** LEGAL UPDATE **
Nearly a year ago, 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 began in 2012, under the Obama administration, and benefited people who came to the U.S. before they reached 16 years of age, continuously resided in the U.S. since June 15, 2007, didn’t have significant criminal convictions, and met other requirements.
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.
After this announcement, it seemed that the DACA program would be phased out as DACA holders' permits expired, especially because no new or renewal applications were being accepted from people. Hopes that Congress might pass a bill protecting DACA beneficiaries after the administration terminated the program remain unfulfilled.
In January and February 2018, two separate federal courts, in California and New York, issued decisions that applied nationwide, requiring DHS to continue accepting DACA renewal applications until final court decisions on the DACA matter could be made.
The two courts made similar findings—that the manner in which the Trump administration ended the DACA program was ultimately likely to be found “arbitrary and capricious” and therefore unlawful.
These two courts did not go so far as to order DHS to accept new applications (from people who had never had DACA before). 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 third 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. This means that DHS would be required to accept initial DACA applications in addition to renewal applications. While the judge's order opened the door to potentially accepting initial DACA applications as well as renewals, potential initial applicants should not yet rejoice. The judge has stayed (postponed) his order indefinitely, while the court reviews briefs submitted by both parties.
Texas and Six Other States File Suit Over DACA
In May 2018, Texas and six other states filed a federal lawsuit in Texas, asking a court to declare the entire DACA program unlawful and to order that the program be phased out. This lawsuit, as of now, will not affect people with DACA, nor those applying for DACA renewals. It will be several months before any kind of decision is made in the case.
In theory, a judge in the Texas case could order the DACA program to stop, which would be in direct conflict with other federal courts’ orders for the program to continue. It is not clear how DHS would proceed in this case or whether the Supreme Court would take up the issue.
As of mid-July 2018, USCIS must accept DACA renewal applications. If you are eligible to renew, you should do so as soon as possible.
As for how to renew, the process will depend on when your DACA expired. If your DACA status expired after September 5, 2016, you will follow the instructions for filing a DACA renewal. However, if your DACA status expired before September 5, 2016, you are still eligible to renew but must fill out your application as if you were submitting an initial application.
USCIS advises that applicants file their DACA renewals between 120 and 150 days prior to the expiration of their status. USCIS has accepted some DACA applications prior to 150 days. You’ll need to weigh the benefit of filing as soon as possible (particularly given the uncertainties surrounding the DACA program) with the potential risk of losing the filing fee if you file too early.
While USCIS accepts DACA renewals, 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), however, many practitioners advise DACA recipients against travelling with advance parole.
If you qualify for DACA but have never applied for it before, consult an immigration attorney as soon as possible about the benefits and risks of applying if and when a window for new applications opens. If that happens, it may be for only a short time, so it is important to also follow DACA developments and consult the United States Immigration and Citizenship Services (USCIS) website to determine whether new applications are being accepted.
It is 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 like this come along.
The fate of the DACA program is for now uncertain as legal battles play out in federal courts across the country.