Current Status of DACA
- DHS published a proposed DACA rule in the Federal Register on September 28, 2021, with a 60-day comment period that closed on November 29, 2021. See 86 FR 53736 (September 28, 2021).
- On November 29, 2021, NAFSA joined other higher education associations in a comment letter led by the American Council on Education (ACE), submitted in response to the September 28, 2021 proposed DACA rule.
- Summary of the proposed DACA rule
- The proposal maintains the program's existing eligibility criteria as established in 2012, and recipients would still receive 2 years of protection from removal (deferred action).
- However, whereas under the current program applicants are required to apply for employment authorization (on Form I-765) at the same time they apply for DACA deferred action (on Form I-821D), under the proposal applying for employment authorization is optional. In both the current and proposed programs, applicants must establish economic need on Form I-765WS worksheet to qualify for work authorization.
- In terms of fees, under the current program all DACA applicants must pay $495, which covers the mandatory Form I-765 employment authorization fee of $410 and the mandatory biometric services fee of $85. Under the current program, the underlying Form I-821D DACA application has no charge. Under the proposal, the fee for the underlying Form I-821D DACA application would be $85, which would appear to include the biometic services fee. An applicant who also wanted to apply for employment authorization would then have to also pay the I-765 fee of $410, but would likely not have to pay an additional biometric services fee.
- Following the completion of the public comment period, DHS will review submitted comments before issuing a final rule.
- The proposal had appeared in the Spring 2021 regulatory agenda - DHS/USCIS RIN: 1615-AC64: Title: Preserving and Fortifying Deferred Action for Childhood Arrivals. Abstract: "On June 15, 2012, DHS established the Deferred Action for Childhood Arrivals (DACA) policy. The policy directed USCIS to create a process under which DHS exercises prosecutorial discretion, on an individual case-by-case basis, by deferring action against certain individuals who came to the U.S. as children, met other guidelines, and warranted a favorable exercise of discretion. On January 20, 2021, President Biden signed a Presidential Memorandum, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), requiring DHS, in consultation with the Attorney General, to take all appropriate action to preserve and fortify DACA, consistent with applicable law. Consistent with the Presidential Memorandum, DHS intends to engage in notice-and-comment rulemaking to preserve and fortify DACA."
Update: Litigation. Case No. 1:18-cv-00068. State of Texas et al v. United States of America et al.
- On May 1, 2018, plaintiffs (States of Texas, Alabama, Arkansas, Kansas, Louisiana, Nebraska, South Carolina, West Virginia, and Governors Paul LePage of Maine and Phil Bryant of Mississippi) filed suit in the U.S. District Court for the Southern District of Texas, seeking to strike down the DACA memo and program. Judge Andrew Hanen presiding.
- On July 16, 2021, Judge Hanen ruled that the 2012 DACA program begun by the Obama administration violated the Administrative Procedure Act (APA) notice and comment requirements, and that it was not in accordance with the Immigration and Nationality Act. The court therefore vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., "those not already granted by the date of this order"). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection, including ancillary requests for DACA advance parole for those DACA recipients. Read the July 16, 2021 court order, and read the July 16, 2021 injunction order.
- On September 10, 2021, the Department of Justice filed a notice of appeal to the Fifth Circuit Court of Appeals seeking to overturn the Texas District Court's ruling by U.S. District Court Judge Andrew Hanen in favor of nine states led by Texas that found the creation of the DACA program violated federal administrative law.
Update: USCIS guidance.
USCIS said in a July 19, 2021 Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision:
“Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests.
All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.
USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form. USCIS will comply with the court order, continue to implement the components of DACA that remain in place, and work on publishing a Notice of Proposed Rulemaking designed to strengthen and fortify DACA.”
USCIS updated its DACA FAQs on July 27, 2021.
Update: Presidential Memorandum.
On January 20, 2021, President Biden signed a Presidential Memorandum that directed the Secretary of Homeland Security, in consultation with the Attorney General, to "take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA." See Memorandum for the Attorney General and the Secretary of Homeland Security, published in the Federal Register at 86 FR 7053 (January 25, 2021).
Background on DACA Status
The Deferred Action for Childhood Arrivals (DACA) program was begun under the Obama administration, through a June 15, 2012 DHS memorandum.
The Trump administration attempted to rescind DACA through a September 5, 2017 memo by then Acting DHS Secretary Elaine Duke that provided a six-month period to "wind down" the program. Read NAFSA's March, 2018 Issue Brief: Immediate Impact of Terminating DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, however, USCIS resumed accepting requests to renew DACA, while DHS reconsidered the program.
