DACA UPDATE (September 2023):
On September 13, 2023, a Federal District Court in Texas issued a ruling in Texas v. United States declaring DACA unlawful once again. This new decision has brought new questions and confusion. It is important to note that the status of DACA has not changed and individuals who have DACA and are eligible to renew can continue to do so.
Below is a list of frequently asked questions to help community members and DACA recipients navigate these changes.
Note: Are you enrolled at a California State University or California Community College? Your campus may currently be offering free immigration legal services thanks to generous funding by the California Department of Social Services. Check in with your campus or visit findyourally.com to find out more!
What is the status of DACA after the September 2023 Texas Decision?
The status of DACA remains the same. It is important to remember that for now, DACA renewals continue and will be processed and approved for those who are eligible.
DACA has been through a long legal battle that will continue in the coming months. DACA was implemented in 2012 through a memorandum issued by the Obama Administration. In 2021, a Texas Federal decision ruled that the 2012 DACA policy was unlawful. This decision was appealed to the Fifth Circuit Court of Appeals who agreed with the Texas Court. In the summer of 2022, the Biden Administration announced a new DACA rule that codified the DACA policy into a federal regulation with the intent of further protecting the program from legal challenges. This new DACA rule brought the case back to the Texas Federal District Court to consider if the DACA rule fixed the issues found with the DACA memorandum. The Texas Judge once again ruled that DACA was unlawful.
Is this the same judge that ruled that the 2012 DACA Memo was unlawful?
Yes, this is the same judge. In October of 2022 the Fifth Circuit issued a decision on the DACA case in Texas v. United States and returned the case back to the Southern District of Texas to decide the legality of the DACA rule. While the Fifth Circuit Court of Appeals ruled the DACA 2012 memorandum is unlawful, the Fifth Circuit felt that they could not decide on the newly issued DACA rule and decided that the District Court in Texas needed to assess the rule’s legality. This decision is the result of that order. The District Court in Texas decided on the DACA rule and found it to be unlawful.
Does the DACA rule change any of this?
The Biden Administration issued a new rule on DACA that went into effect on October 31, 2022, and replaced the 2012 memorandum. While the rule was an attempt by the Biden administration to strengthen and protect DACA, the District Judge in Texas ruled that the DACA rule did not fix the problems of the DACA memorandum therefore the DACA rule was also unlawful and could not be implemented. This is decision on the DACA rule is being appealed.
What will happen to the Initial DACA requests that were submitted, but not approved?
First time DACA applications continue to be on hold. No new DACA application will be approved at this time. The Court’s decision has blocked USCIS from approving any new DACA cases. This means that all people who have submitted a DACA initial application (i.e., those that never had DACA and are applying for the first time) and have not received an approval from USCIS will have their application held. This applies to all initial cases that were not approved prior to July 16, 2021, and to renewals that have been expired more than a year.
What happens to the information submitted when requesting DACA if those cases are now on hold? Will people be at risk of arrest or deportation?
The Department of Homeland Security (DHS) has stated that DACA applicants are not a priority for deportation or enforcement. While it is currently not clear what will happen with these pending initial DACA requests, current policy prevents DHS from sharing any of the information provided in them with other entities within DHS, like Immigration and Customs Enforcement (ICE), except in limited circumstances, involving fraud, threat to national security, or public safety concerns.
Is there a change in the fee for DACA?
Recently, USCIS changed their policy on how someone should pay their DACA filing fee. While the filing fee continues to be $495, USCIS is asking DACA applicants to submit one check or money order for $410 to cover the cost of the I-765 employment authorization and one for $85 to cover the cost of the I-821D deferred action.
Can DACA recipients continue to request Advance Parole?
Yes. DACA recipients can continue to request advance parole so long as they meet the requirements. Individuals who are interested in applying for advance parole should reach out to a trusted legal representative to discuss eligibility and assess the risks associated with traveling in light of potential changes to DACA before deciding to travel outside the United States.
What happens to DACA recipients who are currently outside of the country on Advance Parole?
DACA recipients who currently have an unexpired DACA and are outside of the country on Advance Parole should be able to return safely to the United States as scheduled if they are eligible for re-entry. Further changes to DACA may impact the ability to travel on Advance Parole in the future.
When should DACA recipients submit their renewal requests?
There is concern around when individuals should renew in case DACA is terminated for all, including renewals. While there is a sense of urgency surrounding the future of DACA, when to renew will depend on your own individual needs and should be discussed closely with a trusted legal representative.
We generally encourage people to renew as follows:
DACA recipients whose DACA expires in the next 6 months, should renew as soon as possible.
DACA recipients whose DACA expires 6 months to a year from now, should consult a legal representative to discuss the benefits of renewing early. Note that USCIS will grant a new two-year period of DACA from the day they approve a request, not from the day the current DACA period expires.
DACA recipients whose DACA expires more than a year from now, may want to wait to renew at this moment. However, these DACA recipients have the right to apply for renewal if they choose to do so.
Unfortunately, if a person’s DACA expired more than one year ago, the individual is not eligible to renew. Any application they present will be considered an initial application, which are not being processed at this time.
What can DACA recipients do now?
DACA recipients should remember that renewals are still being accepted and approved by USCIS. Those who are eligible to renew should do so. Also, DACA recipients and undocumented youth should seek a full immigration consultation to understand their immigration options. Visit https://www.bit.ly/ianimmhelp to find a free or low-cost trusted legal services provider in your area. Lastly, it's important to remain informed about future changes to DACA and be engaged in efforts working for permanent and inclusive immigration policies. DACA recipients and their allies must demand that the Biden administration protect DACA, and Congress finally provides a permanent and inclusive solution for all undocumented immigrants. Find your elected federal representative here: https://www.house.gov/representatives/find-your-representative.
On August 30, 2022, the Biden Administration issued a new rule on Deferred Action for Childhood Arrivals (DACA) that will incorporate DACA into the Federal Regulations. Since its announcement, several questions have been raised around who can access DACA now and what it means for all those first-time applicants who are waiting to obtain DACA. This community resource outlines key points for you to keep in mind as you navigate access to DACA now and when the rule goes into effect on October 31, 2022.
This video details how to complete a DACA renewal application packet by walking through the various forms’ questions to highlight what they mean and focus on areas worth paying close attention to. As always, we highly encourage applicants to seek a consultation with a trusted legal service provider before submitting their packets. Namely this is so applicants can ensure they are submitting their information as accurately as possible and addressing the dimensions of their specific case that may or may not allow them to be eligible for other forms of immigration relief. In this one-hour walkthrough video, the ILRC’s Legal Outreach Coordinator, Abraham Bedoy, dives deep into each form required for a renewal so those taking on their own application packet (forms: I-821D, I-765, I-765WS, G-1145) can follow along to double-check their entries.
Persons are barred from receiving or renewing DACA if they have been convicted of a felony, a significant misdemeanor, three or more misdemeanors, or otherwise pose a threat to national security or public safety. DACA applicants who have been arrested or convicted of a crime may still be eligible, but they should first obtain their criminal records and take them to an expert immigration practitioner to obtain legal advice about their eligibility and potential risks of applying. This resource provides persons applying for DACA with instructions about what criminal records they need for their application and how they can find them.
Applicants must meet certain requirements to be eligible for DACA, including showing that they have been continuously residing in the United States since June 15, 2012. Acquiring documents to use as evidence to prove the continuous residence requirement can be tedious. As such, this resource focuses on the types of evidence initial DACA applicants can gather to prove continuous residence and where applicants can get this evidence.