Declarations from Director of USCIS and Associate Director Service Center Operations filed in Texas v. United States

May 15th, 2015

Late Friday night (2 hours before the government’s self-imposed deadline of 5/15/15), DOJ filed two affidavits supplementing their advisory. First, a declaration of Leon Rodriguez, the director of United States Citizenship and Immigration Services, and Donald Neufeld, Associate Director for Service Center Operations. These declarations explain how and why expanded DACA applications continued to be issued even after Judge Hanen’s injunction issued.

The most interesting document is the Neufeld Declaration, which explains how DACA applications are granted.

7. In order to understand where the process of identification and tracking broke down, it is necessary to understand the steps involved in the approving of deferred action and employment authorization and in the production and issuance of EADs to DACA recipients. The review and consideration of a request for deferred action and application for employment authorization under DACA is a multi-step, case-specific process. As described more fully below, that process involves three principal, consecutive steps for approved cases: (1) consideration of the request for deferred action; (2) consideration of the application for employment authorization; and (3) production of the EAD. Each of these steps results in USCIS issuing a separate document to the requestor. Approval of the request for deferred action triggers the issuance of an approval notice to the requestor. Approval of the application for employment authorization similarly triggers a separate approval notice. Finally, after approval, USCIS prints and then mails the EAD to the requestor. This typically takes approximately two to five business days after approval of the application for employment authorization.

8. The process begins when an individual requestor submits a request for deferred action under DACA (Form I-821D), an application for employment authorization (Form I-765), an accompanying worksheet showing economic necessity for employment (Form I-765WS), and related filing fees and supporting documentation to one of three USCIS “lockbox” facilities based on the location of the requestor’s residence in the United States. The lockbox facility logs each filing and reviews each DACA package for compliance with applicable intake requirements. If the lockbox facility determines that a package fails to comply with the intake requirements, it rejects the package and mails it back to the requestor with an explanation of the reason for the rejection. If the package is complete, the lockbox facility considers the package appropriately filed and sends a receipt to the requestor. Appropriately filed packages are then forwarded to one of four USCIS Service Centers for further substantive processing and consideration.

9. DACA packages forwarded to the Service Centers are assigned to USCIS adjudicators. After reviewing the paper file and conducting the decision-making process, the adjudicator may approve the request, deny the request, or seek additional information from the requestor if additional evidence is necessary to make a decision. If the DACA request is approved, the adjudicator then considers the application for employment authorization and makes a determination whether the individual has demonstrated an economic need for employment. If so, the application for employment authorization is approved. If not, the adjudicator may deny the application, or may request additional evidence, thereby delaying the decision on the application for employment authorization until a response is received. If the DACA request is denied due to a finding that the requestor has not satisfied the DACA guidelines or does not otherwise merit an exercise of prosecutorial discretion in the form of deferred action, the associated application for employment authorization is also denied.