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Deferred Action for Childhood Arrivals (DACA)

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

Last updated: September 19, 2023

I. Current State of DACA

On September 13, 2023, the District Court for the Southern District of Texas ruled against DACA. However, the judge issued a stay on his own ruling allowing the case to be appealed with DACA renewals still intact.

The case will likely end up before the Fifth Circuit Court of Appeals and then the Supreme Court. There may not be a decision on the ultimate fate of DACA until May or June 2025. It is very possible that the Supreme Court will agree with the District Court and end DACA once and for all. That is why we need Congress to step in and finally deliver protections for the millions of undocumented people including DACA recipients and DACA-eligible youth.

But for the time being:

  • DHS will continue to process DACA renewals and associated Employment Authorization Document (EAD) applications for current DACA recipients and for applicants who file for a renewal within one year of the expiration of their prior DACA grant. However, this can change after the Fifth Circuit makes a new decision, so renewals should be filed as soon as possible.
  • If you are eligible for DACA but have never applied, DHS can still accept your application but will NOT be able to process it. These applications will be put on hold.

Generally, submitting a DACA renewal application is a relatively simple process that requires submission of the application packet and a copy of the applicant’s work permit. More information on filing is included below.

The cost for a DACA renewal at the time of this publication was $495.

Please note that this information may change depending on the outcome of the pending litigation.  Please refer to the DACA Website and the DACA Litigation Webpage for up-to-date information.

Ultimately, the best solution for all DACA recipients or Dreamers is for Congress to pass bipartisan legislation granting Dreamers, and other undocumented people permanent legal status. The Immigration Equality Action Fund will continue to lobby Congress to demand that they pass the legislation that would provide such a pathway to citizenship.

II. ELIGIBILITY CRITERIA FOR DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

a. What is DACA?

On June 15, 2012, President Obama created a policy called Deferred Action for Childhood Arrivals (DACA), calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program began on August 15, 2012. On August 30, 2022, the Department of Homeland Security published the Biden DACA Rule with the intent to preserve and fortify the DACA policy.

Deferred action is a discretionary, limited immigration benefit by DHS. It can be granted to individuals who have never been in removal proceedings, are currently in removal proceedings, or who have final orders of removal. Individuals who have deferred action can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship. And, it can be revoked at any time. As noted in Section I above there are additional limitations that have been placed on DACA eligibility.

Individuals must meet following criteria to apply for DACA:

  • Were under 31 years of age as of June 15, 2012 (i.e., date of birth is on or after June 16, 1981);
  • Came to the U.S. while under the age of 16;
  • Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five-year period, brief absences from the United States for humanitarian reasons will not be included);
  • Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
  • Any lawful status after June 15, 2012 expired before initial application for DACA;
  • Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  • Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
  • Have not been convicted of a felony offense, a misdemeanor described in 8 CFR 236.22(b)(6), or more than three misdemeanors of any kind; and
  • Do not pose a threat to national security or public safety.

Applicants will have to provide substantial documentary evidence of the above criteria. In addition, every applicant must complete and pass a biographic and biometric background check.

III. SPECIAL CONSIDERATIONS

a. Criminal Conviction

DHS will deem as disqualifying from DACA a single misdemeanor conviction if it is a misdemeanor as defined by Federal law (specifically, one for which the maximum term of imprisonment is 1 year or less but greater than 5 days) and meets the following criteria:

  1. If the misdemeanor conviction involving any of the following, regardless of the sentence imposed, it will disqualify an applicant from DACA:
  • burglary;
  • domestic violence;
  • sexual abuse or exploitation;
  • unlawful possession of firearms;
  • driving under the influence; or
  • drug distribution or trafficking.

  • In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences or time held pursuant to an immigration detainer, will be deemed a disqualifying misdemeanor.

b. Age Requirements

Generally, in order to apply for DACA, an applicant must be at least 15 years of age at the time they apply. The exception to this rule is if the applicant is in removal proceedings, has a final order of removal or has an order of voluntary departure. If so, they can seek DACA even if they are below the age of 15.

