UPDATE – AUGUST 31, 2018: In an order filed on Fri., Aug. 31, the U.S. District Court for the Southern District of Texas declined to issue a preliminary injunction that might have affected the ability of people with DACA to apply to renew their DACA. In the coming days, NILC will be updating its DACA-related materials to reflect the effects of the Aug. 31 ruling.
Should I renew my DACA now?
By Ignacia Rodriguez, NILC immigration policy advocate
AUGUST 7, 2018
Lately people have been asking, Why the uptick in chatter about renewing DACA now? Starting this summer, advocates began encouraging people to renew as soon as possible, even though the option to renew has been around since January.
What changed? Remember, U.S. Citizenship and Immigration Services (USCIS) did not begin accepting DACA renewal applications voluntarily. USCIS began accepting DACA renewal applications again only because federal judges in California and New York ordered it to. Court orders, as we’ve seen most recently in the Texas case that blocked DAPA (Deferred Action for Parents of Americans) and expanded DACA and also in the Muslim ban court cases, can change over time. A judge’s order can be appealed by the party that disagrees with it, and at the appellate stage the order can continue in effect, can be paused or reversed, or can be modified.
We knew the decisions issued in these cases would probably be appealed (usually a U.S. district court decision is appealed to the court of appeals for the “circuit” corresponding to the state where that district court is located) and that at least one of these cases could then make its way all the way to the U.S. Supreme Court. The probability of an appeal became reality when the federal government appealed the decisions issued by the courts in California and New York.
Litigating a case takes time. Time is allotted for each party to submit briefs that lay out its arguments, and the court schedules hearings as necessary to hear the parties’ arguments. It is very rare for a judge to issue a ruling during or immediately after a hearing, so days, weeks, even months can go by before the judge issues a ruling. This is why, before this summer, some experts expected the DACA renewal process to be available at least through this month (August 2018) and maybe longer. In addition, the U.S. Supreme Court won’t be back in session until October, so under usual circumstances it wouldn’t hear an appeal of one of the DACA cases before then.
So what happened this summer? Back on May 1st, Texas and six other states filed a lawsuit arguing that the DACA program is illegal and shouldn’t have been created in the first place. They are asking for a court in Texas to order USCIS to stop accepting DACA applications. On August 8, U.S. District Court Judge Andrew Hanen will hold a hearing in their case in Houston, Tex.
Nobody knows for certain what will happen either during this hearing or afterwards, including how a possible negative ruling by a judge in Texas will affect the orders issued by federal courts in California and New York. It is unlikely that Judge Hanen will issue a ruling or order on August 8. But some experts think it’s at least possible that USCIS could stop accepting and processing DACA renewal applications as early as the end of August. Depending on what happens in the courts, the option to renew may remain indefinitely or may be modified or eliminated by decisions in these district courts, circuit courts of appeals, or the U.S. Supreme Court.
Should you renew your DACA now, even if your DACA expires in February 2019? May 2019? December 2019? You will need to decide whether it makes sense for you to apply for DACA renewal now. We highly encourage you to speak with an attorney or a Board of Immigration Appeals–accredited representative before you submit a renewal application, to discuss the possible benefits and risks of applying early. Some attorneys or accredited representatives may advise you against applying now, because USCIS used to not accept renewal applications filed more than 150 days before the applicant’s DACA expiration date. However, since it became possible again, in January, to apply for DACA renewal, USCIS has accepted renewal applications filed more than 150 days before expiration.
Still, you must consider the risks and benefits of applying early. Considerations include but are not limited to:
• If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017). Can you afford to lose the $495 fee if USCIS decides not to return fees? Can you afford to send your application by certified mail, to have an additional way of tracking it, to prove that it should be “grandfathered in” if the government decides to process already-submitted applications?
• If you apply early and are granted DACA renewal, your “new” DACA and work permit may start being valid before your “old” DACA and work permit expire. Nevertheless, your new work permit will expire two years after its date of approval. Currently, it’s taking USCIS about 3-5 months to adjudicate an application, but some applications have been adjudicated faster.
Example: Your current DACA and work permit expire in December 2019. You submit a renewal application today, and USCIS accepts it. USCIS grants your DACA renewal in October 2018. Therefore, your renewed DACA and work permit will expire in October 2020. In other words, by applying now, you may gain a total of only 10 more months of DACA and work authorization. You must ask yourself: Is having those 10 additional months of DACA worth the effort and expense of applying? Will I feel more at peace knowing I have more time with DACA, even if it’s only 10 months? What will I feel like if the court orders that require USCIS to accept DACA renewals remain in effect for months or even years?
If you decide to go ahead and apply now, we recommend doing so as soon as possible, since the situation with the court cases is so uncertain. We wish we could answer with a simple “yes” or “no” when people ask us whether they should apply now, but, along with everyone else, we simply don’t know now what will happen in the courts in the next weeks and months. But we will continue to provide information and updates to help you plan for your future.