Since its creation in 2012 by President Obama, the DACA program for young, undocumented immigrants has gone through many changes, and its legality has been a near-constant topic of debate in federal courts. We have learned good news about the program that could allow thousands more undocumented young people in the United States to become eligible to obtain work and travel authorization.
The Trump administration in particular has made several attempts to dismantle the policies that allow DACA “Dreamers” to live and work legally in the United States. In 2017, USCIS stopped accepting first-time applicants and would only process renewal forms from applicants who had already received benefits under the Obama administration. Additionally, they halted processing of “Advance Parole” applications, which previously allowed DACA recipients to travel internationally and re-enter the United States legally.
In an exciting victory for the DACA community, the Supreme Court ruled in the early months of 2022 that the DACA program could not be fully cancelled by the Trump administration. However, shortly after the ruling, USCIS released new policy changes behind the scenes that severely limited accessibility to DACA benefits and negatively impacted thousands of applicants.
Among these changes was a plan to decrease the validity period of Employment Authorization Documents (EADs) from two years to one year, which would require young applicants to file costly renewal applications twice as often — about every six to nine months — in order to remain legally in the United States.
In November 2020, a federal judge ruled that these changes made to the program are invalid and cannot be enforced because the acting Secretary of the Department of Homeland Security, Chad Wolf, was not legally appointed to the position. As such, he did not have the authority to make adjustments to the program and USCIS must revert to the original, Obama-era policies, since the program was already upheld by the Supreme Court.
Based on the court ruling, the expectation was that USCIS would reinstate the following policies:
Immigration attorneys are using caution given the unclear messages coming from the Department of Homeland Security over the past several months, but will likely begin attempting first-time filings and Advance Parole requests soon. If you are eligible for these benefits, we encourage you to stay in touch as we learn more.
The Department of Homeland Security announced a final rule to continue the DACA program. It took effect on October 31, 2022. This rule indicates that there will be no changes for current DACA holders or their ability to renew. However, new applications are but never processed for entrance to the DACA program because of the July 2021 court ruling.
On October 5, 2022, the Fifth Circuit found the 2012 Memorandum setting out DACA to be illegal and remanded the case to US District Judge Andrew Hanen to establish the legality of the new, final DACA rule. Given the similarity between the original DACA policy and the 2022 final rule, it is expected that Hanen will find the new rule to be illegal.
As the litigation is ongoing, including a potential appeal to the U.S. Supreme Court, the Fifth Circuit preserved the stay, temporarily allowing current DACA recipients to stay and permitting them to retain work authorization as well as the ability to apply for renewal of their protections. Under the stay, new applicants will continue to be prevented from having their petitions adjudicated.
Because of the court decision on the Wolf memorandum, DACA recipients can now apply for renewals in 2-year increments. Current DACA recipients are eligible to apply for advanced parole in the particular scenarios originally allowed for DACA recipients (work reasons, educational opportunities, and emergency humanitarian reasons). Initial DACA applicants may still forward their applications to USCIS, but because of the subsequent Hanen decision, USCIS cannot process them.
The Biden administration has supported DACA and has repeatedly called on Congress to pass laws to protect Dreamers and DACA recipients. The administration is expected to publish the final DACA rule in the coming months, which is expected to face further legal challenges.
If the courts lift the Hanen stay and strike down the policy completely, DACA recipients will enter another era of ambivalence. It is yet not clear whether DACA recipients would lose their work authorization and protections overnight, or if there will be a grace period — likely the remaining duration of the EADs without renewals.
The significant reliance interest DACA recipients have on the policy’s protection is likely to be a primary consideration in determining the “wind down” of the policy because, as Chief Justice Roberts said in his 2020 decision, “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” Various DACA recipients are enjoying their tenth year of DACA and have built their families, careers, finances, and lives around their ability to legally work in the United States and remain free from deportation. They have a noteworthy reliance interest in maintaining DACA.
In the event DACA is barred by the courts, DACA recipients and other Dreamers who otherwise would become qualified to apply for DACA should talk with an attorney to evaluate if they have any other, better options for relief outside of DACA. To find out how we can assist you, contact us at (503) 427-8243, or you may schedule a consultation online here.
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