DHS Posts Notice of Compliance with DACA Court Order For Now

The issue

The Department of Homeland Security (DHS) has taken steps to comply with a December 4, 2020 New York federal district court order requiring the agency to restore the Deferred Action for Childhood Arrivals (DACA) program to its 2012 form and to provide notice to the public of the reinstatement. 

The DHS website and the U.S. Citizenship and Immigration Services (USCIS) website have now been updated to reflect government compliance with the order. According to the notices, starting December 7, USCIS will:

• Accept first-time requests for DACA based on the terms of the program in effect prior to September 5, 2017;
• Accept DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017;
• Accept applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017;
• Extend one-year grants of deferred action under DACA to two years; and
• Extend one-year employment authorization documents under DACA to two years.

 

USCIS will take appropriate steps to provide evidence of one-year extensions of deferred action and employment authorization documents to DACA beneficiaries who were issued documentation on or after July 28, 2020, with a truncated one-year validity period.

DHS also noted that though it will comply with the New York district court order requiring the restoration of DACA while it remains in effect, it may also seek relief from the order.

Background

The reinstatement of DACA to its original form follows a November 14 New York district court decision invalidating a recent DHS memorandum that rolled back the DACA program (the Wolf memorandum).  The Wolf memorandum had limited renewals to one year, and prohibited first-time DACA applications and the grant of advance parole travel documents to DACA beneficiaries. The court’s December 4 order directed DHS to take concrete steps towards full reinstatement of DACA in furtherance of the November 14 decision.

What the agency updates mean for DACA beneficiaries and the DACA-eligible

Foreign nationals who wish to apply for initial DACA benefits and current DACA beneficiaries who seek advance parole should now be able to submit these applications to USCIS.

Individuals who were issued one-year DACA benefits under the restrictive Wolf memorandum can expect USCIS to take steps to issue one-year extension evidence in some form.

By December 31, DHS is also required to begin the notification process for individuals with claims to membership in the court’s certified nationwide class, meaning individuals who are or will be eligible for DACA based on the terms of the program that existed in 2012 (except those who filed their own separate lawsuits challenging the Wolf memorandum).

What’s next for the DACA program

DHS asserts in its notice that it may seek relief from the November 14 court order that requires the agency to fully restore DACA. There also remains the possibility that DHS could try to administratively terminate DACA before the Biden Administration is installed on January 20, 2021. The Biden transition team has made clear that protection of the DACA program will be an utmost priority in its initial days in office.

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