In the latest decision in the Deferred Actions for Childhood Arrivals (DACA) saga, Judge Andrew Hanen in the Southern District of Texas has found that the new DACA Final Rule issued by the Biden Administration was unlawful. In addition, he expanded the original July 16, 2021, injunction and order of vacatur to cover the Biden Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.”

The decision means that:

  • USCIS will continue to accept DACA applications, but it will not process any initial DACA requests.
  • Employment Authorization Documents (EADs) for current DACA recipients will remain valid until they expire.
  • USCIS has confirmed that the agency will continue to accept and process DACA renewal requests and EAD applications in connection to active DACA grants.

Judge Hanen previously found that the Obama program was unlawful, a ruling affirmed by the U.S. Court of Appeals for the Fifth Circuit in 2022. The appellate court found the program violated the Administrative Procedure Act and was contrary to federal immigration law. It added that the program also was not a valid use of prosecutorial discretion by DHS. In his new ruling, Judge Hanen found the same applied to the new Biden Administration Final Rule.

The history of DACA has been controversial since its inception. Although the new decision is not surprising based on Judge Hanen’s prior opinions on the legality of DACA, it highlights a major flaw in the immigration system: a lack of permanent protections for DACA recipients. As this decision will likely be appealed to the Fifth Circuit, the debate over the benefits of the DACA program will continue until there is a permanent solution enacted by Congress for undocumented immigrants who came to the United States under the age of 16.

Most DACA recipients have limited options for immigration relief. Jackson Lewis attorneys are available to advise regarding possible strategies.

The Deferred Action for Childhood Arrivals (DACA) policy continues to be under attack. In Judge Andrew Hanen’s court in the Southern District of Texas, a coalition of Republican states filed a motion for summary judgment in a long-pending case alleging that the Biden Administration’s new DACA rule is no more valid than the original DACA policy.

The DACA policy was instituted in 2012 during the Obama Administration without going through the rulemaking process. It allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. The policy has been challenged for years through litigation at all levels of the federal courts, including the U.S. Supreme Court. Despite unfavorable rulings, the program continues, at least in part, based on litigation stays. Currently, “Dreamers” with DACA status may continue to renew their statuses and their employment authorization (EADs). New initial applications may be accepted by USCIS, but they cannot be adjudicated due to the current litigation. Even though the Biden Administration re-issued the new policy through a rulemaking process – DACA beneficiaries still remain in a kind of limbo today due to the litigation. The only permanent solution would be federal legislation, but that has yet to make its way through Congress.

The coalition of states led by Texas with their summary judgment motion is asking the court to invalidate the new Biden rule and provide a two-year “grace period” during which current DACA beneficiaries could continue to renew their DACA statuses and EADs while planning for their lives post-DACA.

DACA is not an immigration status nor is it pathway to a permanent residence, i.e., a green card. Most DACA recipients have limited options for relief. And those with options need to carefully examine their strategies and should consult with competent immigration counsels to avoid the risk of being barred from returning to the United States.

Jackson Lewis attorneys are available to assist those who are navigating these tricky waters by analyzing specific options and the risks involved.

The new Deferred Action for Childhood Arrivals (DACA) final rule is in effect – to the extent permitted by court orders.

DACA allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. There are approximately 600,000 immigrants, known as “Dreamers,” who are protected by DACA.

The DACA policy instituted in 2012 during the Obama Administration was just that – a policy. The policy was issued without going through the rulemaking process. DACA has been in limbo for years because the program has been challenged in court and by the Trump administration. Litigation regarding DACA has been ongoing since 2018 – even making it the U.S. Supreme Court. Most recently, on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit, affirmed that the original DACA policy is unlawful. Despite that, the court continued the partial stay that allows USCIS to adjudicate DACA renewals and to accept (although not adjudicate) new initial DACA applications.

To overcome some of the problems identified in the litigation, the Biden Administration issued a new rule essentially codifying the old policy through the notice-and-comment process to fortify DACA. The new final rule, which went into effect on October 31, 2022, maintains the existing threshold criteria for DACA, allows for two-year renewable Employment Authorization Documents (EADs), and confirms that DACA is not a form of lawful status, but rather DACA recipients are considered lawfully present in the United States. Unfortunately, the final rule has not solved the problem and the program remains limited to the extent permitted by court orders, such as the Fifth Circuit Court of Appeals’ decision on October 5, 2022. The Fifth Circuit also remanded the case back to the district court to consider the new DACA final rule.

The Fifth Circuit’s ruling does not affect the validity of current grants of DACA or EADs already issued by USCIS. Those with DACA and/or EADs may continue to renew their DACA status and their EADs. There is no need to conduct reverifications until the EAD expires. The FAQs issued by USCIS in July 2021 are still applicable.

