What's the Latest on Who Can Get DACA?

By Taylor Jameson, Attorney

Recipients of Deferred Action for Childhood Arrivals (DACA) have faced a tumultuous path to obtaining any sort of lawful immigration status in the United States. Presidential action, court challenges, and Congressional gridlock in the last year have left them uncertain as to their future.

DACA is an immigration program granting temporary status in two-year increments to certain undocumented immigrants who were brought to the U.S. as children. A grant of DACA comes with work authorization and relief from the immediate threat of deportation.

Here’s the latest on DACA, including recent judicial challenges and decisions, who can get DACA now, and what the future may hold.

Timeline of DACA Changes in 2018

As soon as President Trump took office, he began to seek termination of DACA in order to fulfill one of his major campaign promises. The Trump administration rescinded DACA on September 15, 2017, gradually phasing out protections for people who already had DACA and closing the door to new, initial applications.

However, due to federal injunctions (court orders), United States Citizenship and Immigration Services (USCIS) has since been forced to continue processing DACA renewal applications. On January 9, 2018 and February 13, 2018, two separate federal judges in California and New York issued preliminary injunctions preventing USCIS from moving forward with the termination plans. Under the injunctions, USCIS must continue to process DACA renewal applications.

People who already have DACA or had DACA at one point (even if their status is currently expired) are eligible to file for renewals. However, the court decisions do not provide relief for undocumented immigrants who hadn’t yet applied for DACA. Initial applications are not yet being accepted, though this may soon change.

On April 24, 2018, federal district Judge John Bates ordered that the government not only maintain DACA protections but resume accepting new applications. In his decision, Judge Bates stated that “DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful.”

This goes further than the previous two rulings by federal judges, which only ordered USCIS to continue accepting renewal applications. However, Judge Bates’s injunction is not currently in effect. Instead, the judge stayed (postponed) his decision for 90 days, giving the Department of Homeland Security (DHS) a chance to explain why DACA should be canceled.

If DHS cannot provide sufficient justification after 90 days, then the judge has ordered that they “must accept and process new as well as renewal DACA applications.” Counsel for DHS has vowed to continue to litigate this case. The 90-day deadline falls on Monday July 23, 2018; Nolo will continue to provide online updates as new information becomes available.

Two Republican-led immigration bills that addressed DACA as well as other immigration categories failed in the House in June 2018. These are only two of several immigration bills that have failed in recent years, leaving DACA recipients with uncertain futures.

DACA Eligibility Today

As of mid-July 2018, USCIS must accept DACA renewal applications. If you are eligible to renew, you should do so as soon as possible. You are eligible if you previously held DACA status and you met these initial DACA eligibility requirements:

  • You are at least 15 years old.
  • You were born on or after June 16, 1981.
  • You came to the United States prior to turning 16.
  • You have continuously resided in the U.S. since June 15, 2007.
  • You were physically present in the United States on June 15, 2012.
  • You entered without inspection before June 15, 2012, or your lawful status expired as of June 15, 2012.
  • You are currently in school, have graduated from high school, or obtained a general education certificate (GED).
  • You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

As for how to renew, the process will depend on when your DACA expired. If your DACA status expired after September 5, 2016, you will follow the instructions for filing a DACA renewal. However, if your DACA status expired before September 5, 2016, you are still eligible to renew but must fill out your application as if you were submitting an initial application.

USCIS advises that applicants file their DACA renewals between 120 and 150 days prior to the expiration of their status. USCIS has accepted some DACA applications prior to 150 days. You’ll need to weigh the benefit of filing as soon as possible (particularly given the uncertainties surrounding the DACA program) with the potential risk of losing the filing fee if you file too early.

While USCIS accepts DACA renewals, the agency no longer accepts advance parole applications based on DACA. If you already had an approved advance parole document, USCIS states that it intends to honor its stated validity period, but that “CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border.” Given the current zealousness of Customs and Border Patrol (CBP), however, many practitioners advise DACA recipients against travelling with advance parole.

Future of DACA

With the chaotic state of this administration, the status of DACA is subject to change at a moment’s notice.

The Trump administration has not wavered in its determination to end DACA protection. If the preliminary injunctions currently maintaining DACA end without permanent court orders, USCIS will likely resume the President’s original directive to terminate DACA. Congress has not yet succeeded in passing an immigration bill. The situation may change after the November 2018 election, but for now everything is uncertain.

In May 2018, seven states (Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia) filed a federal lawsuit in Texas to end DACA. A decision on this lawsuit is not expected for several months. However, multiple proceedings in federal courts may result in a split among the various court circuits, forcing the U.S. Supreme Court to eventually take up the case.

If you have DACA or think you may be eligible for DACA, meet with an immigration attorney or nonprofit organization to receive an eligibility screening as soon as possible.

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