As many of you already know, the U.S. Supreme Court announced a decision which keeps the DACA program intact for now. It was a welcomed surprise for many of us who expected the program to end there. And while the case makes its way back to the lower courts, it is important to understand what the decision means to DACA applicants.
What is DACA?
In 2012, the Obama Administration created a program known as Deferred Action for Childhood Arrivals (DACA), which granted certain individuals who arrived in the United States as children the opportunity to remain in the country and work for a renewable period of two years. Generally, applicants must demonstrate enrollment in school, continuous residence in the U.S., and absence of a significant criminal record. An estimated 700,000 individuals are enrolled in DACA.
On September 5, 2017, the Trump Administration announced the termination of the DACA program, resulting in numerous lawsuits challenging the administrations’ efforts. For the time being, only individuals who had previously applied for DACA could renew (or reinstate) their DACA benefits; individuals who had never applied for DACA prior to its termination were barred from seeking DACA benefits.
Litigation eventually made its way up to the Supreme Court.
What did the Supreme Court decide?
The Supreme Court ruled that the termination of DACA violated federal law because the administration failed to adequately explain why it was lawful to end the program. Additionally, the administration did not consider important policy factors before ending DACA, such as the societal and economical contributions made by DACA beneficiaries.
The Court did not decide whether DACA was a lawful program or not. It agreed that the government could terminate DACA benefits. But an agency must follow its own procedures, meaning it must provide the public with sufficient reasons for having ended an administrative program that is relied upon by many people and institutions.
Can individuals apply for DACA now for the first time?
This is a key question for many potential applicants who did not apply for DACA prior to September 5, 2017. Applicants should be able to apply for DACA for the first time. The Court said that DACA’s termination was unlawful. Therefore, the program should exist as it did prior to its termination, which includes the acceptance of first-time applications.
Recently, a federal court ordered USCIS to restore the DACA program as it existed prior to September 2017, and accept initial applications and applications for advance parole (travel document). However, we caution that USCIS has not provided any filing instructions since the Supreme Court decision. Applications filed without USCIS guidance might still be held or even rejected. We anticipate that USCIS will provide additional information about DACA soon. In the meantime, qualified applicants may prepare their initial applications in anticipation of further guidance.
Can DACA beneficiaries apply for “advance parole” now?
Applicants should be able to file applications for advance parole, which is a travel document. Prior to September 2017, the DACA program allowed applicants to request this document to travel internationally under certain circumstances, such as a family emergency or business necessity.
As mentioned above, a recent federal order would allow applicants to file for advance parole now, assuming they meet the requirements. However, without further USCIS guidance, the application might be held or rejected. We anticipate that USCIS will provide additional information soon.
What is next?
The case has been sent to the lower courts for additional consideration. During this time, the Trump Administration may pursue ending the DACA program by complying with legal standards mentioned in the Court’s opinion.
In the meantime, the following applicants may continue to obtain DACA benefits:
- Current DACA beneficiaries whose DACA status will be expiring may file for renewal
- DACA beneficiaries whose DACA status has expired one year ago or less may file for renewal
- DACA beneficiaries whose DACA status expired over one year ago, or DACA was cancelled, may file for DACA with a new, initial application
Though the Supreme Court decision is a victory for DREAMERS, the fight is not over until there is a permanent solution. This will need to happen through DREAMER legislation that would provide legal permanent resident status and eventual pathway to citizenship for the millions of Dreamers living in the U.S.
If you have any questions on whether you should prepare or file your application, please contact our office for a free consultation at 214-251-8011 or book a consultation online by clicking here.