Federal Judge Orders DHS to Restore DACA and Accept Initial DACA Applications

On December 4, U.S. District Court Judge Nicholas Garaufis of the Eastern District of New York ordered the DHS to begin accepting new applications for Deferred Action for Childhood Arrivals (DACA). The court had previously held that Chad Wolf was not lawfully serving as DHS Acting Secretary when he issued a July 28, 2020 memorandum that refused to fully restore DACA after a ruling in the U.S. Supreme Court.

USCIS has indicated that DHS “will comply with the order while it remains in effect, but DHS may seek relief from the order.” Accordingly, effective December 7, USCIS began accepting first time requests for deferred action under DACA, accept applications for advance parole based on terms of DACA policy prior to September 5, 2017; extend one-year grants of deferred action under DACA to two years; and extend one-year grants of employment authorization documents under DACA to two years.

USCIS also indicated that it “will take appropriate steps to provide evidence of the one-year extensions” for DACA recipients who were issued documentation on or after July 28, 2020, with only a one-year validity under the defunct policy.

The court’s decision and USCIS’s compliance will likely benefit hundreds of thousands of undocumented individuals who arrived in the United States as children. While there is currently an estimate of 650,000 DACA recipients, there are roughly over 1.3 million DACA-eligible individuals in the United States, many of whom were ineligible to apply because of the 2017 DACA rescission and prohibitions against initial applications. Likewise, as the program requires applicants be at least 15 years old to apply, there are tens of thousands of individuals who have yet to become eligible to apply.

As noted in previous newsletters, DACA only offers a temporary protection from deportation and provides for employment authorization. The program, created by President Obama in 2012, does not offer a direct pathway to permanent residence or citizenship in the United States.

DACA-eligible individuals considering filing initial applications should consult with an immigration attorney to evaluate the risks and benefits of applying. Likewise, all DACA-eligible individuals should strategize with their attorney to preserve and pursue legal options available to them to obtain permanent residence.