Latest on DACA: Renewals Being Accepted, Initial Applications Not

Opportunities remain for people to at least reclaim DACA status, but the future of the program is as yet unsettled.

A few years back, in September 2017, the Trump administration announced it would end the Deferred Action for Childhood Arrivals (DACA) program. DACA had provided work permits and a two-year protection from deportation to certain undocumented immigrants who entered the U.S. as children.

The DACA program first began in 2012, under the Obama administration, and benefited people who came to the U.S. before they reached 16 years of age, had continuously resided in the U.S. since June 15, 2007, didn’t have significant criminal convictions, and met other requirements.

Department of Homeland Security Announced DACA Will End

The official announcement to terminate DACA was made by the Department of Homeland Security (DHS), which issued a memo stating that no new DACA applications would be accepted and that renewal applications would be accepted only from people whose DACA expired on or before March 5, 2018. The memo said that existing DACA permits would remain valid until their expiration dates.

Following this announcement, the plan was for the DACA program to be phased out as DACA holders' permits expired. No new or renewal applications were being accepted. Still, many hoped that Congress would pass a bill protecting DACA beneficiaries. Those hopes remain unfulfilled, and the ultimate fate of DACA has yet to be decided (as of early 2020).

Various Federal Courts Ruled That DACA Program Must Continue

Various federal courts across the U.S. issued temporary orders (injunctions) that applied nationwide, which required DHS to continue accepting DACA renewal applications until the courts could make final decisions on the DACA matter.

The courts made similar findings on their way to these orders, basically saying that the manner in which the Trump administration ended the DACA program was ultimately likely (after the courts fully considered all the briefs and legal arguments) to be found “arbitrary and capricious” and therefore unlawful.

The courts did not go so far as to order DHS to accept new applications (from people who had never had DACA before).

In response, DHS announced that it would follow the courts’ orders and continue to accept renewal DACA applications, but would still not accept new DACA applications.

In April 2018, a federal court in Washington, DC made an even more expansive ruling. It found that, because there was substantial likelihood that the manner in which the Trump administration ended the program was arbitrary and capricious, the entire September 5, 2017 memo should be vacated.

While the judge's order opened the door to potentially accepting initial DACA applications as well as renewals, potential initial applicants cannot rejoice. The judge stayed (postponed) his order indefinitely, while the court reviewed briefs submitted by both parties.

All of the litigation is essentially on hold now, as the U.S. Supreme Court has agreed to review the various legal challenges. It heard oral argument in November of 2019, and its decision is expected by June of 2020. The Supreme Court did not undo any of the lower court orders, with the result that people who now have or previously held DACA can continue applying for renewal.

Filing for DACA Renewal

With regard to renewing, you must do so no later than one year after it's expiration. Nevertheless, USCIS advises that applicants file their DACA renewals between 120 and 150 days prior to the expiration of their grant. See Filling Out Form I-821D, "Consideration of Deferred Action for Childhood Arrivals" for instructions.

USCIS will not accept DACA applications prior to 150 days before the expiration date. That puts applicants in a bind, because (as of early 2020) USCIS has an unprecedented backlog of unprocessed renewal applications. You might not get an answer by the time you need it.

Also, the agency no longer accepts advance parole applications based on DACA. If you already had an approved advance parole document, USCIS states that it intends to honor its stated validity period, but that “CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border.” Given the current zealousness of Customs and Border Patrol (CBP), many practitioners advise DACA recipients against travelling with advance parole.

If you qualify for DACA but have never applied for it before, keep your eyes on the news and consult an immigration attorney if and when a window for new applications opens. It's also important to find an attorney who understands your case and can begin preparing it before the last minute, as the best attorneys become extremely busy when major deadlines come along.

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