United States: The Status of DACA: What Foreign Nationals and Employers Need to Know

On July 16, a federal district court in Texas issued a permanent injunction against the Deferred Action for Childhood Arrivals (DACA) program and directed the Department of Homeland Security (DHS) to correct some procedural legal defects in the program. However, the court did not halt the program entirely.  Below are the answers to some frequently asked questions about the status of DACA protection in connection with the district court decision and newly updated U.S. Citizenship and Immigration Services (USCIS) guidance.

I am a DACA beneficiary due for renewal of my DACA protection and related employment authorization document (EAD).  Will I be able to obtain renewals?

Yes, if you are a DACA beneficiary in good standing, you will still be able to submit and USCIS will continue to adjudicate your renewal DACA and EAD applications.  

I am eligible for DACA but have never applied for it. Can I still get DACA protection?

 At this time, you may submit an application for DACA relief, but USCIS cannot approve it, per the July 16 court order. You will receive a receipt notice for your application.  In addition, your filing fee payment will be deposited and may not be refunded if your application is not adjudicated.

I am a current DACA beneficiary and my EAD will expire soon, so I have filed for an extension.  What happens if my renewal is not approved before my current EAD expires?

If your EAD expires before your renewal is approved, you will not be work authorized during this gap period.  You will need to wait for your USCIS to approve your renewal to return to work.  USCIS strongly encourages filing DACA and EAD renewals between 150- 120 days prior to current expiration.

I had DACA protection and a related EAD, but they expired 6 months ago.  Can I obtain these benefits again?

Yes, as long as you file for DACA and an EAD within one year of their expiration, USCIS will treat your applications as renewals and adjudicate them. 

I had DACA protection and a related EAD, but they expired more than a year ago.  Can I obtain these benefits again?

If your DACA and EAD expired more than a year ago, you may apply again, but your applications will be treated as initial submissions and cannot be adjudicated at this time.  Under the July 16 court order, USCIS can accept your applications, but is prohibited from adjudicating them until further notice. You will receive a receipt notice for your application.  In addition, your filing fee payment will be deposited and may not be refunded if your application is not adjudicated.

I am a current DACA beneficiary.  Can I apply for an advance parole document for international travel?  Is international travel advised at this time?

Yes, USCIS will accept and adjudicate DACA advance parole applications for current beneficiaries. However, a DACA advance parole document can only be issued for international travel for certain purposes.  USCIS will approve advance parole for DACA beneficiaries if their travel abroad is for certain humanitarian, educational or employment purposes. Travel for vacation cannot be the basis for the grant of your advance parole.

International travel should always be considered carefully by DACA beneficiaries because the grant of an advance parole document is not a guarantee of admission into the United States. Further, if you have been previously been ordered deported or removed in any capacity, you will need to seek immigration counsel prior to taking any action towards international travel. Finally, extra caution is advised due to the continually changing global COVID emergency.  The United States and foreign countries often change COVID travel and entry restrictions without notice; it has not been uncommon for foreign nationals to be significantly delayed or stuck outside of the United States over the last 18 months.

My organization employs DACA beneficiaries. Does the court decision change our ability to hire and continue to employ these workers?

No. The district court decision does not affect an organization’s approach to hiring and continuing to employ a foreign national who presents a valid Employment Authorization Document.  All I-9 employment verification procedures continue to apply in the same manner as before the July 16 decision.

What is in store for DACA now?

There are several ongoing efforts to reinstate and stabilize protection for Dreamers.  First, the Biden Administration plans to appeal the July 16 district court decision.  Also, USCIS plans to issue a proposed DACA regulation, trying to remedy the program procedural legal defects identified by the court in its July 16 order. Finally, there are several bills pending in Congress that would provide permanent relief for Dreamers, though their prospects for passage are uncertain. 

Where can I find more information on DACA?

USCIS maintains two detailed webpages aimed at providing information on DACA.  The main DACA page is typically updated almost immediately after any court order or decision is rendered.  USCIS also updates its own Frequently Asked Questions page as changes occur.

Fragomen is closely monitoring DACA developments and will continue to provide updates.