A 2021 federal court decision has impacted the ability of the U.S. government to fully operate the Deferred Action for Childhood Arrivals (DACA) program in its original form, pending appeal. Nonetheless, some individuals remain eligible for relief under DACA, and other individuals remain eligible to apply for DACA.
The Federal District Court Ruling
On July 16, 2021, the U.S. District Court for the Southern District of Texas invalidated DACA as “illegal” and vacated the 2012 Department of Homeland Security (DHS) memorandum that created DACA. The court issued a permanent injunction prohibiting DHS from continuing to administer and reimplement DACA, but temporarily stayed that injunction as to individuals who had obtained DACA status before July 16, 2021. This stay also applies to individuals with renewal requests.
DHS is working with the Department of Justice to appeal this ruling. Furthermore, DHS is taking steps to engage the public in the rulemaking process under the Administrative Procedure Act (APA), which was the court’s primary objection to the validity of the memorandum establishing DACA.
The Practical Impact of the Court Ruling
U.S. Citizenship and Immigration Services (USCIS) will continue to accept the filing both of initial and renewal DACA requests, along with accompanying employment authorization document (EAD) requests. USCIS also will continue to process renewal requests, accompanying requests for EADs and advance parole, and requests for replacement EADs and advance parole documents. However, to comply with the existing court order, USCIS will not grant any initial DACA requests filed after July 16, 2021, or accompanying requests for employment authorization.
Initial DACA Requests
An initial DACA request includes:
You can submit your initial request and accompanying request for employment authorization, but it will remain on hold while the court order remains in effect. You will receive a receipt when you submit your request and USCIS will process your payment.
USCIS may issue you a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) for your initial DACA request. You can and should still reply to these requests so that your filing is complete if and when USCIS can begin reviewing and considering initial DACA requests in the future.
Renewal DACA Requests
A renewal DACA request includes:
If you are a current DACA recipient, your status remains valid. When it is time to renew your status, you can submit your renewal request. USCIS will process and decide your renewal request at that time. USCIS recommends that you file your DACA renewal request 120 to 150 days before it is due to expire.
USCIS still has the goal of trying to process DACA renewal requests within 120 days. If it has been more than 105 days since you submitted a renewal request, you can check the status of your request online. However, the following factors could delay the processing of your DACA renewal request:
Advance Parole Requests
USCIS continues to accept and adjudicate requests for advance parole for current DACA recipients. Furthermore, if USCIS already has approved your request for advance parole, the court ruling does not affect that approval. You may return to the U.S. using your advance parole, although you are subject to immigration inspection at a port of entry upon your return.
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