NOTE: The below information is current as of November, 2022. However, the situation regarding DACA is frequently changing, so make
sure you have updated information before taking any actions.
Deferred Action for Childhood Arrivals, or DACA, is an executive action put into place in 2012. It allows certain people who entered the United States as children to be safe from removal for a period of time. It does not grant them a lawful status, but does allow them to stay in the United States and get work authorization.
Deferred action is a type of “prosecutorial discretion.” The government does not have enough resources to prosecute everyone who is in the United States without lawful status, so they focus on certain people who are more likely to pose a danger to the country. Other people, who are deemed lower risk or more beneficial to society, are allowed to stay. However, it is only a temporary deferral of removal, rather than an actual grant of lawful status.
On July 16, 2021, the U.S. District Court for the Southern District of Texas held that the DACA policy “is illegal.”1 The Court vacated the June 15, 2012 DACA memorandum issued by former Secretary of Homeland Security Janet Napolitano and remanded the memorandum to DHS for further consideration. The Court also issued an injunction prohibiting the government’s continued administration of DACA. However, the Court did temporarily stay its order as it related to people who received DACA on or before July 16, 2021. Therefore, USCIS is currently accepting both initial filings and renewal requests of DACA, along with the accompanying work permit applications, but they are only able to grant renewal DACA requests, along with accompanying work permit applications.
On August 30, 2022, the Department of Homeland Security issued a new final rule to preserve and strengthen the DACA program.2 It is scheduled to go into effect on October 31, 2022.
On October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit partially affirmed the District Court’s decision declaring the 2012 DACA policy unlawful.3 However, the decision preserved the partial stay that allowed renewal DACA applications to continue. It then remanded the case back to the district court for further proceedings regarding the new regulations issued on August 30, 2022, described above.
Bottom line at this time:
- Those who have not previously been granted DACA can file an initial petition for DACA, but USCIS will not act on those petitions at this time.
1 See DACA Decision in State of Texas, et al., v. United States of America, et al, 1:18-CV-00068, (S.D. Texas July 16, 2021).
2 See https://www.federalregister.gov/documents/2022/08/30/2022-18401/deferred-action-for-childhood-arrivals.
3 See https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf.