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

September 18, 2017

 

On September 5, 2017, the Trump administration rescinded DACA, providing a six-month period to "wind down" the program. A September 5, 2017 memo by DHS Acting Secretary Elaine C. Duke officially rescinds the June 15, 2012, memorandum that created the DACA program, and establishes the following DACA protocols:

Read the DHS DACA Rescission Memo

  • Those currently enrolled in DACA will be able to continue working until their permits expire
  • DHS will no longer accept new DACA applications filed on or after September 6, 2017
  • DHS will continue to adjudicate on a case-by-case basis any new DACA applications properly filed and received by USCIS on and before September 5, 2017
  • Eligibility for DACA extensions
    • Those whose DACA permits expire by March 5, 2018, may apply for two-year DACA extensions if they apply for the extension by October 5, 2017
    • Those whose DACA permits expire on and after March 6, 2018 will not be eligible to file DACA extension applications
    • DHS will continue to adjudicate DACA extension applications that had been properly filed and received by USCIS on and before September 5, 2017, even if the current DACA approval of the applicant expires after March 5, 2018
     
  • DHS retains its discretionary authority to terminate or deny all types of deferred action, including DACA, when it determines that termination or denial is appropriate in particular cases
  • DACA Advance Parole:
    • Will "generally honor" previously approved DACA advance parole for the stated validity period, noting that CBP retains its authority to determining the admissibility of anyone presenting themselves at a U.S. port of entry, and that USCIS retains the right to revoke or terminate an advance parole document at any time
    • Will not approve any new Form I-131 applications for DACA advance parole received after September 5, 2017
    • Will administratively close all pending Form I-131 applications for DACA advance parole not approved before September 5, 2017, and refund the applicant's filing fee
     

The six-month period established by this DACA phase-out should be used by Congress to consider legislation that will address the needs of DACAmented individuals. NAFSA is supporting passage of the Dream Act of 2017 (S. 1615; H.R. 3440). Get involved now by encouraging your representatives to vote in favor of the Dream Act. You can do that through NAFSA Connecting Our World: Support the DREAM Act.

NAFSA Connecting Our World: Support the DREAM Act.

A number of parties have also filed lawsuits in federal court against the administration's roll-back of DACA.

In the meantime, NAFSA encourages members to advise DACA students to seek the counsel of an experienced immigration lawyer (the American Immigration Lawyers Association (AILA) web tool at www.ailalawyer.org can be a good place to look for an immigration lawyer, for students at schools that do not maintain a list of immigration lawyers) or or recognized/accredited organization or representative, who will be best positioned to help sift through possible scenarios, weigh risks, and evaluate the person's individual situation given the sunset of the DACA program.

DACA Students and Study Abroad

Prior to the September 5, 2017 rescission of DACA, DHS had been approving applications for travel authorization called advance parole, which DACAmented students could use to travel abroad for "education, humanitarian and work purposes," including participating in study abroad programs. The September 5, 2017 DACA rescission memo impacts DACA advance parole in the following ways:

  • DHS stated it will "generally honor" previously approved DACA advance parole for the stated validity period, but noted that CBP retains its authority to determine the admissibility of anyone presenting themselves at a U.S. port of entry, and that USCIS retains the right to revoke or terminate an advance parole document at any time
  • USCIS will not approve any new Form I-131 applications for DACA advance parole received after September 5, 2017
  • Will administratively close all pending Form I-131 applications for DACA advance parole not approved before September 5, 2017, and refund the applicant's filing fee

Even before September 5, 2017, reentry to the United States could never be guaranteed, even with advance parole authorization and the approval of a university or education abroad office. NAFSA strongly encourages DACAmented students to seek the advice of an immigration attorney to weigh this risk before departing the United States to participate in a study abroad program. DACA students with an approved grant of advance parole who are currently studying abroad should also consult with their immigration lawyer about returning to the United States.

Background

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 could prove through verifiable documentation that they met the criteria were eligible to receive deferred action on a discretionary, case-by-case basis, for a period of two years, subject to renewal, and were 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."

On September 5, 2017, the Trump administration rescinded the DACA program, providing a six-month "winding down" period. A September 5, 2017 memo by DHS Acting Secretary Elaine C. Duke officially rescinds the June 15, 2012, memorandum that created the DACA program, and establishes a six-month DACA "wind-down" period. See the notes above for details.

Considering options for the future

What's in store for the future for DACA students? 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. An experienced immigration lawyer can help sift through possible scenarios, weigh risks, and evaluate the person's individual situation.

DACA students may also be concerned about whether the information they provided as part of their DACA applications will be used for enforcement purposes once their DACA benefits end. You may want to share the following DHS FAQs with students to discuss with their lawyer:

Q7: Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?

A7: Information provided to USCIS in DACA requests will not be proactively provided to ICE and 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 ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). 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.

Q8: Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?

A8: Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security of public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. 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.

There are also efforts to pass a statute that would protect DACA recipients and DACA-eligible individuals. NAFSA is supporting passage of the Dream Act of 2017 (S. 1615; H.R. 3440). Get involved now by encouraging your representatives in Congress to vote in favor of the Dream Act. You can do that through NAFSA Connecting Our World: Support the DREAM Act.

Basic DACA Eligibility Criteria (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 renew DACA benefits during the six-month DACA rescission period 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.

Under the program, 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.
  • Are at least 15 years of age at the time of applying for DACA benefits (some exceptions apply)

DACA benefits are granted in increments of two years. Remember, though, that 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-related benefits should be counseled to consult an experienced immigration lawyer or recognized/accredited organization or representative for legal advice or for legal assistance. Individuals 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!