Wolfsdorf Rosenthal LLP

USCIS Demands Return of Erroneously Issued DACA EADs


U.S. Citizenship and Immigration Services (USCIS) sent letters on July 14, 2015, demanding the return of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.

USCIS said this action does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

The agency also subsequently issued an urgent notice on July 27, 2015, stating that “the three-year work permit recall only applies to SOME individuals who received a card after the February 16, 2015, court order.” USCIS said that “[if] you have not been contacted by USCIS and you received a three-year card after February 16, 2015, you should use the new online tool or call the USCIS Customer Service line at 800-375-5283 and select option 1 for English, then option 8 to verify whether you are affected BEFORE returning your card.”
USCIS said that it issued the erroneous EADs (including both EADs with three years and EADs with more than two years but less than three) to approximately 2,100 DACA recipients. Separately, the U.S. Postal Service returned to USCIS as undeliverable about 500 three-year EADs that the agency approved and issued before the February 16, 2015, injunction. USCIS subsequently re-mailed these cards to updated addresses after the injunction. USCIS said it has taken action to correct this issue for these individuals and has updated its records to reflect a two-year period of deferred action and employment authorization for them.

The letter sent to affected DACA recipients explains that the erroneous EADs they received are not valid and must be returned to USCIS. USCIS issued new two-year approval notices and new EADs reflecting a two-year validity period for those people. The letter states that if the recipient of such a letter does not return the invalid EAD, even if he or she has not yet received the new two-year EAD, USCIS will “terminate your deferred action and all associated employment authorizations.” Failure to return the invalid EAD, and subsequent termination of the recipient’s DACA and employment authorization, “may be considered a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.”

The letter states that affected recipients must return their invalid EADs by either appearing at a USCIS field office location by July 27, 2015, or by mailing USCIS the invalid three-year EAD by July 27, 2015. On a stakeholder call on July 14, 2015, USCIS said it is making home visits to collect the invalid EADs. Among other things, USCIS said that if a DACA recipient returns his or her invalid EAD but receives a letter from USCIS requiring a field office visit, he or she must go to the field office to confirm the return of the invalid EAD.

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