Guide

Guidance for DACA Recipients and Legal Practitioners – Frequently Asked Questions

[UPDATE ON 10/21/2022] – On October 5, 2022, the Fifth Circuit Court of Appeals issued an opinion affirming the district court’s ruling in July 2021 that DACA under the 2012 policy memorandum is unlawful. However, the Fifth Circuit remanded the case back to the district court to consider the new 2022 DACA regulations that are set to go into effect on October 31, 2022. On October 14, 2022, the district court judge extended his injunction to block the DHS from implementing its new DACA rule on October 31st.

The Fifth Circuit did not make any immediate changes to the DACA program. For now, those who currently have DACA, or those whose DACA has expired within one year, can continue to renew and advance parole remains available. Initial DACA requests (and late renewal requests from those whose DACA expired over a year ago) can be filed, but will not be granted at this time. The litigation is ongoing and we encourage you to periodically visit our website and follow us on social media to learn of any new developments. To receive the latest updates and developments on DACA ,sign up here.

I currently have DACA. How does the latest court ruling affect me?

If you currently have DACA, your DACA and work permit are still valid. You can still use your social security number and work permit; everything stays the same with your current DACA status. Don’t let your DACA and work permit expire. Consider renewing, ideally with the assistance from an accredited organization or an immigration attorney now! 

Questions on first-time (initial) DACA requests.

In 2021, Judge Hanen ruled that USCIS can no longer grant DACA to new DACA requestors. I have never had DACA before and filed a request before the Hanen decision. I completed my biometrics; what will happen next?

The Fifth Circuit opinion and Judge Hanen’s order prohibits USCIS from granting any first-time initial DACA requests at this time.  If you filed your first-time initial DACA request with USCIS but it was NOT granted, USCIS continues to hold your request and your payment but will not approve or deny your request until further notice. 

Are first-time DACA requests automatically rejected now?

No. USCIS can still accept first-time initial DACA requests (meaning USCIS will not reject and return your request) but cannot grant requests at this time due to Judge Hanen’s order and the Fifth Circuit opinion. 

I was planning on sending my first-time request out soon. Should I still?

The Fifth Circuit opinion and Judge Hanen’s order prohibit USCIS from granting any first-time initial DACA requests at this time, even though initial requests can be accepted for filing. We recommend that you consult with an immigration attorney or accredited representative before filing your request. As litigation proceeds through the courts, we will keep you updated here. 

Does the new DACA rule change anything?

Not currently. The rule had been enjoined by Judge Hanen on October 14th and will not go into effect on October 31, 2022. However, renewals and advance parole continue for current recipients of DACA. 

Am I at risk of deportation now?

President Biden and DHS have made it clear that Dreamers are not a priority for deportation. Even Judge Hanen’s order states (and the Fifth Circuit agreed) that his decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”

Notwithstanding the above, if  you have any problems with Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), please call 1-844-363-1423, UWD’s MigraWatch Hotline, as well as your Senator or Representative, who may be able to liaise with ICE on your behalf.

Questions on DACA Renewals

Are renewal DACA requests being processed? 

Yes. If your DACA has not expired or expired within one year, USCIS will continue accepting and processing DACA renewal requests until there is a court order saying otherwise. Don’t let your DACA and work permit expire. Consider renewing, ideally with the assistance from an accredited organization or an immigration attorney.  If your DACA expires soon, renew now!

Should I renew early?

We recommend that you consult with an immigrartion attorney or accredited representative to determine the best timing for your DACA renewal request.  Due to the ongoing litigation, there may be a limited window of opportunity to apply for renewal. USCIS encourages renewals to be filed between 120 and 150 days prior to the expiration of your DACA. However, USCIS will accept forms earlier than 150 day before expiration. USCIS may hold early-filed requests and not process them until they are within 150 days of the current DACA period expiration. Or, USCIS may process early-filed requests quickly, which could result in cutting short the current DACA grant and having the new DACA grant expire sooner than it would have if the renewal had been processed later. 

Can I submit an expedite request for my DACA? 

While USCIS does not currently process formal expedite requests from DACA requestors, it is our understanding that USCIS may still consider circumstances– such as those described on USCIS’ expedite request webpage— that warrant more expeditious processing. We therefore encourage you to include any information that may be helpful to USCIS in processing your renewal on a cover letter that you include with your DACA renewal filing. 

Can I file online?

Yes, DACA renewals can be filed online. Current DACA recipients must first create a USCIS online account in order to file Forms I-821D (DACA), I-765 (application for work authorization) and I-765WS online. The online account provides a potentially quick method of submitting forms, paying fees, and tracking the status of USCIS applications. This is only applicable to DACA renewal requests. It is always recommended to receive assistance from an accredited organization or an immigration attorney when filing any immigration documents and they may be able to help troubleshoot issues when applying online. 

How long will USCIS be accepting DACA renewal filings?

