Following the September 5, 2017, issuance of a Department of Homeland Security, or DHS, memorandum rescinding Deferred Action for Childhood Arrivals, or DACA, several lawsuits were filed challenging the legality of the DACA program’s termination. This advisory summarizes the current status of DACA in light of the pending litigation.

What is the status of the current DACA litigation?

Several lower courts have held that the rescission of DACA was likely unlawful and ordered U.S. Citizenship and Immigration Services, or USCIS, to resume accepting DACA renewals. In compliance with two nationwide injunctions issued, respectively, on January 9, 2018, in Regents of the University of California v. DHS and February 13, 2018, in Batalla Vidal v. Nielsen, USCIS has been accepting applications from those who currently have DACA or have held DACA in the past. The U.S. Supreme Court was asked to make a final decision about the legality of DACA’s termination. On November 12, 2019, it held oral arguments in a case consolidating three legal challenges — Regents of the University of California v. DHS, Batalla Vidal v. Nielsen, and NAACP v. Trump. A decision is expected any time between now and June 2020.

Can individuals who have never held DACA apply now?

No. Under the nationwide injunctions currently in place, USCIS must accept applications only from individuals who were previously granted DACA. USCIS is not accepting first-time initial DACA requests from those who have never held DACA.

Can former DACA recipients whose deferred action expired more than a year ago apply?

Yes. Those whose deferred action expired more than one year ago, or was terminated at any time, may request DACA under the court orders but must apply as initial applicants and include the required supporting evidence. Those whose DACA expired one year ago or less may request DACA as renewal applicants and should follow the instructions for renewal requests. USCIS directs all applicants to include the date their DACA expired (or was terminated) in Part 1 of the Form I-821D.

Note that this “one-year filing window” is a change in policy that went into effect on August 1, 2019. The previous policy (in effect from September 5, 2017 through July 31, 2019) was that those whose DACA expired on or after September 5, 2016, could apply as renewal applicants, but those whose DACA expired before September 5, 2016, had to file as initial applicants.

Which DACA recipients may apply to renew?

Anyone who has previously held DACA and continues to meet the DACA eligibility requirements may apply under current USCIS policy complying with the federal court orders described above.

When should DACA renewal requests be filed?

Given the uncertain future of the DACA landscape, CLINIC recommends that DACA recipients consider filing renewals without delay in the event that the Supreme Court finds the termination of DACA was legal and USCIS stops accepting renewal requests. One possible benefit of filing a renewal request now is that, even if the rescission of DACA is upheld, USCIS could decide to continue processing applications received by a certain date. As mentioned above, a decision from the Supreme Court is expected no later than June 2020.

USCIS has been accepting renewal requests that are filed more than 150 days before expiration. That said, those who apply more than 150 days in advance run the risk of receiving an extension of less than two full years. Some applicants have also reported renewal requests filed more than 150 days in advance being held for a period of time before being adjudicated. Ultimately, it is the decision of each DACA recipient to weigh these potential risks against the benefits of a DACA extension before deciding how early to apply or whether to apply at all.

What should I advise clients who want to apply to renew DACA?

It is unclear how long USCIS will continue to accept DACA renewal requests and whether it will continue to adjudicate pending renewal applications if one or more of the injunctions is overturned. Clients should be advised of the potential for losing their application fees if the Supreme Court allows USCIS to change its current policy before a pending renewal request has been adjudicated. The archived DACA FAQs state that, while USCIS will accept requests submitted earlier than 150 days before expiration, the deferred action period will likely be granted from the date of approval. In other words, filing earlier than 150 days out could result in an overlap between a current DACA grant and the renewal grant. This means that the new renewal period may extend for less than a full two years from the date that the applicant’s current DACA period expires. We recommend counseling potential DACA applicants about the risks of possible rejection if one of the injunctions is reversed, the loss of application fees if USCIS stops adjudications, or a shortened DACA grant for early filers if adjudication continues. Those who choose to move forward despite the risks should file as soon as possible.

Also note that USCIS will reject applications that are not filed using the current edition of the required forms. Currently, USCIS is accepting the 4/24/19 edition of Form I-821D.

Has COVID-19 impacted DACA renewal application processing?

In response to COVID-19 public health concerns, USCIS temporarily suspended all biometrics appointments on March 18, 2020. Because Application Support Centers are temporarily closed, USCIS has indicated it may reuse a DACA applicant’s previously submitted biometrics (photograph and fingerprints) for purposes of processing DACA renewal requests and related Form I-765, Applications for Employment Authorization. CLINIC continues to post updates and resources related to the COVID-19 pandemic at: cliniclegal.org/covid-19.

Will information about DACA requestors or recipients be shared with ICE for enforcement?

No changes have been announced to confidentiality policies described in the DACA rescission guidance posted by DHS on September 5, 2017. When an individual’s DACA grant expires, USCIS will not proactively share his or her personal information with ICE or CBP for immigration enforcement purposes unless the requestor meets the criteria in the 2011 guidance for issuance of a Notice to Appear. When USCIS denies a DACA request, it will not provide the requestor’s information to ICE or CBP unless it determines that he or she poses a risk to national security or public safety or meets the 2011 NTA guidance criteria. These policies were confirmed in the June 28, 2018, NTA policy memo. However, note that the DACA NTA guidance and confidentiality policies are subject to change at any time.

What enforcement risks will individuals face once their DACA expires?

Again, there have been no changes to current enforcement priorities as identified in a January 25, 2017, Executive Order and February 20, 2017, DHS memorandum. These broad priorities essentially include all undocumented individuals, although those with any prior involvement in the criminal justice system or prior removal orders are at greater risk of enforcement. That said, the DACA rescission FAQs do not reference the enforcement priorities, but provide that referrals for enforcement will be made according to the USCIS NTA guidance.

Remind DACA holders that DHS also reserves the right to terminate or revoke individual DACA grants, and those at greatest risk of termination include individuals convicted of a felony, significant misdemeanor, or three or more non-significant misdemeanors. DACA recipients who are suspected of or have been involved with gangs are also at risk of being considered a threat to national security or public safety and having their DACA grant terminated. The 2011 USCIS NTA guidance restricts issuance of an NTA or referral to ICE to cases that involve public safety threats, criminals and aliens engaged in fraud. While there is some overlap between the grounds for termination and the 2011 NTA issuance criteria, they are not identical, so ICE could still issue an NTA if it receives information about a DACA recipient from a source other than USCIS.

Best practices for advocates:

Identify clients for eligibility. Review your caseload and contact those clients who are eligible to renew DACA, i.e. those who were previously granted DACA. Those whose DACA expired more than one year ago must file as initial applicants, while those with current DACA or whose DACA expired one year ago or less may apply as renewal applicants. Determine whether the volume of potential applicants is large enough to consider recruiting pro bono counsel to assist clients in submitting timely renewal applications. Prepare renewal requests promptly in light of the possibility that the U.S. Supreme Court’s decision would require USCIS to cease accepting and/or and adjudicating renewal applications.

Make sure DACA requests are properly completed before submitting. Ensure that renewal applications filed are not rejected. Forms should be fully completed as advised by USCIS (they must include the previous DACA expiration date and be signed). The proper filing fees must be included and the current versions of the required forms must be used. Consider submitting requests via a reliable overnight courier and retaining tracking information.

Screen clients for other immigration relief. DACA recipients should be screened for permanent immigration relief. Some recipients may have requested DACA pro se without an in-depth screening for immigration options. Others may be eligible for remedies that were previously unavailable due to changed circumstances in their home country or personal circumstances. Do not overlook forms of relief available to clients in removal proceedings, such as non-LPR or VAWA cancellation. Visit CLINIC’s DACA page to access our screening tools. Continue to monitor political developments in the event that Congress contemplates legislation that would provide relief to DACA recipients.