AILA Practice Alert: USCIS Taking Extreme Measures to Retrieve Erroneously Issued 3-Year DACA EAD

AILA Practice Alert: USCIS Taking Extreme Measures to Retrieve Erroneously Issued 3-Year DACA EAD

As a result of the judge's July 7, 2015 order threatening contempt citations in the ongoing litigation in Texas v. United States, USCIS advised stakeholders in a telephone call on the evening of July 13, 2015, that it is implementing additional, and in some cases extreme, steps to retrieve approximately 2,500 3-year EAD cards and DACA approvals that were erroneously issued afterthe court's February 16, 2015 injunction temporarily halting implementation of expanded DACA.

Following is a summary of the steps to date, and the steps now being implemented

Group 1: 2,000 3-year EADs that were erroneously mailed after the injunction:

  • First Letter: In May 2015, USCIS began sending letters to these 3-year EAD recipients. This first letter instructed the recipient to return the 3-year EAD and made it clear that only 3-year EADs issued after February 16, 2015, need to be returned to USCIS. Recipients were provided a postage paid envelope and were instructed to return the 3-year EAD and all approval notices to a designated USCIS service center address. No deadline was provided. USCIS received approximately 1,100 EADs from this first letter.
  • Second Letter: During the week of July 6, 2015, USCIS sent a second letter to those who had not yet returned the EAD. This letter was similar to the first letter, but stated "USCIS must receive your EAD by 7/17/15. Failure to return the invalid EAD without good cause may affect your deferred action and employment authorization." Recipients were again provided a postage-paid envelope and were instructed to return the 3-year EAD and all approval notices to a designated USCIS service center address.
  • Phone Calls: Also during the week of July 6, USCIS customer service representatives began calling affected individuals and/or their representatives providing instructions for returning erroneously issued EADs.
  • Third Letter (New): On July 13, 2015, USCIS sent a third letter to the remaining individuals for whom an erroneously issued 3-year EAD has not yet been received. These individuals are directed to appear at a USCIS field office to return their 3-year EAD, or certify that it has been returned or that it has been lost by July 27, 2015. This notice indicates that the DACA grant will be terminated, and the EAD declared invalid, effective July 31, 2015, if the recipient does not comply. Even if the individual mails the card or certification back, USCIS indicated that it will still require appearance at the field office.
  • Home Visits: USCIS also described a plan to have plain-clothed USCIS officers begin visiting individual homes to retrieve erroneously issued 3-year EADs. Initially, home visits are planned to be concentrated in Chicago, and Los Angeles, and possibly Dallas and Houston, and will focus on individuals for whom USCIS does not have a working phone number. Other areas that will be focused on include: areas where a zip code analysis shows a large concentration of recipients, and areas which are not in close proximity to a USCIS field office.

Group 2: 500 3-Year EADs that were approved and mailed prior to the injunction, returned to USCIS as undeliverable, and subsequently re-mailed after the injunction:

More recently, USCIS discovered that approximately 500 3-year EADs were approved and mailed prior to the injunction, returned to USCIS as undeliverable, and subsequently re-mailed in error after the injunction. These EADs will also be retrieved by USCIS but due to the fact that they were only recently discovered, they will be dealt with on a compressed timeline:

  • First (and Only) Letter: On July 14, 2015, this group of 3-year EAD recipients will be sent a letter asking them to return their 3-year EAD, or certify that it has been returned or lost, by July 27, 2015. This letter includes language that if they fail to comply with the letter, their deferred action and employment authorizations will be terminated "at some future date."
  • Phone Calls: Toward the end of the week of July 13, 2015, USCIS customer service representatives will call affected individuals and/or their representatives and provide instructions for returning erroneously issued EADs.
  • Home Visits: Starting the week of July 20, 2015, plain-clothed USCIS officers will begin visiting individual homes to retrieve erroneously-issued 3-year EADs.

Miscellaneous Notes:

  • As soon as an erroneously-issued three-year EAD card is received, USCIS states that the recipient's name will be removed from the home visit list.
  • Recipients who have returned their three-year EADs by mail but who still receive the letter requiring them to report to a USCIS field office must still go to the field office to certify that the three-year EAD has been returned.
  • There is no need to make an InfoPass appointment to return a 3-year EAD card at a field office. Recipients may appear at any USCIS field office during the hours stated in the letter to return their card. Recipients should bring the letter to the field office to facilitate entry into the building.
  • Most of the 2,000 individuals in Group 1 should have already received their 2-year EAD replacement card. The 500 individuals in Group 2 should receive their 2-year card during the weeks of July 13 and July 20.
  • Individuals who fail to comply with the return policy, whose DACA is terminated, have no recourse for reinstating DACA at this time.

Background:

On February 16, 2015, the U.S. District Court for the Southern District of Texas issued an injunction in Texas v. United States, temporarily halting the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA), as announced by DHS Secretary Jeh Johnson on November 21, 2014. Prior to the injunction, between November 24, 2014 and February 16, 2015, USCIS granted and mailed three-year employment authorization documents (EADs) to approximately 100,000 individuals seeking an extension of their initial DACA grant, in accordance with the terms of the DACA expansion guidance. Though USCIS intended to halt mailings of all three-year EADs as of the date of the injunction, approximately 2,500 three-year EADs were erroneously mailed or re-mailed after the injunction.

On July 7, 2015, the district court ordered the government to demonstrate that it has come into compliance with the court injunction by July 31, 2015, and include a summary of compliance in a report to the court. If the court is not satisfied with USCIS's efforts, it will move forward with a hearing on August 19, 2015, and require the individual senior government officials to show cause as to why they should not be held in contempt. Toward this end, USCIS was advised to:

  • Update all necessary databases to reflect a two-year period of deferred action and employment authorization; and
  • Retrieve the erroneously issued three-year EAD cards; or
  • Demonstrate that "substantial effort" was undertaken to retrieve the erroneously issued 3-year cards, including home visits.

If you have a client who you believe received a letter, phone call, home visit, or other instruction to return a 3-year EAD card in error, please send an e-mail setting forth the facts to reports@aila.org, subject line: "DACA 3-Year EAD." Please upload any helpful supporting documentation, such as approval notices, letters, etc.

Cite as AILA Doc. No. 15070802.