New DACA regulations were announced last week that become effective October 31, 2021. However, a court injunction remains in effect, prohibiting USCIS from granting initial DACA requests. We are also waiting for a decision by the U.S. Court of Appeals of the Fifth Circuit regarding the future of the DACA program. These factors may delay the start of the new DACA rules.
Note: DACA recipients are not affected by the injunction and may still renew their work permits.
What do the new DACA rules do?
If the new DACA rules take effect, they will allow eligible applicants to receive initial DACA benefits under federal regulations. The requirements are nearly identical to the DACA program created in 2012. For initial DACA benefits, an applicant must still show they have continuously resided in the U.S. since June 15, 2007, and meet the same age, educational, and security requirements as the old criteria. Unfortunately, the new DACA does not change those eligibility requirements.
Advance parole will continue to be authorized under the new regulations. The eligibility requirements remain unchanged from the old DACA guidance.
What will happen to DACA?
The Fifth Circuit court is currently reviewing the legality of the DACA program. Soon after the new DACA rules were announced, the court requested additional briefing to determine how they would affect their ruling. A decision can be made anytime now.
If the court rules that DACA is illegal, the parties may appeal the case to the U.S. Supreme Court. If the court returns the case to the lower court, it remains to be seen how the new regulations would be affected. Stay tuned.
What will happen to my initial DACA application that was filed last year?
If the new regulations take effect, USCIS should process the initial applications that were suspended by the court injunction. USCIS has not provided any additional guidance yet on how it intends to handle these cases.
Should I file my initial DACA now?
Though USCIS may accept initial applications, it cannot approve them. Uncertainty about the future of the DACA program remains high. Consult with an immigration lawyer about whether you should file your initial application based on your situation.
DACA is not a permanent solution.
While we believe the new DACA rules represent a positive step toward protecting Dreamers, the best solution is a permanent one. This means Congress must enact laws to ensure that Dreamers are protected from deportation and create a path forward to lawful permanent residency and, eventually, U.S. citizenship.