ALERT: DACA Restored by Court Order: Initial Applications and Advance Parole Being Accepted

Uncertain how long order will be in effect: Immediate Action May Be Advisable

On December 4, 2020, the United States District Court for the Eastern District of New York ordered the government to restore the Deferred Action for Childhood Arrivals (DACA) program[1] in full.

USCIS was directed to publish information on its website by December 7 explaining that in accordance with the court order:

• USCIS is accepting first-time requests for DACA consideration;
• USCIS is continuing to accept DACA renewal requests;
• USCIS is accepting requests for “advance parole” travel authorization; and
• Grants will be for two years rather than one and any person given a one year grant will have the grant automatically extended to two years.

The court order is effective nationwide immediately.

However, DACA remains under threat and the window people have to file the applications may be small.  First, the government may seek a stay of the judge’s order while appealing to the circuit court.  Second, in a separate case in a federal court in Texas, a federal court is currently considering a challenge to the legality of the DACA program.  Judge Hanen, who is presiding over the Texas challenge, is the same judge who ruled an expansion of the 2014 expansion of the DACA program unlawful. The next court date in the Texas case is set for December 22.

With uncertainty still reigning about the future of DACA, there may be a great advantage to filing applications immediately—before any stay of the court order and before Judge Hanen makes a ruling in the Texas case.

We recommend that anyone considering applying for DACA for the first time or applying for DACA-based travel authorization consult with an immigration attorney immediately. To consult with the attorneys at Joseph & Hall, please contact our office at 303-297-9171.

[1] A grant of DACA provides protection against deportation, protection against the accrual of unlawful presence, and the ability to work with DHS authorization. Applicants are qualified to request DACA if they:

• Were under age 31 as of 6/15/2012;
• Arrived in the U.S. before turning 16;
• Have continuously resided in the U.S. since 6/15/2007 to the present;
• Were physically present in the U.S. and had no lawful immigration status on 6/15/2012;
• Are currently in school or have graduated high school, obtained a GED, or are in the process of obtaining a diploma or GED (or are an honorably discharged veteran; and
• Have not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors and do not otherwise pose a threat to national security or public safety.