What is Deferred Action for Childhood Arrivals (DACA)
Deferred Action for Childhood Arrivals (DACA) is an administrative relief program that shields qualifying immigrants who arrived in the United States as children from deportation. DACA provides undocumented immigrants with two benefits:
- Protection from deportation
- Employment Authorization Document (EAD) or work permit
The program requires that the DACA status and work permit be renewed every two years.
Deferred Action for Childhood Arrivals (DACA) is an exercise of prosecutorial discretion, providing temporary relief from deportation (deferred action) and work authorization to certain young undocumented immigrants.
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.
Deferred Action for Childhood Arrivals Guidelines
The applicants may request DACA if they are:
1. Immigrants who came to the United States before June 15, 2007 and have been continuously residing in the U.S. since then, are eligible for deferred action under the terms of the DACA program. They must also prove they had a lawful immigration status or parole obtained prior to June 15, 2012, that had expired as of June 15, 2012.
2. Are currently in school, have graduated and obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; and
3. Have not been convicted of a felony, or significant misdemeanor, and do not threaten national security or public safety.
The applicants must also be at least 15 years or older to request DACA, unless the applicants are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:
|The applicants have never been in removal proceedings, or their proceedings have been terminated before making their request.||At least 15 years old at the time of submitting the applicant’s request and under the age of 31 as of June 15, 2012.|
|The applicants are in removal proceedings, have a final removal order, have a voluntary departure order, and are not in immigration detention.||Under the age of 31 as of June 15, 2012, but the applicants may be younger than 15 years old at the time they submit their request.|
Deferred Action for Childhood Arrivals (DACA) Renewal
USCIS recommends that DACA recipients submit their renewal requests between 120 and 150 days before their current DACA expires. USCIS’ current goal is to process DACA renewal requests within 120 days.
To request a DACA renewal, the following conditions must be met:
- A valid travel document (Form I-131) is required for those applicants who plan to leave the country on or after August 15, 2012,
- Applicants are residing in the United States after submitting their most recent approved DACA request.
- Applicants have not been convicted of a felony, or a serious misdemeanor, and does not pose a threat to national security or public safety.
- Complete and sign the Form I-821D, Consideration of Deferred Action for Childhood Arrivals
- Use the most recent version of Form I-821D, or else USCIS will reject the applicant’s form.
The applicants should not submit any additional documents at the time of the requested renewal unless:
- The applicants have new documents involving removal proceedings or criminal history that they did not already submit to USCIS in a previously approved DACA request.
Note: USCIS may request additional documents or statements to verify information provided in support of requests for renewal of DACA. May contact other government agencies, education institutions, employers, or other entities in order to verify the information. USCIS may deny their renewal request if the applicant does not respond to a Request for Evidence in a timely manner.
Recent DACA - Related Developments
On October 5, 2022, the Fifth Circuit Court of Appeals pronounced its decision on the legality of the 2012 DACA. The Fifth Circuit agreed with the District Court that DACA is unlawful. However, current DACA recipients can continue to benefit from DACA and renew their grants of DACA and work authorization while the case continues, but first-time applications are still not being processed. As anticipated, the Fifth Circuit agreed with the District Court that DACA is unlawful on both procedural and substantive grounds—in other words, the 2012 DACA memo was unlawfully published without required notice-and-comment procedures, and the 2012 DACA memo is in violation of the Immigration and Nationality Act.
The Fifth Circuit also agreed with the District Court that the State of Texas has “standing,” to bring its lawsuit against DACA as it found that emergency Medicaid Costs and Public Education Costs for DACA recipients are “injuries” suffered by the state.
The Department of Homeland Security issued a final rule that, with limited changes, continues the Deferred Action for Childhood Arrivals (DACA) policy. USCIS will continue processing DACA renewal applications according to the terms of the 2012 DACA policy. An injunction from the Southern District of Texas continues to block USCIS from granting any initial applications for DACA.
Key Takeaways from the decision of the Fifth Circuit Court of Appeals
The Appeals Court upheld the District Court’s verdict. They further ruled that:
1. The states that opposed the DACA program had the right to do so,
2. President Obama broke the law while implementing the DACA program.
3. The Department of Homeland Security (DHS) will continue to accept and process DACA renewal applications.
4. New DACA applications may be submitted, but they cannot be adjudicated upon or processed further.
The Appeals Court also noted that DHS released a version of the program’s regulations thus following the public law before releasing the final ones at the end of the summer. These regulations will go into effect on October 31, 2022, and further remanded the case to the District Court in light of the newly published DACA regulations.
Who can request DACA now?
Current DACA recipients can continue to renew and should continue to renew. If the applicants are
wondering when should they submit their renewal of the pending case, they should consider the following:
✔ If the applicant’s DACA expires in less than 6 months from now, they should renew now.
✔ If your DACA expires within 6 months to 1 year, you may want to renew at the earliest.
✔ If your DACA expires more than 1 year from today, the applicants should speak to a trusted legal service provider to see if there are any benefits in applying early.
Note: If the applicants DACA already expired, they can renew if 1 year has not passed since their DACA expired. If their DACA expired over 1 year ago, it will not be processed or granted. The filling fee continues to be $495.
What is the impact of the rule on current DACA recipients?
Nothing has changed for DACA recipients and those seeking to obtain DACA. Currently, only those who are eligible to renew can continue to renew. This includes
Individuals who currently have DACA; AND
Individuals whose DACA expired less than a year ago.
Those who already have DACA at the time this regulation takes effect won’t need to apply again. Once the new policy is in place, it will be applied to all pending and upcoming requests. While the regulation does not currently affect who is eligible for DACA, community members should be aware that even after it takes effect on October 31, 2022, litigation can change regarding who can access DACA.
Currently, the Texas court injunction blocking initial DACA applications remains in effect, so U.S. Citizenship and Immigration Services (USCIS) will continue to process DACA renewals, but not initial DACA applications from initial DACA requestors and people whose DACA expired more than a year ago while this injunction remains in place.
Frequently Asked Questions on DACA
Q1. In view of the Fifth Circuit ruling, what is the present situation?
The government is still collecting and deciding on renewal applications for people who presently have DACA as well as those whose prior DACA permit expired less than a year ago because the Fifth Circuit upheld the district court’s partial stay of its own order. First-time DACA applications are still being accepted by the government, but they are NOT being processed. People whose previous DACA grants expired more than a year ago can still file renewal applications, but the government is NOT processing them at this time. Current DACA recipients continue to be eligible for advance parole.
Q2. What should first-time DACA applicants do?
As of now, there are no changes in the DACA program since July of 2021, other than USCIS now accepting DACA renewal applications electronically.
Q3. I have already sent in my application. What will happen next?
The application will not be granted. On July 27, 2021, USCIS advised they will be putting these applications “on hold” and will NOT be refunding application fees or rejecting applications.
Q4. If the applicant’s first-time DACA application was granted before July 16, 2021. Will there be any change?
No, your DACA and work permit remains valid. You can use your work permit and you are entitled to a Social Security number and could be eligible for other benefits.
Q5. When can an applicant renew their DACA?
USCIS encourages renewals to be filed between 120 and 150 days prior to the expiration of your DACA. However, USCIS will accept your application before 150 days but will not process it until 150 days before your DACA expires. If your DACA expires in the next few months, the applicants should renew it as soon as possible.
Q6. What if my DACA expired more than one year ago?
USCIS is not granting applications for previous DACA holders whose DACA lapsed for over one year. You may still file an application, but it will not be approved unless the government changes its current practice.