Feb. 15, 2018

Filing DACA Renewal Applications in the Wake of the January 9, 2018 and February 13, 2018 Federal Court Rulings

On September 5, 2017, the administration of President Donald Trump announced the end to the Deferred Action for Childhood Arrivals program – more commonly known as “DACA.”  The Acting Secretary of the Department of Homeland Security (DHS), Elaine Duke, issued a memorandum officially rescinding the program that had been in place since June 2012. 

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program.  Similarly, on February 13, 2018, a Federal District Court in New York issued a nationwide preliminary injunction ordering the government to maintain the DACA program on the same terms and conditions that existed prior to the 9/5/17 DACA rescission memo, subject to the same limitations as the 1/9/18 injunction issued in DHS v. Regents of the University of California.


Background/Qualifications for DACA

To qualify for DACA, applicants must: 

  • Have been between the ages of 15 and 31 on the program’s start date – June 15, 2012; 
  • Have been under the age of 16 when they were first brought to the United States;
  • Have lived in the United States continuously since June 15, 2007 – five years before the start of the program;
  • Reside in the United States at the time of application;
  • Be either a high school student or graduate, and/or have been honorably discharged from the military;
  • Have never been convicted of a felony, of a significant misdemeanor, or of three or more misdemeanors, no matter how minor;
  • Not pose a threat to national security or public safety; and
  • Not have had lawful status when the program began on June 15, 2012

Applying for DACA Renewals In Light of Recent Court Orders

On January 13, 2018, in response to the district court order in the California case, USCISupdated its website to include guidance on submitting DACA renewal applications in light of the January 9, 2018 district court decision. The guidance includes the following information:

  • Individuals Who Have Never Had DACA: USCIS will not accept DACA requests from individuals who have not previously been granted DACA. The court decision states that applications from people who have never applied for DACA “need not be processed.”
  • Individuals Who Currently Have DACA: Individuals who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765, and Form I­765 Worksheet, with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the form instructions.
  • Individuals Whose DACA Expired On or After September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired within the past year were eligible to apply for renewal. USCIS’s guidance states that recipients whose previous DACA expired on or after Sept. 5, 2016, may still file a renewal request. USCIS asks applicants to list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
  • Individuals Whose DACA Expired Before September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired more than a year prior to reapplying had to submit initial DACA request applications. USCIS’s guidance states that recipients whose previous DACA expired before September 5, 2016 cannot request DACA as a renewal, but may file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. These applicants are instructed to list the date their prior DACA expired on Part 1 of the Form I-821D, if available.
  • Individuals Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. These applicants are instructed to list the date their prior DACA was terminated on Part 1 of the Form I-821D, if available.
  • Advance Parole: USCIS will not accept or approve advance parole requests from DACA recipients. The court decision had stated that applications for advance parole based on DACA do not have to be processed for the time being.


When Should Individuals Submit Their DACA Renewal Applications?

Because the defendants have already appealed the district court’s decision to both the Ninth Circuit and the Supreme Court, and given the processing times for DACA applications, eligible individuals should consider submitting renewal applications as soon as possible.

USCIS has encouraged applicants to apply 150 to 120 days in advance of the expiration of their prior DACA grants. USCIS has indicated that it would accept DACA renewal requests in accordance with the DACA policies in place before DACA was rescinded on September 5, 2017.

Under the instructions for Form I-821D and the DACA FAQs on USCIS’s website, DACA applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. The form instructions stated that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs noted that requests received more than 150 days in advance of expiration would be accepted, but could result in overlap between the applicants’ current DACA and their renewal DACA. See Questions 49 and 50 of the DACA FAQs.

Individuals may want to consider several factors when deciding whether to submit a DACA renewal application more than 150 days in advance, including how early they would be applying to renew, the availability of renewal fees, and whether anything has changed since the last time they applied for DACA. It may be good to consider the possible outcomes of filing an early DACA renewal application under the court decision, as well, including (but not limited to): that the renewal could be rejected and take several weeks to be returned; that the application could be accepted but not prioritized for adjudication; that there could be an adverse court decision after the application is submitted but before it is approved and the filing fee is lost; that there could be a court decision that grandfathers cases already filed under the district court decision; or that the case could be accepted and approved before the court makes a decision.


Alternative Forms of Relief for Former DACA Recipients, and Ways That Colleges and Universities Can Protect “Dreamers”

As DACA’s expiration date approaches, it becomes paramount to remember that there may be other potential forms of relief available to undocumented immigrants. For example, some DACA recipients or other undocumented individuals may be eligible for lawful permanent residence through a qualifying U.S. citizen or Lawful Permanent Resident family member or possibly through employer sponsorship. Additionally, there may be options for lawful status or permanent residence for individuals who have been subjected to battery or extreme cruelty by a U.S. citizen or permanent resident family member – through the Violence Against Women Act – or for neglected or abused children – via Special Immigrant Juvenile Status.  Depending on conditions in the individual’s home country, he or she may have a basis to apply for asylum in the United States.

There are, of course, limitations on the ability to protect the undocumented from the immigration consequences of their lack of status. Absent an available legal remedy, if a student is detained by immigration authorities, a school has few options to shield the student from such detention. Similarly, if ICE presents a warrant for a student’s information, including their immigration status, an institution is legally obligated to comply with the request.

Short of filing for another form of immigration status or benefit for an undocumented individual, there are numerous additional ways in which schools, colleges and universities can protect or assist DACA students.  Many of the available methods of assistance fall under the umbrella of “sanctuary” policies.  “Sanctuary” in this context does not, as many may believe, refer to the harboring of undocumented immigrants and physically hiding them from immigration authorities. Rather, it consists of a host of policies that a college, municipality, or other entity may adopt to protect members who are undocumented. 

While such entities cannot actively interfere with government agencies in the carrying out of their duties and the enforcement of federal immigration laws, they can, for example, implement policies to withhold the immigration status of a particular individual unless required by a warrant to turn over such information.  Similarly, college and university campuses may bar immigration officers from entering campus without a warrant – though there may be limitations on this ability in the context of public universities.

Colleges and universities may also choose to support their undocumented populations by providing free or subsidized legal consultations or services to their students on immigration matters, or by extending resident tuition rates to undocumented applicants/students.  While state government cannot act to legalize the status of any undocumented immigrants, as immigration falls solely within the jurisdiction of the federal government, states can deal with other issues of importance to undocumented individuals, such as tuition policies for state universities. Such financial assistance will likely become increasingly important for former DACA recipients who are ineligible for any federally funded student financial aid, including loans, grants, scholarships, or work-study, and who, if DACA is ultimately phased out, will lose their lawful ability to work and earn an income in the U.S.

In light of the current political climate, and threat of the DACA program ending permanently, it is highly encouraged that if you are a DACA recipient up for renewal, you submit your renewal application as soon as possible. If you have questions regarding the DACA program, your eligibility, or how to otherwise protect your status, contact one of Whiteman Osterman & Hanna’s expert immigration attorneys today.



Immigration Practice Group                           Leonard J. D’Arrigo                Seth R. Leech

Whiteman Osterman & Hanna LLP                (518) 487-7642                       (518) 487-7760

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Tel: (518) 487-7600                                        Brendan J. Venter                   Leslie K.L. Thiele

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