Current Status of DACA

On June 18, 2020, the U.S. Supreme Court (SCOTUS) released its opinion in the Department of Homeland Security et al. v. Regents of the University of California et al. case, holding that the 2017 Department of Homeland Security (DHS) memo that rescinded DACA was “arbitrary and capricious” under the Administrative Procedure Act and remanding the issue back to DHS for the agency to consider anew the “conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” This leaves DACA intact for now, but the administration is expected to try again to rescind it.

In the meantime:

  1. USCIS will continue to accept limited kinds of DACA requests, as described in its July 17, 2019 DACA status update:
    • USCIS will continue to accept timely-filed DACA renewal requests from individuals already granted DACA
    • USCIS will continue to accept "late-filed" DACA renewal requests from individuals whose period of DACA expired less than a year ago
    • USCIS will continue to accept new initial DACA requests from individuals who had previously been granted DACA but whose period of DACA expired more than one year ago
  2. As a result of the June 28, 2020 SCOTUS decision, though, DHS will have to develop and publish guidance to restore processing DACA-based advance parole and new initial requests for DACA from individuals who had never been granted DACA in the past. An individual may not apply for those benefits yet, until USCIS publishes procedures and guidance on how to do so.
  3. The administration is expected to try again to rescind DACA in a way that would comply with “the procedural requirement that it provide a reasoned explanation for its action.”

NAFSA encourages members to advise DACA students to seek the counsel of an experienced immigration lawyer or recognized/accredited organization or representative regarding their DACA eligibility and filings. For students at schools that do not maintain a list of immigration lawyers, the American Immigration Lawyers Association (AILA) web tool at www.ailalawyer.org can be a good place to look for an immigration lawyer.

Recent Litigation

On June 18, 2020, the U.S. Supreme Court (SCOTUS) released its opinion in the Department of Homeland Security et al. v. Regents of the University of California et al. case, holding that DHS’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act, and remanding the issue back to DHS.

Background

On September 5, 2017, the Trump administration rescinded DACA, providing a six-month period to "wind down" the program. A September 5, 2017 memo by DHS Acting Secretary Elaine C. Duke officially rescinded the June 15, 2012, memorandum that created the DACA program. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS resumed accepting requests to renew a grant of deferred action under DACA until further notice.

DACA Students and Study Abroad

Prior to the September 5, 2017 rescission of DACA, DHS had been approving applications for travel authorization called advance parole, which DACA students could use to travel abroad for "education, humanitarian and work purposes," including participating in study abroad programs. The September 5, 2017 DACA rescission memo impacted DACA advance parole in the following ways:

  • DHS stated it will "generally honor" previously approved DACA advance parole for the stated validity period, but noted that CBP retains its authority to determine the admissibility of anyone presenting themselves at a U.S. port of entry, and that USCIS retains the right to revoke or terminate an advance parole document at any time
  • USCIS will not approve any new Form I-131 applications for DACA advance parole received after September 5, 2017
  • Will administratively close all pending Form I-131 applications for DACA advance parole not approved before September 5, 2017, and refund the applicant's filing fee

As a result of the June 28, 2020 SCOTUS decision, though, DHS will have to develop and publish guidance to resume processing DACA-based advance parole. An individual cannot apply for DACA-based advance parole however, until USCIS publishes procedures and guidance on how to do so.

Even before September 5, 2017, reentry to the United States could never be guaranteed, even with advance parole authorization and the approval of a university or education abroad office. NAFSA strongly encourages DACAmented students to seek the advice of an immigration attorney to weigh this risk before departing the United States to participate in a study abroad program. DACA students with an approved grant of advance parole who are currently abroad or are considering traveling abroad should also consult with their immigration lawyer about returning to or departing the United States.

Considering options for the future

What's in store for the future for DACA students? Since the outset of the DACA program, NAFSA has encouraged members to advise students interested in DACA benefits to seek the counsel of an experienced immigration lawyer. That advice is even more important now. An experienced immigration lawyer can help sift through possible scenarios, weigh risks, and evaluate the person's individual situation.

DACA students may also be concerned about whether the information they provided as part of their DACA applications will be used for enforcement purposes once their DACA benefits end. You may want to share the following DHS FAQs with students to discuss with their lawyer:

Q7: Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?

A7: Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

Q8: Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?

A8: Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security of public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

There are also efforts to pass a statute that would protect DACA recipients and DACA-eligible individuals. NAFSA is supporting passage of the Dream Act and similar bills. Get involved now by encouraging your representatives in Congress to vote in favor of the Dream Act.

Basic DACA Eligibility Criteria (for reference purposes)

The information presented below has been collected to provide clear information to NAFSA members and other international education professionals regarding the DACA program. The information is not intended to constitute legal advice and should not be relied upon as such. Please note that while NAFSA aims to help student advisers become aware of how the DACA program works, individuals who wish to assess their eligibility or to renew DACA benefits during the six-month DACA rescission period should be counseled to consult an experienced immigration lawyer or recognized/accredited organization or representative for legal advice or for legal assistance in applying for any DACA benefit.

Under the program, starting August 15, 2012 qualified individuals became eligible to request DACA consideration if they:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching their 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  • Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
  • 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
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
  • Are at least 15 years of age at the time of applying for DACA benefits (some exceptions apply)

DACA benefits are granted in increments of two years. Remember, though, that deferred action is a discretionary benefit for individuals who would otherwise be removable from the United States. USCIS will decide applications on a case-by-case basis. Although student advisers may wish to be generally aware of how the program works, individuals who wish to assess their eligibility for DACA-related benefits should be counseled to consult an experienced immigration lawyer or recognized/accredited organization or representative for legal advice or for legal assistance. Individuals should also be aware of immigration scams. USCIS urges individuals to visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services. Advisers may also want to direct people to the American Immigration Lawyers Association's (AILA) AILA Consumer Advisory: Deferred Action for Certain Young Immigrants: Don't Get Scammed!