What is the current state of the DACA program?

On October 5, 2022, the Fifth Circuit Court of Appeals issued a decision on the legality of the 2012 DACA policy. For now, the Fifth Circuit kept the district court’s stay in place, which means that 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 violates the Immigration and Nationality Act. The Fifth Circuit also found that the State of Texas has “standing,” or the ability to bring its lawsuit against DACA, because it found that emergency Medicaid costs and public education costs for DACA recipients to be “injuries” suffered by the state. The Fifth Circuit remanded the 2022 DACA Rule to the district court to consider it in the first instance.

On October 14, 2022, the Texas district court had a hearing. At the hearing, the Federal Government clarified that it understands the district court’s injunction – which prohibits the consideration of first time DACA applications – to apply to the DACA Rule, and that it will continue not to process requests for DACA from first-time applicants, including those whose DACA has lapsed for more than a year. The court issued an order restating that the Federal Government continues to be prohibited “from granting DACA status for any new applicants.”

On October 31, 2022, the DACA Rule rescinded and replaced the 2012 DACA memo. All current grants of DACA and advance parole issued under the 2012 DACA memo remain valid. Applications to renew DACA are now governed by the DACA Rule. Advance parole remains available for DACA holders. In addition, the DACA Rule clarifies that expunged convictions, juvenile delinquency adjudications, and convictions under state laws for immigration-related offenses are not considered disqualifying convictions when applying for DACA. The DACA Rule’s fee structure involves a fee for Form I-765 to request work authorization and a separate fee for Form I-821D to request DACA which includes biometrics (the current total fee to request DACA is now $555 if filed online and $605 if filed by mail).

On September 13, 2023, the Texas district court ruled that the DACA Rule is unlawful and the decision was appealed to the Fifth Circuit which will hear the case on October 10, 2024.

What does this means for those eligible for DACA: Presently, those who currently have DACA or had it within the last year can file for renewals of their DACA and work permits. The federal government is currently accepting, but not granting or even processing, applications from first-time applicants and anyone whose DACA expired more than one year ago. Further, the government has chosen, without explanation, to treat renewal applications from DACA recipients whose previous DACA grant expired more than one year ago as first-time DACA applications. Advance parole eligibility remains the same for current DACA holders. It is critical that Congress take steps to provide a permanent legislative solution now.

On August 30, 2022, the Department of Homeland Security (DHS) issued a final rule that, with limited changes, continues the Deferred Action for Childhood Arrivals (DACA) policy that was announced in 2012. The rule generally adopted the 2012 DACA, including the current threshold criteria for qualifying for DACA, as well as the existing process for DACA applicants to request work authorization when applying for DACA.

Though the Rule was set to take effect on October 31, 2022, the Federal Government has indicated that it understands the Texas district court’s injunction to extend to the Rule. Accordingly, USCIS will continue processing and approving DACA renewal applications, but will not grant any initial applications for DACA.

You can find further analysis of the rule here.

What happened in the Batalla Vidal case in New York?

Currently, counsel in the Batalla Vidal case is analyzing potential next steps. The most recent court action in Batalla Vidal took place on August 3, 2022. With Congress having failed to act and a proposed new DACA regulation still unfinalized, the Batalla Vidal plaintiffs (a nationwide class of all those who hold DACA or are DACA eligible) asked the New York court for relief for the approximately 100,000 individuals whose applications for first-time DACA, or renewal where their previous DACA expired more than one year ago, are stalled. Those individuals applied for DACA after the court ordered the government to re-open DACA for first-time applicants in December 2020, but whose applications were pending when a Texas federal court ordered the government to stop granting initial DACA applications in July 2021. We explained to the New York court that there is a space between the New York order and the Texas order that would allow the New York court to provide meaningful relief to the 100,000 first-time DACA applicants and lapsed renewal applicants who applied during that period and whose applications are still in limbo.

Unfortunately, on August 3, 2022, the New York court issued its decision, denying plaintiffs’ motion in its entirety. The court is not extending any relief to people with pending first-time DACA applications or whose DACA has lapsed for over a year.

The August 3, 2022 decision of the New York court is available here.

What does the New York court’s August 3, 2022 order mean?

The ruling is a disappointment for the nearly 100,000 class members whose applications are stuck in limbo. This ruling shows the Biden administration refuses to do things they could have done, such as allowing people whose DACA expired more than one year ago to renew or process further the applications of first-time applicants whose applications are now pending. However, the decision does not change the status quo.

Does the New York court’s August 3, 2022 order change the DACA program?

No. The New York court denied Plaintiffs’ request for limited relief for first-time DACA applicants and renewal applicants whose previous grants of DACA expired more than a year ago. Those who hold DACA can continue to renew their deferred action and work permits. The government is still not granting first-time applications or applications from those whose DACA has lapsed for more than one year.

What does this mean for first-time DACA applicants?

Q: Should I send my first application if I have my documents ready?

A: This is an individual decision you should make in conjunction with your lawyer or legal representative. The application request costs $555 if filed online and $605 if filed by mail and although USCIS will accept the application, keep the money, and issue a receipt notice, the application will not be granted or denied.

Q: I have already sent in my application. What will happen next?

A: 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. This could change in the future. You can check uscis.gov/daca for updates.

What does this mean for current DACA recipients?

While the Texas decision is appealed, the Texas court order allows current DACA holders to continue benefiting from DACA and work permits remain valid. You can use your work permit and you are entitled to a Social Security number and could be eligible for other benefits. The letter filed in New York does not change this.

Q: Has anything changed with my DACA or work permit?

A: No, you will continue to be protected against deportation, and you may continue to use your work permit, Social Security number and any other benefits associated with your DACA.

Q: When should I renew my DACA?

A: 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, we encourage you to renew as soon as possible.

Q: What if my DACA expired more than one year ago?

A: 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.

What does this mean for travel on advance parole?

USCIS continues to process and issue advance parole from current DACA holders.

Q: I have received advance parole. Can I still travel?

A: Your advance parole is valid and you may travel and re-enter the United States using the document as long as your DACA remains current. However, we always recommend you consult with an attorney or accredited representative about individual risks before applying for advance parole and before traveling.

Q: I have an advance parole application pending. What will happen next?

A: If your DACA is current and you meet the advance parole eligibility requirements, USCIS will continue to process and issue a decision on your advance parole application.

Q: I was planning on applying for advance parole. Should I still apply now?

A: If your DACA is current and you are eligible for advance parole, you may apply. Your application will be processed. However, you should pay attention to the media and uscis.gov/daca for any further court updates that may impact advance parole for DACA holders.

Q: Could any of this change?

Yes, the current DACA program is subject to change based upon court orders or federal government policy change. Please check this website for updates.

A: Get involved!

The back and forth in the courts make it clear that we need Congress to act now. Immigrants across the country are fighting to create a pathway to citizenship for all that is inclusive of DACA beneficiaries and their families.

Sign up for updates on our class action website: dacaclassaction.org.