arrivals," Form I-765 "Application for Employment Authorization," and the I-765 worksheet. There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with an initial request, USCIS will conduct a background check when processing DACA renewals."

In its DACA renewal guidance, USCIS reminds DACA recipients that:

"If your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action. For this reason, USCIS encourages you to submit your request for renewal 120 days before your current period of deferred action under DACA expires."

Employment Authorization Under DACA

An application for employment authorization (Form I-765) is part of the DACA initial or renewal process. If USCIS approves or extends an applicant's DACA, an employment authorization document (EAD) will also be sent. DACA employment is authorized under 8 CFR 274a.12(c)(14), and is valid only during the validity period of the EAD. If the authorization expires before a DACA renewal is approved and a new EAD is received, the DACA recipient is not authorized to be employed [see 8 CFR 274a.14(a)].

Travel Authorization under DACA

DACAmented individuals may be eligible to apply for Advance Parole, which is a benefit granted by USCIS that allows the beneficiary to apply for reentry to the United States after temporary travel abroad for specific purposes. A DACAmented individual who leaves the United States without advance parole will lose DACA benefits. Advance parole does not guarantee subsequent admission into the United States, however. The inspecting immigration official may, at his or her discretion, deny parole at the port-of-entry.

USCIS provides the following Advance Parole guidance for DACAmented individuals on it's Form I-131 web page:

"Deferred Action for Childhood Arrivals: You cannot apply for advance parole while your request for deferred action is still pending. If you leave the United States while your request for consideration of deferred action is pending, your deferred action request will be denied.

Once USCIS approves your request for consideration of deferred action, you may file Form I-131 to request advance parole to travel outside of the United States. If you travel outside the United States without first receiving advance parole, USCIS will automatically terminate your deferred action. You must submit Form I-131 with specific documentation depending on the agency that deferred action in your case. If USCIS deferred action in your case, submit a copy of your Form I-797, Notice of Action. If U.S. Immigration and Customs Enforcement (ICE) deferred action in your case, submit a copy of the ICE order, notice, or letter. USCIS will only grant advance parole if your travel abroad will be for educational, employment, or humanitarian purposes. You must indicate the purpose on the Form I-131 as described below:

  • Educational purposes, such as semester abroad programs or academic research;
  • Employment purposes, such as overseas assignments, interviews, conferences, training, or meetings with clients; or
  • Humanitarian purposes, such as travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative.

Travel for vacation is not a valid purpose."

Remember that an approved advance parole document does not guarantee readmission to the United States; a separate discretionary decision is made on a request for parole at the port of entry upon return. Due to the risks that may be associated with leaving and re-entering the US, length of program, financial responsibility policies, an individual's circumstances and visa restrictions; there are a number of factors that an individual must/should consider with legal counsel before moving forward with any study abroad program. This includes a review of the DACA recipient's possible grounds for inadmissibility under the Immigration and Nationality Act (INA).

DACA Students and Study Abroad

As stated above, DHS will accept applications for Advance Parole for "education, humanitarian and work purposes" from students who have been granted deferred action under DACA. This process, however, is complicated and we strongly encourage students to seek counsel with an immigration attorney before considering study abroad as an option.

Education Abroad Considerations

  • Can the student obtain a passport?
  • Will there be visa(s) required for the program?
  • Does the airfare require students to enter countries with additional transit visas?
  • Does the program also fulfill major requirements?
  • What are the deadlines for the program? When do the students get notified they have been accepted? Will this interfere with Advance Parole requirements?
  • Does your campus offer legal support? Does your campus offer scholarships or financial aid for DACA holders?
  • Program application and compliance deadlines will run concurrent to the Advance Parole application. Is the student aware of all the upfront costs associated with both?
  • If the student does not feel comfortable with the risks, are there alternate pathways to fulfill an international component requirement?

DACA students should:

  • Refer to the US Citizen and Immigration Services (USCIS) webpage for the most up-to-date information.
  • Confirm whether or not they will be able to obtain a travel document (i.e., passport) from their country of citizenship.
  • Consult legal counsel of their own choosing if they decide to apply for Advance Parole.
  • Consult legal counsel regarding possible grounds for inadmissibility.
  • Seriously consider both best and worst case scenarios.
  • Discuss their choice with their family and loved ones.
  • Determine the application timeline for Advance Parole, and how it aligns with program deadlines/deposits. The Advance Parole application can take up to 3-4 months to process, so students should plan accordingly with study abroad application deadlines, etc.

Re-entry back into the US cannot be guaranteed, even with advance parole authorization and the approval of a university or education abroad office. Students should discuss the risks associated with re-entry with their legal counsel.

Legal Considerations

  • Does the program date overlap with a student's DACA renewal expiration?
  • Does the student have access to legal support for the Advance Parole application?
  • Has the student consulted legal counsel to determine if any pre-existing legal issues would affect their ability to re-enter the United States (grounds for inadmissibility)?
  • What happens if legislation changes while a student is abroad? Will their DACA status be jeopardized?

Financial Considerations

  • Undocumented students do not qualify for federal aid.
  • Depending on your state, undocumented students may have additional aid for higher education studies. However, the majority of these costs will be incurred at the expense of the student.
  • If your state DOES offer some financial support for undocumented students, can it be used towards study abroad programs?
  • Are your study abroad scholarships available to all degree-seeking students at your institution regardless of immigration status?
  • Applying for advance parole has an associated fee ($365) on top of DACA application/renewal fees. Is the student able to cover associated costs or is there financial support available?

Myths & Truths about DACA

  • Myth: All undocumented individuals and unaccompanied minors are eligible for Deferred Action for Childhood Arrivals (DACA).

    • Truth: There are very specific qualifications that must be met in order for undocumented individuals to apply for DACA.
     
  • Myth: All undocumented individuals who obtain DACA are granted U.S. permanent residency.

    • Truth: DACA is not a path to permanent residency; it "defers" deportation and grants undocumented individuals the ability to work via a government issued employment authorization card, which must be renewed every 2 years via United States Citizenship and Immigration Services (USCIS).
     
  • Myth: All DACAmented students are eligible for international travel for educational purposes through Advance Parole.

    • Truth: DACAmented students must apply for and be granted Advance Parole in order to travel abroad for educational purposes. There are specific qualifications that must be met in order for a DACAmented student to be granted Advance Parole. Students should consult legal counsel for specific information regarding these qualifications.