July 3, 2014 by Noel Pangilinan
By Cristina A. Godinez, Esq.
Timing is of the essence with regard to the renewal of the Deferred Action for Childhood Arrivals (DACA), with expirations projected to begin by September.
DACA grantees must check their I-797 DACA Approval Notices and their Employment Authorization Document (EAD cards) immediately to ascertain when they should file their renewal applications.
Here are five essential pointers to determine the best time to file your DACA renewal application.
1. File the renewal application before your DACA expires. It probably goes without saying but this gentle reminder won’t hurt. The renewal application must be filed while the DACA is still in effect. This means that even if it is already after 120 days from the initial DACA expiration, initial DACA grantees should file their renewal application. Once the DACA status expires, there is nothing to renew.
2. Do not file the DACA renewal application too soon. Early does not necessarily mean timely, at least when it comes to the DACA renewal application. The US Citizenship and Immigration Services (USCIS) has cautioned against filing the renewal application too early – and too early means more than 150 days from the DACA expiration. If the renewal application is filed too early, the USCIS will reject the application and return it to the applicant with instructions to re-file it.
For instance, if your DACA status expires on December 15, 2014, filing the DACA renewal application on July 17, 2014 (or earlier like July 1, 2014) may result in rejection because the renewal application is filed 151days before the DACA expiration.
3. Do not file the DACA renewal application too late. The USCIS will take approximately 120 days (four months) to process DACA renewal applications. Filing the DACA renewal too late will result in accruing unlawful presence and loss of work authorization if the application is not approved in time.
If the DACA expires while the application is pending, the applicant accrues unlawful presence from the time of the DACA expiration up to the DACA renewal. The exception to this is when the applicant is under 18 years old at the time the DACA renewal application is filed. In any case, the DACA renewal applicant is not allowed to work until s/he gets the EAD card, regardless of the applicant’s age when the renewal application was filed.
4. Find the 30-day sweet spot. What are we to do if filing the DACA renewal application too early or too late won’t do us any good? We look for that sweet spot: the 30-day filing window that will almost surely avoid the accrual of unlawful presence and prevent an interruption of work authorization, in situations where it will take the USCIS a tad longer to decide on the renewal application.
This sweet spot is between 120 to 150 days before the initial DACA expires and may trigger an automatic extension policy for a short period of time. If the DACA renewal application is filed within this 30-day filing window the USCIS has indicated that it may extend the renewal applicant’s DACA status and work authorization until the renewal application is approved.
5. Initial DACA has expired, now what? Even if the initial DACA application has expired for a full year, there is still a chance to obtain deferred action and work authorization. The USCIS issued instructions saying that such DACA recipients must submit their renewal as if they were initial applications. The same applies to those who have been granted their initial DACA by the Immigrations and Customs Enforcement (ICE).
DACA recipients who have not yet applied for renewal should expect to receive a notice from the USCIS within 100 days from their DACA expiration reminding them to file their renewal applications.
Cristina A. Godinez is an immigration attorney who handles cases involving work visas, family and employer-sponsored green cards and naturalization, as well as cases involving humanitarian immigration benefits. She serves as ad hoc coordinator at the Migrant Center of the St. Francis of Assisi Church in New York City. She is a member of the American Immigration Lawyers Association.