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December 4, 2020 New York Federal Court Order restores DACA to its pre-September 5, 2017 version

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Updated: December 7th, 2020

On November 14, 2020, a federal district court in New York ruled that DHS unlawfully issued its July 28, 2020 memorandum. The July 2020 memorandum had limited the Deferred Action for Childhood Arrivals (“DACA”) program by directing USCIS to (1) reject all initial requests, (2) reject DACA advance parole requests unless there are “exceptional circumstances” and (3) limit DACA renewals to 1 year rather than 2 years. The Federal Court in New York held that the July 28, 2020 DHS memorandum was invalid because Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security, so he had no authority to issue it. On December 4, 2020, the court formally vacated the memo and specifically ordered DHS to announce on its websites that it will accept initial DACA requests, renewal requests, and advance parole requests and that DACA and work permits granted for only 1 year are automatically extended to two years.

Background: The U.S. Supreme Court decision on June 18, 2020 that the Trump Administration’s termination of DACA was unlawful, and 4th Circuit’s mandate on June 30, 2020, should have resulted in USCIS fully restoring DACA, including that USCIS again process initial DACA requests and advance parole applications. However, DHS rebuked the courts and unlawfully tried to limit DACA with its July 2020  memo and subsequent USCIS memorandum released on August 21, 2020 explaining in more detail how the July 2020 memo would be implemented. The federal court order issued in New York on November 14, 2020 concluded that the July 2020 Memo was unlawfully issued, and the December 4, 2020 order made explicitly clear that DACA must be fully reinstated.

Still, DACA continues to be threatened as there is ongoing litigation surrounding the program. While the government has been ordered to fully restore DACA, there may be a limited window of opportunity to apply.  

The answers to the following Frequently Asked Questions are based on the information we have now (including current court orders) and will be updated as we learn more, and as circumstances evolve. This is all general guidance and is not intended to be legal advice. We recommend that you speak to an immigration attorney for more information.

1) I have a current grant of DACA, how does the new court order affect me?

Two-year work permit – If you were granted DACA for two years under the policy that was in place prior to the July 28, 2020 memo, the New York court order will not affect your current DACA and work permit. 

One-year work permit – If you were granted DACA for one year under the unlawful July 2020 memo, the court order automatically extended your DACA and work permit  to two years.

See Question 7 below for guidance regarding Advance Parole.

2) I submitted a DACA renewal request but I have not received a decision on my case yet. How does this new court order affect me?

If your DACA renewal request is approved, your new DACA grant and work permit will be valid for a 2 year period (rather than 1 year as announced in the unlawful July 2020 memo).

3) I want to renew my DACA, can I apply for renewal?

Yes, USCIS is still accepting and processing DACA requests for renewal. Under the new court order, if your case is approved, your new DACA and work permit will be valid for a 2-year period. We recommend you speak to an attorney before applying to receive an individualized assessment.

If at the time you apply for renewal your DACA is current, meaning it has not expired, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been expired for one year or less, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been terminated or has been expired for more than one year, you may request to renew your DACA, but you must fill out the application as if you were applying for the first time. And you must submit evidence showing that you meet each DACA eligibility guideline.

4) Should I apply early for DACA renewal?

USCIS has recommended in the past that you submit your DACA renewal application between 150 to 120 days before the date your current DACA and EAD expire.

The August 20, 2020 guidance says USCIS will generally reject requests received more than 150 days before the current grant of DACA expires.  DACA recipients should generally file their renewal request between 150 and 120 days before their current grant of DACA expires.

If at the time you apply for renewal your DACA is current, meaning it has not expired, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been expired for one year or less, then you can request to renew your DACA by filling out the application as a renewal application.

If at the time you apply for renewal your DACA has been terminated or has been expired for more than one year, you may request to renew your DACA, but you must fill out the application as if you were applying for the first time. And you must submit evidence showing that you meet each DACA eligibility guideline.

5) I'm DACA-eligible but I have never had DACA, can I apply now?

USCIS is currently accepting  DACA requests from individuals who have never received DACA before.   We recommend speaking with an attorney for assistance. There may be a limited window of opportunity to apply.

6) I’ve never had DACA but I submitted a request for DACA after the Supreme Court decision and it got rejected, can I resubmit my request?

USCIS is currently accepting DACA requests from individuals who have never had DACA. We recommend speaking with an attorney to see if you can re-submit your initial DACA request (even if you already consulted with one for the first application).

7) Can I apply for advance parole if I have DACA?

USCIS is currently accepting advance parole requests from DACA recipients. We strongly recommend you speak to an attorney before applying and before traveling outside the U.S. even if your advance parole is granted. 

Advance parole may be granted to DACA recipients for humanitarian, educational, and employment reasons.

If your advance parole application is denied, the associated fee will not be returned.

8) Has the application fee for DACA changed?

No. The associated fees remain the same ($495) and it will again allow you to receive DACA and work authorization for 2 years if your DACA renewal request is granted.

9) What will USCIS do with the information I submitted in my request, even if it was rejected?

The court’s order does not affect USCIS’s information-sharing policy.  It remains the same as reflected in the USCIS DACA Frequently Asked Questions and in the USCIS’s Form I-821D instructions. However, we understand that ICE can access USCIS’s data, as described in the ProPublica article titled “ICE Has Access to DACA Recipients’ Personal Information Despite Promises Suggesting Otherwise, Internal Emails Show.” We recommend you speak to an attorney before applying to receive an individualized assessment.

10) What do I need to do to change my 1-year work permit to a 2-year work permit?

One year EADs were automatically extended to two years by the court order.  Additionally, the order requires that DHS update its website by December 7, 2020 to make that clear.  The court wants more information about what sort of evidence the government will provide you so that you can prove the extension.   We should know about this soon.

11) I have heard that there is a class action lawsuit. What is it and how do I find out more?

On November 14, 2020, a federal judge in New York certified a nationwide class in the lawsuit Batalla Vidal v. Wolf. The court certified a  DACA class consisting of individuals who are or will be eligible for DACA under the terms of the 2012 DACA Memo and a Pending Applications subclass consisting of individuals who had applications pending at USCIS between June 30, 2020 and July 28,2020, whose applications were processed according to the July 2020 Memo. Individuals who are part of the class or subclass may sign up to receive updates regarding the case at dacaclassaction.org. 

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