USCIS will continue accepting and processing DACA renewal requests until there is a court order mandating otherwise. The Fifth Circuit agreed with Judge Hanen’s decision that DACA under the 2012 memorandum is unlawful. However, the Fifth Circuit has directed Judge Hanen’s court to quickly determine the legality of DACA under the new rule, which was set to go into effect on October 31, 2022.  At an October 14th hearing, Judge Hanen blocked DHS’s new DACA rule from being implemented on October 31st. Renewals can continue to be processed and granted by USCIS. 

We do not know when Judge Hanen will issue his next ruling. I would like to renew my deferred action and work authorization under DACA, but my DACA lapsed for a year or more. What does this mean for me? 

If you submit a DACA request a year or more after your last DACA grant expired or after your most recent DACA grant was terminated, your request is currently considered by USCIS as an initial request and will not be granted at this time. USCIS will accept these requests for filing, accept the payment and issue receipt notices, but will not process or approve these filings at this time due to the Fifth Circuit and Judge Hanen’s order. See the guidance provided by USCIS.

Does the new DACA rule change anything?

Not currently. The new DHS DACA rule was set to go into effect on October 31, 2022, but Judge Hanen’s October 14th order temporarily blocked its implementation on October 31st. 

Questions on Advance Parole

Is advance parole open for DACA recipients right now?

Yes. According to the latest guidance from USCIS, the agency will continue to process and grant advance parole for current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before applying for advance parole and before traveling outside the U.S. Due to the ongoing litigation, there may be a limited window of opportunity to apply for advance parole.

I was approved for advance parole, how will the Fifth Circuit’s decision and Judge Hanen’s decision affect me?

We recommend that you consult with an immigration attorney or accredited representative before  traveling outside the U.S.  Both the Fifth Circuit’s ruling and Judge Hanen’s decision permit Customs and Border Protection (CBP) to honor advance parole granted to DACA recipients by USCIS, but the individual will still be subject to an immigration inspection at the port of entry. It is unclear how travel on advance parole will be impacted by future court orders.

My advance parole request is still pending. Will USCIS process it?

According to the latest guidance from USCIS, the agency will continue to process and grant advance parole to current DACA recipients. We recommend that you consult with an immigration attorney or accredited representative before traveling outside the U.S. Both the Fifth Circuit’s ruling and Judge Hanen’s decision permit Customs and Border Protection (CBP) to honor advance parole granted to DACA recipients by USCIS, but the individual will still be subject to an immigration inspection at the port of entry. It is unclear how travel on advance parole will be impacted by future court orders.

I have DACA and am currently outside the United States with advance parole. Can I still return to the U.S. using my advance parole under DACA? 

Both the Fifth Circuit’s ruling and Judge Hanen’s decision permit Customs and Border Protection (CBP) to honor advance parole granted to DACA recipients by USCIS, but the individual will still be subject to an immigration inspection at the port of entry. It is unclear how travel on advance parole will be impacted by future court orders.

Next Steps

Can Judge Hanen’s decision be appealed?

The Fifth Circuit Court of Appeals issued its decision on October 5, 2022 and, based on the Fifth Circuit’s order, a hearing before Judge Hanen took place onOctober 14, 2022. On October 14th, Judge Hanen issued an order that allowed renewals to continue to be processed and granted by USCIS, while still blocking first-time initial requests from being granted. We don’t yet know how long it will take to have a new decision or order. After Judge Hanen issues a new decision, any party could appeal further to the Fifth Circuit and to the Supreme Court of the United States. 

I heard that the processing of DACA requests is taking a long time. What is the current status?

Anecdotally we’ve heard that most DACA renewal requests have been processed within the goal of 90 days and in some cases much faster. In March 2022, USCIS announced changes to processing times and established new internal cycle time goals. New cycle time goals include 6 months for I-821D DACA renewals. It’s hard to determine what this means for DACA renewal processing since many cases are processed much faster. You can look up processing times per service center here and your case status here

Am I at risk of deportation if my DACA request cannot be granted?

President Biden and DHS have made it clear that “Dreamers” are not a priority for deportation. Even Judge Hanen said in his July 2021 order (and the Fifth Circuit agreed) that his decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”

If you currently have DACA, the best protection against deportation is to ensure that you don’t lose this protection. If your DACA expires soon, renew now! 

What can we do now?

It’s important that Congress pass legislation that provides permanent solutions for undocumented youth with or without DACA, TPS holders, farmworkers, essential workers and our family members, and President Biden agrees. If you’re a DACA recipient, know that you are lawfully present in the U.S. and have rights. Check in on your DACA friends today.

Take Action

We’ve known since the beginning that DACA is not enough. Now more than ever, we need President Biden to be bold in protecting DACA recipients and DACA eligible youth by defending our victory in court and pushing Congress to take action to pass permanent protections, like citizenship, for all undocumented people. 

Democrats must take action now! The writing is on the wall, unless Biden and Congress take action this year, DACA will end on their watch. They must ACT NOW to permanently protect all immigrant youth, our families, and our communities. Text “HOME IS HERE” to 877-877 to demand action NOW! 

We won’t go back, we won’t back down. We are here to stay! Text DACAINFO to 877-877 to demand action RIGHT NOW and get the latest updates!

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