Deferred Action for Childhood Arrivals (DACA) is a vital program granting rights to many undocumented immigrants in the United States. In the decade since DACA first went into effect, it has provided opportunities to many immigrants who were brought to the U.S. by their parents when they were children.
DACA has faced various legal challenges since it was first introduced. However, despite being briefly put on hold during the Trump administration, it has thus far managed to continue in mostly the same manner in which it was initially created.
Despite the continued existence of the program, it is constantly under threat. Because of this, DACA supporters continue to call for action to be taken to help protect the status of the program and give support to those who depend on it.
What Is DACA?
DACA is a policy created by President Obama during his administration that protects young undocumented immigrants who were brought to the U.S. as children by their parents. If a DACA application is approved, the applicant will then be able to legally work in the country, as well as receive protection against deportation as long as they continue to qualify for the program.
Those who are granted deferred action under this program are commonly referred to as Dreamers. Once their DACA application has been approved, they can apply for employment authorization in the form of a work permit. This work permit will allow them to lawfully work in the United States as long as it remains valid.
Unfortunately, the protections provided by DACA are not very secure. It is a discretionary and limited benefit governed by the Department of Homeland Security (DHS). Since the program offers no direct path to permanent residency or path to citizenship and can be revoked at any time, those enrolled in the program are still vulnerable, despite the partial protections they receive.
The Importance of DACA for Young Undocumented Immigrants
Deferred Action for Childhood Arrivals has provided hundreds of thousands of young undocumented immigrants. In the short time that it has been in effect. Few things are more challenging than living in a country where you don’t have lawful status and attempting to live and make money to provide for yourself and your family.
Those eligible for DACA are faced with this challenge, not because of any choices they made in their life. The DACA program recognizes the fact that these Dreamers are simply victims of circumstance. Through DACA, these immigrants can get the chance to lead far closer to a normal life than they would without the program.
Unfortunately, since Deferred Action for Childhood Arrivals does not provide a path to permanent residency or citizenship, those enrolled in the program still face significant uncertainty, especially given the near-constant threat that DACA could be repealed.
Eligibility for DACA
There are many eligibility requirements when applying for DACA. In order to qualify, you must:
- Have been under 31 years old on June 15th, 2012
- Have come to the U.S. while under 16 years of age
- Have resided in the United States continuously from June 15th, 2007, until the present (brief absences from the country for humanitarian reasons will not affect your continuous residence requirement)
- Have entered the United States without inspection or lost lawful visa status before June 15th, 2012
- Have been physically present in the U.S on June 15th, 2012
- Be physically present in the U.S. on the day you submit your DACA request with the United States Citizenship and Immigration Services (USCIS)
- Currently be enrolled in school or have graduated from high school, obtained a GED, or have been honorably discharged from the Coast Guard or U.S. armed forces
- Not have been convicted of a felony offense, significant misdemeanor, or more than three misdemeanors of any kind
- Not pose a threat to national security or public safety
- Complete and pass a biometric background check
- Complete and pass a biographic background check
Proving your eligibility can be challenging as you will need to provide a substantial amount of documented evidence supporting your claims that you meet the DACA requirements.
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History of DACA
The history of DACA may not be long, but it has certainly been tumultuous. Immigration opponents have attempted many paths to derail the program with varying degrees of success. The future of DACA remains unclear as legal actions continue to be filed to have it overturned, while supporters of the program push for its legal standing to be reinforced and expanded.
The Beginning of DACA
Deferred Action for Childhood Arrivals was first announced by the Department of Homeland Security on June 15th, 2012. It was created under President Barack Obama by DHS Secretary Janet Napolitano. Two months later, on August 15th, 2012, USCIS began accepting DACA applications.
Those granted DACA receive deferred action against the individual regarding their right to live and work in the United States. All DACA applicants are required to apply for an Employment Authorization Document (EAD) to allow them to work. Once their EAD has been granted, they can apply for a Social Security number and a driver’s license or state identification card.
The validity period for DACA under the program in its original form was two years, with the option to renew as long as you continue to qualify. Unfortunately, when DACA was created, it was done so through administrative action rather than being passed into law by Congress.
This distinction is why DACA is so vulnerable and can potentially be altered or even eliminated by DHS or the president.
The Department of Homeland Security Rescinds DACA
In 2017, the Deferred Action for Childhood Arrivals program was rescinded by the Acting Secretary of the DHS. This action led to a number of lawsuits being filed across the country, challenging the action taken to terminate the program.
The Fourth and Ninth Circuit Court of Appeals ruled in line with several district courts that the decision to rescind DACA was “arbitrary and capricious.” Because of this distinction in how the program was terminated, the rescission was determined to have been unlawful. Additionally, the Ninth Circuit upheld a preliminary injunction halting the repeal of DACA nationwide.
In response, the Trump administration petitioned the United States Supreme Court to hear their case supporting the termination of the DACA program.
The Supreme Court Ruling on the Status of DACA
Oral arguments were heard by the United States Supreme Court on November 12th, 2019. On June 18th, 2020, the Supreme Court ruled in Department of Homeland Security v. Regents of University of California to overturn the termination of the DACA program. This ruling was made for the same reason cited by the lower courts of the termination being “arbitrary and capricious.”
This decision was further enforced a month later by the United States District Court of Maryland in Casa de Maryland v. U.S. Department of Homeland Security. In this ruling, the presiding federal judge ordered that the DHS reinstate the DACA program to its pre-termination status and that they start accepting new applications.
DACA Returns in a Limited Form
Following the ruling by the Supreme Court, two memos were issued by the government on July 28th, 2020, and August 21st, 2020. These memos clarified how the government would proceed with the processing of DACA applications on a temporary basis as they continued to explore their legal options regarding the program.