Because of the “instability” of the program and because the administration would like to see it expanded to cover more individuals, President Joe Biden has continued to call for Congressional action. Secretary of Homeland Security Alejandro Mayorkas has said, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

If you have questions about DACA recipients and their employment authorization or how to handle Form I-9 Employment Eligibility Verification for DACA recipients, Jackson Lewis attorneys are available to assist.

Responding to the history of legal challenges, the Biden Administration is trying to give the DACA (Deferred Action for Childhood Arrivals) program more heft by changing it from a policy to a regulation. On October 31, 2022, a new final rule will become effective.

To the dismay of many advocates for the “Dreamers,” however, the new final rule simply reinstates the previous policy without making any substantial changes. For instance, the new rule does not reach individuals who were brought to the United States by their parents after 2007 nor does it reach “Documentary Dreamers” who have aged out of their parents’ visas.

Under the new final rule, individuals without lawful permanent status in the United States may apply to defer removal for a renewable period of two years and receive employment authorization. To be eligible, such individuals must have come to the United States while under 16 years of age, have continuously resided in the United States since June 15, 2007, and must have been physically present in the United States on June 15, 2012, and at the time of the DACA application. In other words, the individual must have been in the United States when the original DACA policy was initiated by the Obama Administration.

A federal district court judge in Texas ruled in July 2021 that the DACA policy could not be enforced because it was not enacted correctly. That decision is still on appeal at the U.S. Court of Appeals for the Fifth Circuit. In the meantime, the district judge allowed that those already in DACA status could continue to renew their eligibility, but that new initial applications for DACA could not be accepted. That injunction will remain in effect until a ruling comes down that changes it — even after the new rule goes into effect.

That is why President Joe Biden has made clear that Congress is in the best position to make DACA protection permanent, to change DACA eligibility to encompass a larger group of individuals who have been brought to the United States by their parents, and to provide a pathway to citizenship for DACA and DACA-type beneficiaries.

Jackson Lewis attorneys are available to assist regarding strategies for Dreamers and to advise regarding Form I-9 Employment Eligibility Verification for DACA recipients.

Efforts to pass “Dreamers” bills that would provide a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA) recipients have remained stagnant. In an effort to stabilize the DACA program, absent congressional action, the Department of Homeland Security (DHS) has published a proposed federal regulation announcing its intent to codify the DACA program.

The proposed rule keeps DACA eligibility guidelines consistent with the June 15, 2012, DACA memorandum issued by former Secretary of Homeland Security Napolitano during the Obama Administration, but provides some clarification:

  • The optional employment authorization requires a separate application. Accordingly, although the total fees will remain at $495, requestors can pay $85 when requesting DACA (Form I-821D) and can request a work permit, which would cost an additional $410 (Form I-765). The request for a work permit can be submitted at the same time or subsequently. Regardless of when employment authorization is requested, the grant period for the work permit will not exceed the grant period given by DACA.
  • DACA requestors must establish an economic need to be eligible for employment authorization by filling out Form I-765WS along with Form I-765.
  • DACA recipients are lawfully present in the United States under the Social Security regulations.
  • DACA recipients do not accrue unlawful presence.
  • DACA recipients are eligible to petition for advance parole for urgent humanitarian or significant public benefit reasons.
  • DACA recipients returning with advance parole can satisfy the “inspected and admitted or paroled” requirement for adjustment of status purposes under INA § 245(a).
  • Information about DACA recipients and their family members included in DACA requests will not be shared affirmatively with Immigration and Customs Enforcement, U.S. Customs and Border Protection or law enforcement agencies for immigration enforcement-related purposes, unless an exception applies, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
  • USCIS may terminate a person’s DACA at any time with or without issuance of a Notice of Intent to Terminate when a person does not meet the threshold criteria, commits disqualifying crimes, or presents national security, public safety concerns, or other adverse factors.
  • USCIS will automatically terminate DACA when a Notice to Appear (NTA) is filed with the immigration court (unless USCIS issues the NTA in relation to an asylum application) or a DACA recipient leaves the United States without advance parole.
  • A DACA termination automatically results in termination of the employment authorization document.
  • DACA itself does not confer any rights or entitlements to remain in or re-enter the United States. DHS may initiate any criminal or other enforcement action against a DACA recipient at any time.

The proposed rule seeks to clarify criminal-related bars for DACA eligibility. DHS is proposing to clarify the term “significant misdemeanor” by identifying specific misdemeanors that would be automatic bars to DACA eligibility. These would be offenses for which the individual was sentenced to time served in custody of more than 90 days. Having a felony or significant misdemeanor conviction are already automatic bars to DACA eligibility, but the proposed rule would expand this to expunged convictions. DHS is welcoming comments on whether to include a more detailed definitions of these offenses, including what constitutes “minor traffic offenses.” The public has until November 29, 2021, to submit comments about this rule.