If the applicant was 31 years of age or older as of June 15, 2012 they are not eligible for DACA.

c. “Currently in School”

If an applicant is not currently in school, but would like to re-enroll in high school, they could still qualify for DACA. To be considered “currently in school”, USCIS will look to whether the applicant is enrolled at the time they submit the application. Many kinds of educational institutions or programs may be sufficient to meet the “school” requirement. The following information is pasted directly from the USCIS website:

To be considered “currently enrolled in school” under  8 CFR 236.22(b)(5), you must be enrolled in:

  • A public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or homeschool program that meets state requirements;
  • An education, literacy, or career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
  • An education program helping students obtain a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other state-authorized exam (such as HiSet or TASC) in the United States.

Education, literacy, and career training programs (including vocational training), or education programs helping students obtain a regular high school diploma or its recognized equivalent under state law, or in passing a GED exam or other state-authorized exam in the United States, may include, but are not limited to, programs wholly or partially funded by federal, state, county or municipal grants or administered by nonprofit organizations. Programs funded by other sources may qualify if they have demonstrated effectiveness.

In assessing whether programs are of demonstrated effectiveness, USCIS will consider:

  • The duration of the program’s existence;
  • The program’s track record in:
    • Assisting students in obtaining a regular high school diploma or its recognized equivalent;
    • Passing a GED or other state-authorized exam (such as HiSet or TASC); or
    • Placing students in postsecondary education, job training, or employment; and
  • Other indicators of the program’s overall quality.

If you seek to demonstrate that you are “currently enrolled in school” with your enrollment in such a program, you must show the program’s demonstrated effectiveness.

d. Interrupted Stay in the U.S.

A brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to July 15, 2012 will not affect an applicant’s eligibility for deferred action if the absences from the U.S. are brief, casual, and innocent. Absences will be considered to be brief, casual and innocent if:

  • it was on or after June 15, 2007, and before August 15, 2012;
  • it was short and reasonably calculated to accomplish the purpose of the absence;
  • it was not because of a post June 15, 2007 order of exclusion, deportation or removal;
  • it was not because of a post June 15, 2007 order of voluntary departure, or an administrative grant of voluntary departure before an applicant was placed in removal expulsion, deportation or removal proceedings; and
  • the purpose of the absence, or an applicant’s actions while outside of the U.S., were not contrary to law.

IV. APPLICATION AND FILING FEE

All applications for deferred action should be submitted directly to USCIS on Form I-821D. Even if an applicant is in removal proceedings or has been ordered removed, the application still goes to USCIS. If the applicant is detained, then they should alert their detention officer that they want to apply.

a. Forms and Evidentiary Documentation

In order to apply for DACA, applicants must submit the following forms or their application will be returned to them:

  • Form I-821D Consideration of Deferred Action for Childhood Arrivals;
  • Form I-765 Application for Employment Authorization Document;
  • Form I-765 WS –EAD economic need supplement form
  • Additionally, applicants will need to submit documentary evidence that they meet all of the criteria to qualify for deferred action (age; entry date; continuous presence; educational or military documentation; etc.)
  • Application fees as listed on www.uscis.gov.

In order to prove the physical presence requirement, substantial evidence must be submitted. You should try to submit at least one proof for every month.

b. Filing Fee

It is recommended to visit the USCIS website for the most recent information regarding the filing fee for DACA. There is no fee waiver available for DACA. However, there may be a fee exemption under very limited circumstances for individuals who are in foster care, are disabled, or have medical-care-related debt and whose income is below 150% of the poverty level.

V. EMPLOYMENT AUTHORIZATION DOCUMENT (EAD)

Currently, while USCIS is accepting initial Employment Authorization Document requests under DACA, it is not granting them.

Every individual who is granted deferred action will be lawfully permitted to work. However, in order to be permitted to work, applicants must include an application for an Employment Authorization Document (EAD) in their application, which, when granted, will be valid for a period of two years and may be renewed. Applicants must wait until the EAD is issued prior to beginning employment.

It is important to note that the grant of deferred action does not grant lawful immigration status to an applicant. In addition, it does not cure the applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not be deemed to be accruing unlawful presence in the U.S. during the time period when deferred action is in effect.

