Last week, USCIS published updated FAQs on the Deferred Action for Childhood Arrivals (“DACA”) program, providing additional guidance on unclear provisions of the DACA program.
First, USCIS clarified that DACA is a form of deferred action in general and is identical to the concept of prosecutorial discretion. Most importantly, USCIS stated that individuals who have received deferred action are considered to be lawfully present in theUnited States during the period that deferred action is granted.
During the period that the alien’s DACA application is being considered, however, unlawful presence (if applicable) continues to accrue. The applicant’s lawful presence under DACA does not cure past or future problems with unlawful presence and does not confer lawful status, a related but different concept.
When applying for DACA, the alien must also prove continuous presence in theUnited States. USCIS clarified that a “brief, casual and innocent” departure does not interrupt continuous presence, and is proven by showing:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before the alien was placed in exclusion, deportation or removal proceedings; and
4. The purpose of the absence and/or the alien’s actions while outside the United States were not contrary to law.
For DACA applicants who wish to travel, USCIS noted that individuals must first receive deferred action and then apply for advanced parole. USCIS also stated that advanced parole is generally granted only for certain types of travel: humanitarian purposes (medical treatment, funeral services for a family member, or visiting an ailing relative), educational purposes (semester-abroad programs and academic research), or employment purposes (overseas assignments, interviews, conferences, training, or meetings with clients overseas). USCIS made clear that traveling for vacation is “not a valid basis for advance parole.”
USCIS also released updated statistics on the DACA program. As of January 2013, USCIS has received just over 400,000 DACA applications. Of those, approximately 14,000 petitions have been rejected. The remainder – nearly 395,000 applications – are still being processed. During the November DACA Stakeholder meeting, USCIS officials stated that the time goal for processing DACA applications is four to six months, not including time periods to process either a Request for Evidence or a Notice of Intent to Deny. In cases involving those additional processes, applicants can expect lengthier delays.