DACA: Where We’ve Been, Where We’re Going

A brief overview of DACA’s long and winding road and its current status

DACA

By Molli Freeman-Lynde, Immigration Attorney

Origins of DACA

The Obama administration created the Deferred Action for Childhood Arrival program, known as DACA, on June 15, 2012. The program was created to provide relief from deportation and work authorization for a temporary period of two years at a time, renewable indefinitely, for young undocumented immigrants who met certain requirements.

Applicants qualify for DACA if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Arrived in the United States before reaching their 16th birthday;
  3. Continuously resided in the United States from June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of applying for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.(Source: https://www.uscis.gov/DACA#guidelines).

Because DACA was created through executive and not legislative action, it does not and cannot provide any permanent legal status to recipients. Nonetheless, it has been a critical form of relief for over 800,000 young adults living and working in the U.S. since its creation. Individuals who are granted DACA have work authorization and are generally able to secure better jobs with higher pay, more benefits, and greater stability than undocumented immigrants. They also face less uncertainty about their day-to-day protection from deportation.

Legal Challenges to DACA

The DACA program became a focal point of the Trump administration’s anti-immigrant platform, and in September 2017 the administration announced that they were ending DACA. This sudden announcement sparked years of back-and-forth litigation that continues to this day. Highlights of this litigation include the following.

In June 2020, the Supreme Court ruled in a narrow holding that the Trump administration violated procedural requirements in their manner of terminating DACA, without ruling on the legality of the program itself. While limited in scope, this ruling ended the Trump administration’s effort to terminate the DACA program.

Despite this ruling, USCIS under Trump continued to limit DACA applications. In a July 2020 memorandum, the agency announced that it would not process new applications and that it would limit DACA renewals to one year of validity instead of two. This USCIS memorandum was reversed by a federal judge in December 2020, who ordered the U.S. government to fully restore DACA and resume processing all new applications.

When President Biden took office in January 2021, one of his first executive orders directed the Department of Homeland Security to “take all actions … appropriate … to preserve and fortify DACA.” This was welcome news for DACA recipients, who had been dealing with the changing rules for several years.

Unfortunately, the reprieve was short lived. On July 16, 2021, a federal judge in Texas ruled that the entire DACA program is unlawful. (You can access a pdf of the decision here: https://www.uscis.gov/DACA.) The judge’s initial order allows current DACA recipients to continue to hold DACA and for USCIS to process renewal applications, but it halts processing for new applications pending a final disposition of the court case. The Biden administration has appealed the decision to the 5th Circuit and that appeal is currently pending.

The Future of DACA

While the most recent District Court decision winds its way through the court system, USCIS is processing DACA renewals and accepting but not adjudicating new applications. DACA recipients with valid employment authorization documents (“EAD”) continue to be eligible for employment. Employers who seek to employ a DACA recipient should verify that the individual has an EAD with the code “C33” and should note the expiration date. DACA recipients do not benefit from an automatic extension of work authorization and should file applications to renew their DACA and employment authorization 150 days prior to expiration to avoid a gap in coverage.

With the fate of DACA resting once again on the courts, DACA recipients are increasingly looking for other avenues to secure temporary or permanent status. Congressional action could provide a path to permanent residence for DACA recipients and similarly situated young undocumented immigrants. There are a range of proposals that are being considered for inclusion in upcoming legislation, but it is unclear what the final version of the legislation would look like or whether it can garner enough support for passage.

Employment-Based Sponsorship for DACA Recipients

In the meantime, individuals who hold DACA may be eligible for employment-based sponsorship for temporary or permanent lawful status depending on the specifics of their case. If you are an employer looking for more information about how to sponsor an employee who currently holds DACA, please contact your Parker Gallini immigration attorney for a consultation.

Posted in Immigration Law

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