Latest on DACA Initial Applications and Renewals

Opportunities are ongoing for people to at least reclaim DACA status, for young people brought to the United States by their parents, without having knowingly violated U.S. immigration laws.

By , Attorney Case Western Reserve University School of Law
Updated 1/21/2023

The Deferred Action for Childhood Arrivals (DACA) program was started in 2012 under the Obama administration. It 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. DACA provided its recipients with work permits and a two-year protection from deportation.

Obama and others had hoped that Congress would eventually pass a bill protecting DACA beneficiaries by law, without the need for executive orders. It had previously been working on such bills, but without results. The subsequent Trump Administration attempted to terminate DACA entirely, but was largely stopped by the courts.

On January 20, 2021, newly inaugurated President Joe Biden ordered that the DACA program be restored, pending eventual legislation. But on July 16, 2021, a Texas federal judge ruled that DACA is illegal. Appeals followed, but have not yet changed the legal landscape, such that the final state of this program remains unsettled.

Let's take a deeper look at the history of this ongoing issue, and at where the program stands now.

Federal Courts Ruled Against Trump, Saying DACA Program Must Continue

In response to the Trump Administration's initial phase-out announcement, various federal courts across the U.S. issued temporary orders (injunctions) that applied nationwide. These required the Department of Homeland Security (DHS) to continue accepting DACA renewal applications until the courts could make final decisions on the matter.

The courts basically said (as the Supreme Court later agreed) that the manner in which the Trump administration ended the DACA program was likely (after the courts fully considered the briefs and legal arguments) to be found "arbitrary and capricious" and was therefore unlawful. These courts did not, however, 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, the judge stayed (postponed) his order indefinitely, while the court reviewed briefs submitted by both parties.

All of the litigation was essentially put on hold when the U.S. Supreme Court agreed to review the various legal challenges. In its decision of June of 2020, the Supreme Court did not undo any of the lower court orders, with the result that people who had or previously held DACA could continue applying for renewal. It was widely expected that new applications would become a possibility.

However, USCIS went in a different direction, returning to its efforts to cancel the program. This began with a memo by Chad Wolf, which blocked people who hadn't already applied from filing new DACA applications, and was followed, on August 4, by a USCIS Policy Memorandum stating that USCIS will "reject all initial DACA requests" and "return all fees," but "continue to accept requests" from people previously granted DACA at any time in the past as well as requests for advance parole.

Then in early December of 2020, a federal court in New York reiterated the Trump Administration's legal obligation to return DACA to what it was under the Obama Administration, including accepting new applications.

On December 8, 2020, USCIS grudgingly announced plans to immediately comply with that order and begin accepting new applications (Form I-821D).

Attempted Reinstatement of DACA Under Biden Administration

President Joe Biden issued an order during his first day in office, on January 20, 2021, stating that DHS must "take all actions [deemed] appropriate, consistent with applicable law, to preserve and fortify DACA."

President Biden also announced plans to protect dreamers, their parents, and others by creating a roadmap to citizenship through legislative immigration reform. Those steps will obviously take longer to implement.

Then came the July, 2021 court order mentioned above. For now, it will block approval of all new DACA applications, including those already filed with USCIS, until further court or Congressional action. You cannot get your money back for an application on file but not being acted upon. (Then again, your application might later be acted upon, if court appeals or legislative action change the picture once again.) The court order does not affect current DACA holders rights, nor their ability to renew.

As of October 2022, the litigation was ongoing. A federal appeals court in the Fifth Circuit agreed with the Texas court that DACA as originally created was illegal because of a lack of administrative procedure, but sent the matter back down to the Texas court to decide whether subsequent government regulations actually solved this issue.

Filing for DACA (Initial or Renewal)

If you qualify for DACA but have never applied for it before, you might want to consult an immigration attorney for an analysis of the latest situation. If the legal situation changes and you can move forward, the attorney can help you with filling out Form I-821D and preparing the documents that must accompany it.

With regard to renewing, you must do so no later than one year after your DACA expires. Nevertheless, USCIS advises that applicants file their DACA renewals between 120 and 150 days prior to the expiration of their grant. Renewals are also made on Form I-821D.

USCIS will not accept DACA applications prior to 150 days before the expiration date. That puts applicants in a bind, because USCIS has an unprecedented backlog of unprocessed renewal applications. You might not get an answer for several months, possibly after the time you need it.