Dream On: DACA Extensions Still Possible

The Deferred Action for Childhood Arrivals (“DACA”) program, introduced by President Obama in 2012 to provide relief from deportation  for certain undocumented individuals who had been brought to the U.S. as children, was rescinded by President Trump last year. Since then, the program has been partially reinstated through litigation. As of the date of this Advisory, an individual can apply to renew his or her DACA status and accompanying employment authorization documents (“EAD”) if the individual was previously approved for DACA status, even if the originally issued DACA documents have since expired. An individual who has never held DACA is barred from filing a new application at this time. Advance parole (authorization for reentry after travel outside the United States) will no longer be granted.

Background

The DACA program was first introduced on June 15, 2012, after Congress failed to take action to provide relief to millions of young people who had been brought to the U.S. as children and were unable to gain legal status (the so-called “Dreamers”). Upon being granted DACA status, a recipient was protected temporarily from deportation or removal and given an EAD. The DACA requirements and procedures can be found at the USCIS website here and here.

On September 5, 2017, the Trump Administration announced that it was terminating the DACA program, and called upon Congress to pass relief for Dreamers. The Department of Homeland Security (“DHS”) memo provided that:

1. No new DACA or related EAD applications would be accepted after September 5, 2017;
2. New DACA and related EAD applications accepted by DHS as of September 5, 2017, would be decided on a case-by-case basis;
3. DACA renewal requests and related EAD applications from current DACA recipients, accepted by DHS as of September 5, 2017, and those whose benefits expired between September 5, 2017 and March 5, 2018, would be adjudicated on a case-by-case basis;
4. Any previously approved DACA and EADs would generally remain valid during their terms of approval, subject to DHS discretion to terminate DACA status or revoke EADs previously approved at any time; and
5. Any pending I-131 Applications for Advance Parole would be returned with filing fees, although those already approved as of September 5, 2017, would remain valid, subject to DHS discretion to review the applicant’s eligibility for advanced parole.

Legal Challenges

On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction in Regents of Univ. of Cal., et al. v. Dept. of Homeland Sec., ordering DHS to maintain the DACA program on a nationwide basis on the same terms and conditions in effect on September 5, 2017, except that:

1. New initial applications from those individuals who had never before granted DACA status do not need  to be processed;
2. The U.S. Customs and Immigration Service (“USCIS”) is not required to grant advance parole to DACA recipients;
3. DHS may still remove any individual, including a DACA grantee, who is determined to pose a risk to national security or public safety, or who “otherwise deserves” to be removed; and
4. The injunction remains in effect until final resolution of the litigation or an earlier determination by a higher court.

On February 13, 2018, the District Court for the Eastern District of New York issued a nationwide preliminary injunction ordering the government to maintain the DACA program on the same terms and conditions, and subject to the same limitations, ordered by Judge Alsup.

Following Judge Alsup’s ruling, the Trump Administration bypassed the 9th Circuit Court of Appeals and went directly to the U.S. Supreme Court to seek to have the injunction lifted. On February 26, 2018, the Supreme Court declined to grant the Trump Administration’s request and allowed the injunction to stand while the case proceeded. Additional information about DHS’s response to Judge Alsup’s order can be found here. 

On March 5, 2018, the U.S. District Court in Maryland found that the Trump Administration had the right to terminate the DACA program, although it enjoined the government from using information obtained through the DACA program for enforcement purposes. The Maryland court ruling, however, had no effect on the preliminary injunction issued by Judge Alsup, which remains in place.

Implications for Dreamers and Their Employers

At this time, individuals who plan to file for an extension of DACA status (and the related EAD) should submit their applications no fewer than 120 and no more than 150 days prior to the expiration date of their current documents. Applications filed more than 150 days before the expiration of current DACA documents are expected to be processed, but may receive an effective date prior to the expiration date of current documents, resulting in an extension period of less than two full years.

Individuals whose DACA status expired before September 5, 2016, or whose status was terminated at any time, may apply as an initial applicant by including the required supporting evidence. Those whose DACA status expired on September 5, 2016 or later may request DACA status as renewal applicants.

Advanced Parole Documents Will Not be Accepted for Processing at this Time

The filing of a DACA renewal application does not guarantee approval, nor is there any assurance that the program will continue to be available. The DACA renewal process requires a non-refundable filing fee of $495. If the DACA program is terminated in its entirety while an application is pending, the filing fee may not be returned.

The future of the DACA program, and the protections and benefits afforded to current DACA holders, is uncertain, and will ultimately depend on definitive guidance from the Supreme Court, federal legislation, or possibly further executive action. In the meantime, Dreamers, and their employers, will need to continue to monitor developments in this evolving area.

Given the complexities and uncertainties surrounding the entire DACA program, you are encouraged to contact experienced immigration counsel if you have any questions about the DACA program or the renewal of DACA status and related EAD applications.