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DACA : Latest Court Rulings and Who Can Still Apply

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By James Pittman 3 min read

The creation of the DACA program by the Obama administration in 2012 brought hope to over a million young people who who were brought to the United States without immigration documents as children. DACA is an acronym for Deferred Action for Childhood Arrivals. Created by Executive Order, this program allowed those without legal status to be protected from deportation and apply for work authorization if they were under 16 when they were brought to the US, graduated from or were currently enrolled in high school or had earned a General Equivalency Diploma (GED), and did not have a criminal record, among other requirements. Hundreds of thousands of young people appllied for DACA status, were granted work authorization, and have been moving forward with their lives.\ \ However, President Donald Trump, since his emergence as a national political figure, has criticized and attacked DACA and promised to rescind the executive order that created it. Soon after his inauguration, he began to fulfill this promise. On September 5, 2017, Attorney General Sessions made a public statementannouncing the rescission of DACA. The same day USCIS issued a Memorandum stating that USCIS would no longer accept initial DACA requests or renewal requests except for those that fit within a certain narrow time-frame.

\ The actions of the AG and USCIS provoked a wave of litigation. At the present time there are two federal injunctions in place, aJanuary 9, 2018 injunctionfrom the Northern District of California, and a February 13, 2018 injunctionfrom the Eastern District of New York. Essentially these judicial decisions require USCIS to hold open the DACA program on the same terms as it existed before the AG’s announcement. USCIS is not presently accepting requests from individuals who have never before been granted deferred action under DACA, nor is it accepting any requests for Advance Parole based on a grant of DACA.\ \ Tips for Preparing DACA Application Packages:

  • DACA requests are filed on Form I-821D. Applications for Employment Authorization based on a DACA request are filed on Forms I-765 and I-765WS. Attorneys entering their appearance to represent the Applicant must file Form G-28.
  • Applicants who previously received DACA and whose DACA expired on or after Sept. 5, 2016, may still file a DACA renewal request. They should list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
  • Applicants who previously received DACA and whose DACA expired before Sept. 5, 2016, or whose most recent DACA grant was previously terminated, cannot request DACA as a renewal because renewal requests typically must be submitted within one year of the expiration date of the last period of deferred action approved under DACA. Instead, these Applicants may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing ther DACA request for acceptance, if filing a new initial DACA request because the Applicant’s DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list (if available) the date the prior DACA grant expired or was terminated on Part 1 of the Form I-821D.

James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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