By Christopher Kerosky
New DACA policies by Trump Administration.
On August 24, 2020, U.S. Citizenship and Immigration Services
provided guidance on how it will implement new policies regarding the Deferred
Action for Childhood Arrivals (DACA).
· USCIS
will reject all initial DACA requests from foreign nationals who have never
previously received DACA.
· USCIS
will limit grants of deferred action and employment authorization under DACA to
no more than one year, but will not cancel any currently valid two-year grants
of DACA or associated employment authorization documents (EADs).
· USCIS
will generally reject requests received more than 150 days before the current
grant of DACA expires.
· USCIS
will only grant advance parole for travel outside the United States to DACA
recipients for "urgent humanitarian reasons" or "significant public
benefit".
The determination whether to
grant advance parole to an alien is entirely within the discretion of USCIS and
must be made on a case-by-case basis.
Some examples of circumstances
that may warrant approval include, but are not limited to, situations such as:
1. Travel to support the national
security interests of the United States;
2. Travel to support U.S. federal
law enforcement interests;
3. Travel to obtain
life-sustaining medical treatment that is not otherwise available to the alien
in the United States; or
4. Travel needed to support the
immediate safety, wellbeing or care of an immediate relative, particularly
minor children of the alien.
CAUTION: DO NOT TRAVEL WITHOUT AN APPROVED ADVANCE PAROLE.
Applying for Adjustment
of Status following travel with Advance Parole.
Advance parole makes
some DACA recipients eligible for adjustment of status to the U.S. without a
pardon and without going through consular processing outside the US. For example, a DACA holder with a US citizen
spouse.
This means that if a
DACA recipient travels abroad and returns under a grant of advance parole, he
or she can apply for adjustment of status in the US. This is a much faster and simpler procedure
than the prior pardon procedure, which required the applicant to obtain a
pardon (which were often denied) and to go through a lengthy procedure at a
Consulate abroad, like Ciudad Juarez.
Now, DACA holders
with a US citizen spouse can apply for permanent residence in San Francisco and
generally obtain it in approximately one year.
There were many cases of DACA recipients successfully adjusting status
after traveling abroad on advance parole between 2013-2017 before Trump stopped
issuing Advance Parole to DACA holders.
Of course, anyone contemplating travel outside the US or
applying for permanent residence should get competent legal advice before doing
so.
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CHRISTOPHER A.
KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration
law for over 25 years. He graduated
from University of California, Berkeley Law School and was a former counsel for
the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has
been recognized as one of the top lawyers in Northern California for over 10
years by “Super Lawyers”. See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html
WARNING: The foregoing is a
summary generally discussing legal issues. It is not intended to be a
substitute for legal advice. We recommend that you get competent legal advice
specific to your case before filing any application or petition.
