Tuesday, April 2, 2013

DACA Post-Filing Tips

            Remember when you filed for DACA?  You were extremely excited, anxious and ready to take the next step in your life’s journey.  Then reality set in: one month passed.  One month turned to two.  Two months turned to three, and so on.  Suddenly, you felt like the process was taking forever. 

Sometimes dealing with the U.S. Citizenship and Immigration Service (USCIS) can be extremely frustrating.  No matter what you are told by friends or family, no path to getting immigration benefits is the same.  For some the path is smooth and devoid of any problems.  For others the path can be bumpy and frustrating.  Therefore, the following are some important tips for those of you who have already received your DACA approval, and also, for those who are still dealing with the maddening bureaucratic delays or denials from USCIS.

I received the dreaded Request for Additional Information (RFE), what should I do?

            First thing you should not do is panic.  RFE’s are commonly issued in all sorts of immigration applications/petitions.  You should sit back and read the request to figure out what exactly the government is asking for.  If you have previously engaged an attorney, you should speak with the attorney’s office to make sure that they are aware of the RFE and that they received a copy.  Note the deadline (due date) on the RFE and put it on your personal calendar.

            Read the RFE carefully.  Address any of the concerns raised in the RFE by gathering up any additional evidence that the USCIS is looking for.  Think outside the box when you are trying to address any of the concerns raised in the RFE.  Get any credible corroborating evidence that will supplement what you may have already submitted to USCIS.   If you have been working with an attorney, you should meet with the attorney and review the request.  Make sure to respond in a timely manner so you don’t delay the processing further. 

            I was denied, what should I do?

            Again, do not panic.  I know this is easier said than done, but you need to first review the denial carefully.  If you have an attorney, spend time reviewing it with the him or her.  You cannot file a motion to reopen or reconsider a denial, nor can you appeal it. USCIS has made it clear that it will not review its discretionary determinations. USCIS states on its website:

You may request a review using the Service Request Management
Tool (SRMT) process if you met all of the process guidelines and
you believe that your request was denied due to one of the following errors:

·         USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
·         USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

You can re-file if you are denied and feel that it was incorrect or that you have additional evidence to provide to the government that may not have been available for the first application.  A new filing will need new forms and fees, along with all the documentation again.

Remember that DACA is a temporary program.  It is not the DREAM Act.  Not getting approved for DACA does not mean that you would be precluded from qualifying for the DREAM Act or any other future immigration legislation.  Therefore, do not lose hope.  Stay optimistic that we will get comprehensive immigration reform this year and you will not need to be completely dependent upon DACA.

            I was approved! Now what?

            Once you receive your employment authorization document (EAD), make sure to review the card to make certain that all the information is correct.  If there is incorrect information on the card due to USCIS error you should apply for a replacement without a fee via form I-765.  Make a copy of the card (front and back side) for your own records.  Make note of the expiration of the card and calendar a reminder that you will need to file for a renewal, assuming there is no intervening legislation that will make renewing DACA moot.

            Apply for a Social Security Number.  You can locate the nearest Social Security office at www.socialsecurity.gov/locator.  Here is the form that needs to be completed: http://www.socialsecurity.gov/online/ss-5.pdf.  Review this pamphlet: http://www.socialsecurity.gov/pubs/deferred_action.pdf.   If you have an Individual Taxpayer Identification Number (ITIN) the Internal Revenue Service provides the following advice about voiding it:

Once you receive a SSN, you must use that number for tax purposes
and discontinue using your ITIN.  It is improper to use both the ITIN
and the SSN assigned to the same person to file tax returns.  It is your responsibility to notify the IRS so we can combine all of your tax
records under one identification number.  If you do not notify the IRS
when you are assigned a SSN, you may not receive credit for all wages
paid and taxes withheld which could reduce the amount of any refund
due.  You can visit a local IRS office or write a letter explaining that
you have now been assigned a SSN and want your tax records combined. 
Include your complete name, mailing address, and ITIN along with a copy
of your social security card and a copy of the CP 565, Notice of ITIN Assignment, if available.  The IRS will void the ITIN and associate all
prior tax information filed under the ITIN with the SSN.  Send your letter to:

                                        Internal Revenue Service
                                        Austin, TX 73301-0057

            Apply for a driver’s license.  Depending on your state’s law you should go to the nearest Department of Motor Vehicles (DMV) and apply for a driver’s license.  For most states the EAD plus Social Security card should be sufficient documentation for a driver’s license.  If you live in either Arizona or Nebraska, these states do not currently issue driver’s licenses to DACA grantees.  There is a class-action lawsuit pending in Arizona against Governor Jan Brewer’s unconstitutional executive order denying DACA recipients driver’s licenses. 

            Should I apply for advance parole (travel permission for exiting and re-entering the United States)? 

The USCIS answers this question on their Frequently Asked Questions (updated 1/18/2013):

Not automatically. If USCIS has decided to defer action in your case
and you want to travel outside the United States, you must apply for
advance parole by filing a  Form I-131, Application for Travel Document
and paying the applicable fee ($360). USCIS will determine whether your
purpose for international travel is justifiable based on the circumstances
you describe in your request. Generally, USCIS will only grant advance
parole if your travel abroad will be in furtherance of:

·         humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
·         educational purposes, such as semester-abroad programs and academic research, or;
·         employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Travel for vacation is not a valid basis for advance parole.

You may not apply for advance parole unless and until USCIS defers
action in your case pursuant to the consideration of the deferred action for childhood arrivals process. You cannot apply for advance parole at the same
time as you submit your request for consideration of deferred action for
childhood arrivals. All advance parole requests will be considered on a
case-by-case basis.

If USCIS has deferred action in your case under the deferred action for
childhood arrivals process after you have been ordered deported or removed,
you may still request advance parole if you meet the guidelines for advance
parole described above. However, once you have received advance parole,
and before you actually leave the United States, you should seek to reopen
your case before the Executive Office for Immigration Review (EOIR)
and obtain administrative closure or termination of your removal proceeding.

            If you do plan on applying for advance parole, it is highly recommended to speak to legal counsel because there are serious inadmissibility bars that you could subject yourself to if you exit the United States.

            Where do we go from here?

            This is an exciting and nerve-wracking time no matter whether you have been approved for DACA, still awaiting a decision or are dealing with a denial.  You need to keep apprised of any changes in agency policy or the law.  You should speak to your congressional representatives about the need for immigration reform and how it would benefit yourself and your family members or friends.  DACA is only a temporary fix and does not help everyone.  Therefore, do not stop advocating for CIR.  Stay optimistic and remain vocal!