VI. ADVANCED PAROLE

DACA recipients can only travel outside the U.S. if they apply for and receive advanced parole before they travel.  If someone leaves the country without advanced parole being granted they will not be permitted back into the United States. Currently, however, USCIS is only granting advanced parole requests from DACA recipients for exceptional circumstances.  Moreover, even if you have advance parole, you will be inspected at the border when you return, and there is always a possibility that you could be denied entry. Therefore, even if a DACA recipient has advance parole on the basis of their DACA status, they should not travel outside the United States without consulting an immigration attorney. Also, DACA recipients should not travel outside the contiguous 48 states of the United States due to the presence of Customs and Border Patrol at airports. While  Alaska and Hawaii are indisputably part of the United States, CBP has begun to police them as though they were foreign jurisdictions and you may be detained or denied entry. Additionally, CBP treats travel from a U.S. territory to the United States as foreign travel, and if you do not have a valid passport and visa, or other entry document to the United States, you could be denied entry. Therefore, if you are a DACA recipient, you should not travel to or from a U.S. territory, Alaska, or Hawaii.

VII. APPEALABILITY

A denial of an application for deferred action cannot be appealed.  However, the applicant could file again (and pay the fee again).

VIII. ALWAYS SEEK LEGAL ADVICE

Note that it may be risky to apply for DACA. Individuals should only apply after consulting with a qualified attorney. If an individual is here unlawfully and USCIS or ICE finds that they do not meet the criteria for DACA, they may be placed in removal proceedings. Additionally, even if they are granted DACA, the status is completely discretionary and can be revoked in the future.

DACA is only a temporary measure and is not intended to, and does not grant, legal status to the individuals that the DREAM Act seeks to benefit. Given that only Congress can confer the right to lawful permanent resident status or citizenship, it is essential that we continue to work towards the passage of the DREAM Act.

As we learn more from USCIS we will post more information here. If you have specific questions about whether you qualify, please use the contact us page on our website to submit your question. There is also useful information on the USCIS site.

IX. Legal Challenges to DACA

In 2017, the Acting Secretary of Homeland Security rescinded the Deferred Action Childhood Arrivals (DACA) program, which led to a number of lawsuits across the country challenging the rescission. The Fourth and the Ninth Circuit Courts of Appeal, along with a number of district courts, ruled that the decision to rescind DACA was “arbitrary and capricious,” and therefore unlawful. The Ninth Circuit also upheld a nationwide preliminary injunction halting the repeal of DACA. The government petitioned the Supreme Court, which granted certiorari to hear the case. Oral arguments were heard by the Court on November 12, 2019.

Arguing the other side of the coin, on May 1, 2018, Texas and six other states filed a lawsuit challenging the constitutionality of DACA. The District Court Judge in the Texas case, Judge Hansen, ruled that DACA is likely unconstitutional, but let the program stay in place pending litigation. The Judge stayed the case until after the Supreme Court made its decision on the other case.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California, the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program. Just as the lower courts had found, the Supreme Court held that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). Notably, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program.

This decision was enforced a month later in Casa de Maryland v. U.S. Department of Homeland Security, in which a federal judge in the U.S. District Court of Maryland ordered the Department of Homeland Security (DHS) to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

After the Supreme Court ruled that the rescission of DACA was arbitrary and capricious, Judge Hansen resumed the Texas case.

In July 2020, Chad Wolf signed a memo (the Wolf Memo) which limited DACA applications and renewals. However, on November 14, 2020, in Batalla Vidal et al v. Wolf et al, the Eastern District of New York ruled that Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security when he issued the memo. Then, on December 4, 2020, the Judge ordered the Wolf memo vacated and for the DACA program to go back to Obama-era rules.

President Biden issued an executive order reinstating DACA on January 20, 2021. Then, on July 16, 2021, Judge Hansen ruled that the DACA memorandum of 2012 was “created in violation of the law” and “illegally implemented.” The Judge ordered a permanent injunction prohibiting the government’s continued use of DACA and the reimplementation of DACA without compliance with the Administrative Procedures Act. However, the court stayed part of its order vacating DACA with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests. The ruling was appealed to the Fifth Circuit Court of Appeals.

On September 28, 2021, the Department of Homeland Security published a Notice of Proposed Rulemaking that proposed to establish regulations to preserve and strengthen DACA. The final rule was published on August 30, 2022 and was set to go into effect on October 31, 2022 (The Biden DACA Rule).

On October 5, 2022, The Fifth Circuit upheld the Judge Hansen’s 2021 ruling that the 2012 DACA memo was unlawful, but did not address the new Biden DACA Rule. The Fifth Circuit remanded the case to the Judge Hansen to consider the Biden DACA Rule.

