DHS Will Limit DACA Renewal Period, Decline to Accept New Applications, As It Reconsiders the Program

The issue

DHS Acting Secretary Chad Wolf announced today that his agency will not accept initial DACA filings and will limit DACA renewals to one year, reduced from two years.  Likewise, the agency will not accept DACA applications for advance parole except in extraordinary circumstances.  These measures will remain in place while, as expected, DHS reconsiders the DACA program in the wake of a Supreme Court decision that struck down the agency’s 2017 decision to terminate the program.

On June 18, the Supreme Court held that the Trump Administration had failed to provide adequate justification for terminating the DACA program, thus violating the Administrative Procedure Act.  The Court did not rule on the legality of the DACA program as a whole, only on the manner in which the Administration tried to dismantle it.  Though the Court held that the decision to terminate DACA was arbitrary and capricious, the ruling made clear that DHS has the authority to rescind the program, provided it follows proper administrative procedure.

In today’s memorandum, the Acting Secretary states that termination of DACA is warranted under existing DHS immigration enforcement policy, but that a full rescission of the program requires more consideration, signaling, as expected, that his agency intends to do so in the future.

What the new DACA directives mean for foreign nationals and employers

Existing DACA beneficiaries can continue to seek renewal of deportation relief and employment authorization, but will only receive one-year extensions of those benefits; previously, DACA renewals were granted in two-year increments.  However, foreign nationals seeking DACA renewal should anticipate additional scrutiny of their cases, under a new general agency policy that gives USCIS adjudicators greater discretion to request additional evidence and determine whether positive factors outweigh any negative factors in the applicant’s case and circumstances.

Foreign nationals who submit initial DACA applications or DACA-based applications for advance parole will see their applications rejected and their filing fees returned.  DHS may consider a DACA application for advance parole in exceptional circumstances.

The policy also applies to any initial DACA or advance parole application that has been submitted and held by the agency since the Supreme Court’s decision in June.  These applications will be rejected and any fees refunded.

What’s next for DACA

DHS is expected to continue to consider full rescission of the DACA program, though the precise timing of an announcement is not known.  Meanwhile, legal challenges against the new interim DACA policy directives are possible.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.