On June 18, 2020, the U.S. Supreme Court released an opinion in the Department of Homeland Security et al. v. Regents of the University of California et al. case, holding that the 2017 Duke 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." Read NAFSA's Statement: NAFSA Celebrates Supreme Court Decision Protecting DACA; Calls on Congress to Pass the Dream Act. In its decision, however, the Supreme Court did not address the underlying issue of the legality of DACA.
On July 28, 2020, a DHS memorandum issued by Acting DHS Secretary Chad Wolf rescinded the September 5, 2017 Duke memo, but instituted the following restrictions as DHS continued a full "de novo" reconsideration of DACA policy as directed by the U.S. Supreme Court's June 18, 2020 decision:
- Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
- Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
- Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
- Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.
- Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
- Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
- Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
- Continue to comply with the information-sharing policy as reflected in the DACA Frequently Asked Questions issued alongside the Napolitano Memorandum, and as set forth in USCIS's Form I-821D instructions. Nothing in this memorandum makes any change to that policy.
On August 24, 2020, USCIS announced August 21, 2020 implementing guidance titled Implementing Acting Secretary Chad Wolf's July 28, 2020 Memorandum, "Reconsideration of the June 15, 2020 Memorandum 'Excercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.'" An August 24, 2020 news alert summarized the August 21, 2020 implementing guidance as follow:
"Under USCIS' implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.
For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien's DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.
USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires. USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.
The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:
Travel to support the national security interests of the United States;
Travel to support U.S. federal law enforcement interests;
Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.
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.
CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA."
On November 14, 2020, the U.S. District Court for the Eastern District of New York granted the plaintiffs' motion for summary judgment against DHS regarding the July 28, 2020 memorandum signed by Acting Secretary Chad F. Wolf. The court found that that "Mr. Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA when he issued the Wolf Memorandum." On December 4, 2020, that court ordered DHS to reinstate the DACA policy that was in effect on September 4, 2017. In accordance with this order, USCIS began:
- Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to Sept. 5, 2017, and in accordance with the Court’s Dec. 4, 2020, order;
- Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to Sept. 5, 2017, and in accordance with the Court’s Dec.4, 2020, order;
- Accepting applications for advance parole documents based on the terms of the DACA policy prior to Sept. 5, 2017, and in accordance with the Court’s Dec. 4, 2020, order;
- Extending one-year grants of deferred action under DACA to two years; and
- Extending one-year employment authorization documents under DACA to two years.
On January 20, 2021, President Biden issued a memorandum titled Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), published in the Federal Register at 86 FR 7053 (January 25, 2021). The memorandum directed the Secretary of Homeland Security, in consultation with the Attorney General, to "take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA."
On July 16, 2021, the U.S. District Court for the Southern District of Texas Brownsville Division ruled that the DACA program was unlawful, and vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., "those not already granted by the date of this order"). The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., "those not already granted by the date of this order"). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection. The case is State of Texas et al v. United States of America, U.S. District Court for the Southern District of Texas, No. 1:18-cv-00068. Read the July 16, 2021 court order.
DHS published a proposed DACA rule in the Federal Register on September 28, 2021, with a 60-day comment period that closes on November 29, 2021. See 86 FR 53736 (September 28, 2021).
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
DHS's July 28, 2020 memorandum directed DHS to "Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances." USCIS's August 21, 2020 policy guidance then clarifies that advance parole for DACA recipients would be considered only on a discretionary, totality of the circumstances basis, under the standards of INA 212(d)(5), "which mandates a case-by-case assessment and a termination that parole of the alien is for urgent humanitarian reasons or significant public benefit." The August 21, 2020 policy guidance gave the following examples of circumstances that may warrant approval of advance parole for DACA recipients:
- "Travel to support the national security interests of the United States including U.S. military interests;
- Travel in furtherance of U.S. federal law enforcement interests;
- Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States;
- Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien."
The memo then stated that under this standard "in most instances, traveling abroad for educational purposes, employment related purposes, or to visit family members living abroad will not warrant advance parole," and that "travel for vacation is not a valid basis for advance parole" for DACA recipients.
The December 4, 2020 decision by the U.S. District Court for the Eastern District of New York ordered DHS to fully reinstitute DACA, including adjudications of applications for advance parole based on the terms of the DACA policy prior to September 5, 2017. Now, after the July 16, 2021 injunction by the U.S. District Court in Texas, DACA benefits are once again tenuous.
DACA advance parole adjudication reentry to the United States can never be guaranteed, even with advance parole authorization and the approval of a university or education abroad office. NAFSA strongly encourages advisers to recommend that DACA students seek the advice of an immigration attorney to weigh this risk before departing the United States on 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 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!