On October 14, 2022, Judge Hansen issued an order extending its injunction and partial stay to the Biden DACA Rule. And most recently, on September 13, 2023, Judge Hansen ruled that the Biden DACA Rule was unlawful and vacated the rule. The Judge, however, stayed the impact of this ruling pending appeal for individuals who obtained DACA on or before July 16, 2021, including those with renewal requests. Additionally, Judge Hansen ruled that DHS may continue to accept initial applications for DACA, but may not grant them.

FREQUENTLY ASKED QUESTIONS (FAQs)

Many of you have contacted Immigration Equality to ask “what do I do now?” Below, you will find our frequently asked DACA questions.

1) I currently have DACA and it will expire in the next 6 months. Can I renew my DACA?

Yes. The government has resumed DACA renewals – at least for now. You can apply if your DACA is expiring within the next 6 months (180 days) and if you are in the same legal position as you were when you filed your original DACA application. However, if you have been arrested, charged with a crime, convicted of a crime, or accused of violating immigration laws in some way, you should consult with an attorney before filing your renewal application. USCIS strongly recommends that you file your renewal application between 150  and 120 days before the current grant of DACA expires.

2) Why does USCIS recommend that I submit my renewal application between 150 and 120 days before my current DACA expires, and not any sooner or any later?

USCIS aims to process all DACA applications within 120 days after they are received by USCIS. If you submit your application earlier than 150 days before your current DACA expires, your application may be approved before your current DACA expires. This may result in an overlap between your current DACA period and the renewed DACA period. If that happens, you would get DACA for less than the full two-year period.

If you submit your application less than 120 days before your DACA expires, your application might not get adjudicated till after your current DACA expires, which would lead to a lapse in your DACA period and also your employment eligibility. This is why USCIS recommends you submit your renewal application between 150 and 120 days before your current DACA expires.

If you have timely submitted your application, and it has been pending for more than 105 days, you may submit an inquiry online for “Case outside normal processing time”

3) Can I apply for DACA for the first time ever now?

Technically, yes. You can. However, note that while USCIS is accepting requests from individuals who have never before been granted deferred action under DACA, or whose DACA expired more than one year ago, or whose DACA status was terminated, they are not adjudicating these applications. These applications are being placed on hold.

4) Can I apply for advance parole?

Currently, USCIS is only granting advanced parole requests from DACA recipients  for exceptional circumstances, such as:

  •  Humanitarian purposes, including travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative;
  • Educational purposes, such as semester abroad programs and academic research; or
  • Employment purposes, such as overseas assignments, interviews, conferences or training, or meetings with clients overseas.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances. 

Moreover, even if you have advance parole, you will be inspected at the border when you return, and there is always a possibility that you could be denied entry. Therefore, even if a DACA recipient has advance parole on the basis of their DACA status, they should not travel outside the United States without consulting a qualified immigration attorney.  Also, DACA recipients should not travel outside the contiguous 48 states of the United States due to the presence of Customs and Border Patrol at airports. While Alaska and Hawaii are indisputably part of the United States, CBP has begun to police them as though they were foreign jurisdictions and you may be detained or denied entry. Additionally, CBP treats travel from a U.S. territory to the United States as foreign travel, and if you do not have a valid passport and visa, or other entry document to the United States, you could be denied entry. Therefore, if you are a DACA recipient, you should not travel to or from a U.S. territory, Alaska, or Hawaii.

5) I want to renew, but I’m afraid about what will happen in the future. What if the DACA program is terminated for good?

Because there is a possibility that DACA may end in the near future, we encourage applicants who are eligible to renew right away. If DACA does end, it may be that those with DACA at the time of the end of the program will be allowed to stay in that status until it expires. We always recommend that an applicant speak with an attorney first before applying but even more so for those individuals who have complicated immigration histories or who have had run-ins with the law.

6) I want to apply and I am otherwise eligible I but have a criminal history that might affect my claim. Should I apply?

We recommend you speak with an immigration attorney regarding your case and your criminal history. Your legal representative should advise you on the potential consequences your criminal history may have on your eligibility for DACA. We strongly discourage anyone with a criminal history from applying for DACA unless you speak to a legal representative first. This is true even if you have DACA and are considering renewing your status.

7) I provided the U.S. Citizenship and Immigration Services with my address when I applied for DACA. How likely is it that ICE agents are going to come to my home?

For as long as you live at an address known by the immigration agents, you may be at risk. Please read our know your rights advice on how you can stay safe.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

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