Is DACA really (and finally) back?
In 2012, then President Obama initiated a program through Executive Order called the Deferred Action for Childhood Arrivals, DACA for short. The program does not give recipients a green card or citizenship, but merely states that immigration authorities will not seek to remove them while they maintain their status and provides recipients with authorization to accept employment. The program restricts eligibility to people under the age of 31 (as of June 15, 2012) who entered the United States prior to their 16th birthday, attend school, and have no major criminal convictions. Recipients are sometimes referred to as “Dreamers.”
In 2017, President Trump terminated the program through his Secretary of the Department of Homeland Security (DHS). Immediately thereafter, immigration advocacy groups challenged the recission in court. The courts generally agreed with the challenges, finding that DHS had not complied with proper procedures in terminating the program. In June 2020, the Supreme Court agreed with the lower courts that DHS failed to follow proper procedure.
Despite the Supreme Court decision rescinding the DHS memo cancelling DACA in June, however, DHS has not been accepting new applications for DACA. In July, DHS reinstated the DACA program for current recipients, but did not accept applications for anyone who did not already participate in the program. The July memorandum also limited renewals to one year instead of the previous two year increments.
Again, immigration agencies challenged the July DHS memorandum. On December 4, 2020, a judge in New York ordered DHS to accept new applications as well as renewals. Earlier this week, the DHS and USCIS websites finally included information and a process for new DACA filings. Filings use the Form I-821D and must be accompanied with a filing fee of $495. More information about filing for DACA can be found at https://www.uscis.gov/i-821d.
Although the DACA program is currently back, the DHS announcement of the program recommencing included language indicating that the administration intends to continue challenging it. It seems unlikely that the Biden administration would pursue any continued challenge to the program as the incoming President has indicated his support for the program. As we have already seen with DACA, however, the program has included a lot of uncertainty so if you think you may be eligible, you should consult an immigration professional before any additional changes take place.