Under the guidelines laid out in these memos, the Department of Homeland Security proceeded to take the following actions regarding DACA applications:
- Continue accepting renewal DACA applications, while shortening the renewal period from two years to one year
- Reject all new DACA applications along with the associated Employment Authorization Document (EAD) applications
- Reject all advance parole applications received from DACA recipients except under exceptional circumstances
While this move did continue to bar new applicants from applying for DACA, it at least allowed anyone who had ever been a DACA recipient to apply for a renewal of their enrollment in the program, as long as they were still eligible.
Since DACA had been temporarily shelved, this meant that many applicants faced a far more difficult renewal process than is normally required. The renewal process for DACA is typically relatively simple, requiring the applicant to submit their application packet and a copy of their work permit.
However, those whose DACA expired over a year before renewal were required to include all the evidence required for an initial application. Additionally, the change from two-year enrollment to one-year enrollment meant a significant increase in the filing fees for two years in the program.
DACA Returns to Pre-2017 Rescission State
After a United States District Court ruling on December 4th, 2020, USCIS began to once again process DACA applications in the same manner as they had before the attempts made by the Trump administration to scuttle the program.
In compliance with the ruling, USCIS began:
- Once again accepting first-time DACA applications based on the terms of the policy in the form it was in before DHS rescinded it
- Accepting renewal requests in the manner done before the program came under attack in September of 2017
- Accepting applications for advance parole documents based on the terms of the program pre-September 2017
- Accepting applications for Employment Authorization Documents as they had under the program initially
- Restoring the two-year enrollment in DACA, extended from the temporary one-year enrollment
- Restoring the two-year validity period of EADs, extended from the temporary one-year validity
Those who applied for a DACA and EAD extension during the temporary period were made eligible to easily alter their extension to the restored two-year validity period.
Another Attempt to Overturn DACA
A critical part of the ruling by the Supreme court to overturn the repeal of DACA was that they did not rule on the legal status of DACA itself. The lack of clarification by the court on the legality of the program has helped pave the path for continued challenges to DACA.
On July 16th, 2021, the U.S. District Court for the Southern District of Texas ruled that the DACA policy is illegal. Under the ruling, the court vacated the memorandum initiating the program and remanded it to the DHS for further consideration.
They also issued a permanent injunction prohibiting the continued administration of DACA and barring reimplementation of the program without compliance with the Administrative Procedure Act. However, the injunction and the vacating of the DACA memorandum were temporarily stayed by the court for those who obtained DACA before July 16th, 2021.
In compliance with the ruling, DACA renewal requests will continue to be processed as normal until further action is taken in regard to the program. However, while the Department of Homeland Security will continue to accept the filing of initial DACA requests along with the accompanying requests for employment authorization, they are prohibited from granting them.
Latest Updates With DACA
On August 30th, 2022, the Biden administration made a move to help fortify DACA against attempts to dismantle the program. While the new rule codifying the Deferred Action for Childhood Arrivals program may provide some protection for the program against the legal challenges it currently faces, many proponents of the program argue that it doesn’t do enough.
The codification of DACA was mainly in response to the Southern District of Texas court ruling that the program was unlawfully created. One of the reasons cited supporting the illegality of the program was that it did not go through “notice and comment,” a formal rulemaking procedure.
The Biden administration has since completed the notice and comment process, with the intent of nullifying at least one of the arguments made against the lawful status of the program. However, this was just one of the reasons the court cited for declaring that the program was created illegally.
The court’s ruling is currently being appealed, with a ruling expected from the Fifth Circuit Court of Appeals in the coming weeks.
The Future of DACA
The future of the DACA program remains uncertain. Even if the Fifth Circuit rules to overturn the ruling of the Southern District Court, the future of the program is far from secure. The new rule from the Biden administration failed to include any measures to truly expand or strengthen the program.
One notably absent alteration was that the date on which an immigrant must have arrived in the United States to be eligible for the program was not adjusted. With the date remaining on June 15th, 2007, the program will eventually terminate itself.
Since applicants are required to have come to the U.S. while under the age of 16 and can not apply until after they turn 16, the last wave of eligible applicants will soon be old enough to apply, and those born after June 15th, 2007, will be out of luck unless further action is taken.
In addition to failing to provide a path for the program to endure into the future, the new rule also failed to take on a number of smaller reforms that would have made the DACA application process easier for Dreamers.
How Can DACA Be Protected
The only way to provide meaningful and lasting protection for the Deferred Action for Childhood Arrivals program is for Congress to pass legislation that solidifies the status of the program. With the filibuster and a continued pattern in Washington of non-partisan cooperation, this will be difficult, but not impossible.
However, even if DACA were to be passed through Congress and signed into law, in its current form, it can not provide Dreamers with the long-term protections they need. Changes must be made to the program beyond changing the date that applicants must have arrived in the United States.
The most significant change to the program that could truly provide Dreamers with a secure future is by including a path to permanent residency and citizenship. Having a clear roadmap for obtaining permanent residency and citizenship and being free of the threat of deportation is significant. Those facing this threat on a daily basis know how precious this protection can be.
Get Help With Your DACA Application From an Immigration Solutions Company
While providing meaningful improvements to the DACA program and guaranteeing its status is difficult in a polarized government, it is possible if people in power push hard enough to provide the necessary protections for Dreamers.
If you are submitting a DACA application, an immigration solutions company like ImmigrationDirect can help. We can provide you with the tools you need to ensure that your application is filed correctly and on time to give you the best chance of receiving protection under this program. Contact us today to get started with your application.