DHS Begins Limited Implementation of DACA under Final Rule

Release Date

11/03/2022

WASHINGTON— On Monday, October 31, 2022, the Department of Homeland Security’s final rule (PDF) to preserve and fortify Deferred Action for Childhood Arrivals (DACA) went into effect. The final rule’s implementation means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. Previously, DACA was based on a policy memorandum that then-DHS Secretary Janet Napolitano issued on August 15, 2012. Since its inception in 2012, DACA has allowed over 800,000 young people to remain with their families in the only country many of them have ever known and continue to contribute to their communities in the United States.

Under the final rule, USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept but cannot process initial DACA requests.

“This final rule is our effort to preserve and fortify DACA to the fullest extent possible,” said Secretary of Homeland Security Alejandro N. Mayorkas.  “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

“Implementation of the DACA final rule illustrates USCIS’s continued commitment to Dreamers,” said U.S. Citizenship and Immigration Services Director Ur M. Jaddou. “While court orders prevent us from adjudicating requests from initial applicants, we will continue to carry on the important work of renewing and continuing protections for current DACA recipients, as outlined in this final rule.”

The final rule is a product of careful review that considered the more than 16,000 comments received during the public comment period. It codifies existing DACA policy, with limited changes, and replaces the guidance set forth in the 2012 Napolitano memorandum (PDF).

The final rule affirms that:

• Current DACA recipients’ deferred action, employment authorization, and advance parole will continue to be recognized as valid under the final rule.
• DACA is not a form of lawful status but DACA recipients are considered “lawfully present” for certain purposes.
• Non-citizens who meet eligibility criteria, clear all national security and public safety vetting, and are found to merit a favorable exercise of discretion may be granted deferred action and obtain renewable two-year work authorization. Given pending litigation, however, the Department is currently barred from granting deferred action to any new DACA recipients.

On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. On Oct. 14, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule.

Current grants of DACA and related Employment Authorization Documents are valid, and USCIS will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule

Please call the office with any questions.

What Are The Requirements For DACA?

• You were under 31 years old as of June 15, 2012;
• You first came to the United States before your 16th birthday;
• You have lived continuously in the United States from June 15, 2007 until the present;
• You were physically present in the United States on June 15, 2012 and at the time you apply;
• You came to the United States without documents before June 15, 2012, or your lawful status expired as of June 15, 2012;
• You are currently studying, or you graduated from high school or earned a certificate of completion of high school or GED, or have been honorably discharged from the Coast Guard or military (technical and trade school completion also qualifies); and
• You have NOT been convicted of a felony, certain significant misdemeanors (including a single DUI), or three or more misdemeanors of any kind. Consult with an attorney about ANY contact you have had with law enforcement or immigration authorities.

DACA RENEWAL

WHO CAN APPLY FOR DACA RENEWAL?

Only persons who already have an approved DACA case are eligible for renewal.

You are still eligible for DACA renewal even if:

• You are now over 31. You cannot age out of the program.
• You have graduated or are studying at a different school or program.

WHEN TO APPLY FOR DACA RENEWAL?

Apply at least 150 days before your DACA and work permit expire. However, USCIS is now accepting applications more than 150 days prior to the expiration date, so you can apply as early in advance as you want to. If you apply for renewal in this time range, you should receive an approval notice and new work permit before your current one expires.

It is important to apply for renewal on time to avoid losing protection from deportation, being without valid work authorization, and accruing unlawful presence once your Deferred Action relief expires.

WHAT’S THE PROCESS?

1. Get Help: CONTACT GILLSILLE LAW, LLC
2. Calculate When to Apply for Renewal: Submit your application at least 150 days (5 months) before your DACA and work permit expire. We do not recommend filing it any later than four months in advance.
3. Complete Applications:
   • Form I-821D – Consideration of Deferred Action for Childhood Arrivals (DACA). Indicate this is a renewal application and only complete sections required for renewal applicants. Provide updated information in those sections.
   • Form I-765 – Application for Employment Authorization (EAD). Indicate the application is for a renewal EAD (work permit). List your current status as “DACA recipient,” and for question 16 the eligibility category is (C)(33).
   • Form I-765WS – Worksheet. Briefly explain your economic need to work.
4. Submit Applications: Include two passport photos, copy of current work permit and fee. The fee is $495.00. Pay using a check or money order payable to the Department of Homeland Security. Mailing address for California residents:
   USCIS Phoenix Lockbox, P.O. Box 20700, Phoenix, Arizona 85036-0700
5. Schedule Appointment: You will receive a receipt by mail and a biometrics (fingerprinting) appointment notice.
6. Final Steps: After being fingerprinted, you will receive either a letter asking for additional information (called a Request for Evidence) or a final decision.

WHAT DO I INCLUDE IN THE RENEWAL APPLICATION?

Information:
Your renewal application is an update to your initial application. Update your address, any travel you did under advance parole, any arrests or criminal issues that took place since your initial application, and any contact with immigration authorities or the immigration court since your first application.

Make sure that the information in your renewal application is consistent with your initial DACA application. If you need a copy of your initial application, you can request one by filing Form G-639 with USCIS. If your address has changed, include the new address on the application and complete a change of address with USCIS, which you must complete any time your address changes.

The exception is if there has been a change since your initial application regarding your Immigration Record (your case is pending in immigration court, you were detained by immigration authorities, etc.), or your Criminal Record (you were arrested, detained, and/or convicted of a crime). If either of these apply to you, consult an attorney, make sure your application reflects this new information, and submit evidence that this change in your situation does not impact your DACA eligibility (for example, the court disposition regarding a criminal case or an immigration judge’s order closing your case).

WHERE CAN I GET MORE INFORMATION?

• Information about the Renewal Process and Forms
• USCIS Frequently Asked Questions about DACA

Additional DACA Resources

• Step-by-Step Guide for DREAMers Applying for DACA
• Deferred Action FAQs
• Suggested Documentation Evidence
• Advice on Getting Legal Help
• Comparison of Benefits and Rights Based on Immigration Status
• DACA Educator Toolkit
• DACA Mini Grants (for college graduates who’ve already been approved)