DACA Comes Back in Early 2021, Per Biden Executive Order

November 7, 2020 As part of Joe Biden's presidential campaign, he published a plan for immigration that covers numerous topics, DACA among them.

** LEGAL UPDATE **

For the four years following Donald Trump's election to the White House, the approximately 800,000 people living in the U.S. with DACA (Deferred Action for Childhood Arrivals), as well as many more who were hoping to apply for DACA, lived in a state of uncertainty. Now, however, immediately following the inauguration of President Joe Biden, DACA is back in force, along with hopes for a long-term legislative solution.

Trump Administration's Efforts to Undermine DACA

The Trump Administration announced early on that it would end DACA. This was followed by lawsuits and a Supreme Court order to reopen the program, but the administration refused to accept new DACA applications for most of its tenure nonetheless, and dragged its feet on renewals.

More unsettling for DACA holders was that approval for DACA is not a secure immigration status. (Technically speaking, it's not a "status" at all.) Approval simply means that, for a designated time, U.S. immigration authorities are choosing not to deport the person, and will allow them work authorization in the United States. Once the DACA program is over, or the person no longer meets its criteria, deportation efforts can begin.

The Obama Administration had hoped Congress would create a path to a green card and citizenship for DACA holders before that became a problem. But not only did Congress fail to act, the Trump Administration's enforcement arm (Immigration and Customs Enforcement, or ICE) generally set aside all previous priorities, telling agents to deport anyone they came across regardless of the person's close ties to the U.S. or whether resources might better be spent on undocumented persons who present actual threat to U.S. society. DACA holders legitimately feared that they'd be deported as soon as the program ended or they lost their own DACA status.

Biden Administration's Restoration of DACA

As part of Joe Biden's campaign, the now-President-Elect published a plan for immigration that covers numerous topics, DACA among them.

Because DACA was created by Executive Order (Obama’s) and nearly undone by Executive Order (Trump's), it could be reinstated by a Biden Executive Order; which he published immediately, on January 20, 2021.

The order is straightforward, simply telling the Department of Homeland Security (DHS) to "preserve and fortify" the DACA program as it was before. Eligible people should be able to continue to apply to renew their status, and others should be able to apply for the first time, following whatever instructions U.S. Citizenship and Immigration Services (USCIS) might issue with regard to accepting applications.

As a more permanent solution, President Biden has sent a plan to Congress that includes an eight-year pathway to citizenship for immigrants without legal status. Such legislation will obviously take much longer to act upon, and will depend on cooperation by Senate Republicans.

Effective Date: January 20, 2021