Statutes of Liberty: New DACA Applications and New Travel Permits — File Away!

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Trump Administration continues to receive major blows in federal court, both in the election and immigration contexts. On December 4, 2020, Federal District Judge Nicholas Garaufis ordered that the Trump Administration revert the Deferred Action for Childhood Arrivals (DACA) program back to its original incarnation from 2012.

First, we’ll give you the TL;DR on what Judge Garaufis’ decision means for immigrants right now, and then we’ll give you a summary of how we got here.

New DACA Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting new DACA applications. If you qualify for DACA, find a lawyer and apply now. Judge Garaufis’s decision may not last forever, and it’s in your interest to protect your legal rights. If you can’t afford us — and our prices are pretty competitive! — we’ll gladly refer you to a nonprofit that can help you.

To qualify for DACA, you must meet the following criteria:

  1. Born on or after June 15, 1981
  2. Came to the U.S. before the age of 16
  3. Was in the U.S. on June 15, 2012, and is still here
  4. No proper immigration status as of June 15, 2012
  5. High school graduate, enrolled in high school, recipient of GED, enrolled in GED program or honorably discharged from the U.S. military
  6. No significant criminal record

Consult a lawyer for details.

New Travel Permit Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting travel permit applications for people who already have DACA. This can be extremely useful both for intrinsic travel purposes — some of our DACA recipients haven’t seen family at home since they were little kids! — and for legal reasons.

To make a long story short, traveling with a permit puts you in a good position to apply for a green card later. So, if you already have DACA, find a lawyer and consider applying for a travel permit now. Again, if you can’t afford us, we’ll gladly refer you to one of the many nonprofits doing great work in our area.

How We Got Here

Our loyal ARLNow readers know there has been a lot of back and forth regarding the Obama Administration’s DACA program. The DACA program allows certain undocumented people who arrived here as children to apply for work permits and avoid deportation, as long as they are in high school or have graduated from high school.

In September 2017, the Trump Administration announced the end of the program. Immigration advocates immediately filed lawsuits to stop the Trump Administration from ending legal protections for hundreds of thousands of DACA recipients. Throughout the pendency of the litigation, the Department of Homeland Security (DHS) stopped processing applications for new applicants and only processed renewals for people who had DACA before. DHS also stopped processing travel permits except for emergency purposes.

This summer, the Supreme Court dealt the Trump Administration a major blow in their plan to wind down the program. The Supreme Court ruled that the Trump Administration could in fact shut down the program — but that the Trump Administration failed to follow the proper procedures in doing so. The DACA program lived to see another day.

In July 2020, Chad Wolf, the Acting Secretary of DHS, issued a memorandum ordering that first-time DACA applications must be rejected in response to the Supreme Court’s ruling. Again, lawsuits followed. In November, Judge Garaufis found that Chad Wolf is not acting in an official capacity as dictated by the Homeland Security Act, and therefore the Wolf memorandum is not binding.

Judge Garaufis’s most recent order on December 4 ordered DHS to begin processing initial DACA applications as well as travel permit applications again. His order also requires DHS to issue DACA work authorization for a period of two years instead of one. This order essentially sent the DACA program back in time, as DHS is now required to process applications as if we were still living between 2012 and 2017.

We expect for Judge Garaufis’ order to remain in force through the New Year. We further believe that the incoming Biden Administration will refuse to continue the ongoing litigation, therefore keeping the DACA program intact as it was originally put into place. But the law is not always predictable, and it would be wise to apply for benefits now, while it remains certain that those benefits are available.

As always, we welcome our readers’ comments and will do our best to respond!