Government Resumes Accepting Certain DACA Requests in Response to Court Order

Introduction

On January 13, 2018, the United States Citizenship and Immigration Services (USCIS) announced that it has resumed accepting requests for renewal under the Deferred Action for Childhood Arrivals (DACA) program in response to a court order [PDF version]. The USCIS explained that “unless otherwise provided … the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.”

Before continuing with this post, please see our articles on the decision to rescind the DACA memorandum (regularly updated with new developments) [see article] and the court order enjoining the DACA rescission [see article].

Renewal Process and Applicability

Individuals who were previously granted DACA relief may file for renewal. In order to apply for renewal, the applicant must properly file the following USCIS forms:

• Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
• Form I-765, Application For Employment Authorization; and
• Form I-765 Worksheet.

It is important to note that even under this policy, the USCIS is not accepting requests from individuals who have never before been granted DACA relief. Furthermore, the USCIS is not accepting or approving any advance parole requests from DACA recipients.

Instead, the only individuals now eligible for DACA renewal are those who:

• Previously received DACA; and
• Whose DACA benefits expired on or after September 5, 2016.

Those two requirements mean that individuals who previously received DACA, but whose DACA benefits expired before September 5, 2016, are not eligible to request DACA as a renewal. This is because DACA renewal applications must be filed within one year of the expiration of when DACA benefits expired. However, such individuals may file new initial DACA requests in accord with the Form I-821D and Form I-765 instructions. This is because such individuals are covered by the recent court order.

Conclusion

The USCIS is, for now, complying with the court orders from Judge William Alsup of the United States District Court for the District of Northern California in re-implementing DACA as it existed prior to September 5, 2017. As we noted in our article on the initial injunction, the Government is expected to appeal from Judge Alsup's decision in the near future. Furthermore, for a variety of reasons, the Government likely has a good chance at obtaining a stay of the injunction and ultimately prevailing in the litigation. However, that does not change the fact that for at least a limited period, individuals who previously received DACA may seek DACA renewal or file new initial DACA applications. Because this policy change may be short-lived, those who are affected and interested in applying should consult with an experienced immigration attorney immediately for a consultation and case-specific guidance.

We will continue to update the website with information on this important issue as it becomes available.

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