Even after the proposed rule becomes final, the DACA program would continue to hinge on courts’ interpretations of the program. But absent a court order preventing DHS from continuing the DACA program, once the final rule is published, USCIS may begin to accept and adjudicate initial DACA requests from persons who never had DACA, along with DACA renewals.

 

Reacting to a ruling from a federal district court judge in Texas, the Biden Administration proposed a new DACA (Deferred Action for Childhood Arrivals) rule that would strengthen protections for the “Dreamers.”

DACA has been under attack since 2017, when the Trump Administration announced it would terminate the program. Litigation has prevented that from happening, but in July 2021, U.S. District Court Judge Andrew Hanen in State of Texas et al. v. U.S. et al. ruled, primarily on technical grounds, that DACA was illegal. Judge Hanen, recognizing the substantial reliance interests involved, allowed current DACA beneficiaries to continue to review their statuses (at least while appeals were pending), but has prevented the approval of any new DACA applications.

To overcome the argument that DACA was illegal because it was created by President Barack Obama by a memorandum, the Biden Administration is basically recreating the program through the rulemaking process, including a 60-day comment period. The eligibility requirements are the same as in the old rule. Applicants:

  • Must have come to the United States before turning 16 years of age;
  • Must have continuously resided in the United States from June 15, 2007, to the time of filing;
  • Must have been physically present in the United States on June 15, 2007, and on the date of filing;
  • Must be enrolled in school, have graduated from high school, earned a GED, or been honorably discharged from the U.S. military (including the Coast Guard); and
  • Cannot have any felonies nor certain misdemeanors on their record and cannot pose a threat to national security or public safety.

There are a few new wrinkles:

  • The application process and filing fees are modified;
  • A specific category for DACA Employment Authorization Documents is established; and
  • The rule clarifies that DACA beneficiaries are “lawfully present” for Social Security purposes.

Many comments are expected during the Notice and Comment period, so it may take some time for this new rule to go into effect. In the meantime, legislation continues to be the best way to solidify DACA and give DACA beneficiaries a pathway to citizenship. The Senate Parliamentarian, however, has determined that DACA cannot fit into a reconciliation strategy and getting bipartisan agreement for the Dreamers will be a difficult task.

Meanwhile, the Biden Administration has appealed Judge Hanen’s ruling and those with DACA status may continue to renew their status and their employment authorization when necessary.

Jackson Lewis attorneys are available to assist you with any questions about DACA and DACA employment authorization.

 

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Please reach out to your Jackson Lewis attorney with any question about employees on DACA.

 

On his first day in office, President Joseph R. Biden signed a memorandum for the Attorney General and the Secretary of Homeland Security ordering them to preserve and fortify the Deferred Action for Childhood Arrivals policy (DACA). DACA was instituted by President Obama, terminated by President Trump, and restored by the judiciary. With this proclamation, it seems clear that the government should at least return DACA to the status quo ante and continue to follow the relevant court order:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants of deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

In a separate Order, President Biden also extended Deferred Enforced Departure (DED) and employment authorization for Liberians until June 3, 2022.

In the meantime, the Biden Administration has also proposed an overhaul of U.S. immigration laws. This proposed legislation includes, among many other things, benefits for DACA recipients and migrants in Temporary Protected Status (TPS).  TPS beneficiaries are individuals from countries ravaged by natural disasters or political unrest who cannot return to their homes.  Like DACA recipients, TPS beneficiaries have been in limbo for years as the Trump Administration attempted to terminate that status while recipients and immigration advocates have supported litigation to keep those protections in place.

It has been reported that the proposed immigration overhaul includes the immediate ability of “Dreamers” and TPS beneficiaries to apply for Green Cards (assuming they meet eligibility requirements) followed by a three-year path to citizenship.

Jackson Lewis will continue to follow developments and provide updates as they become available.

On January 4, 2021, DHS announced that for I-9 purposes, Deferred Action for Childhood Arrivals (DACA) recipients may present an unexpired Employment Authorization Document (EAD) with Code C33 issued on or after July 28, 2020, along with an I-797 Extension Notice that shows an additional one-year extension. This new procedure is in response to a court order.

After the U.S. Supreme Court ruled the Administration had not properly terminated DACA, Acting Director of Homeland Security, Chad Wolf, issued a memo explaining that the Administration would be reviewing DACA and that until the review was concluded, DACA would be restricted. No new initial applications would be accepted, renewals (including renewals of EADs) would be limited to one year, and advance parole would be issued only for urgent humanitarian purposes, the memo stated. Then, in November 2020, a federal judge, Nicolas G. Garaufis, ruled that Acting Director Wolf had not been properly appointed and his rollback of DACA, therefore, was invalid.

As part of the Judge’s ruling, USCIS was ordered to post notices informing the public of how the court’s order would be implemented. That notice can be found on the USCIS website along with instructions on how to apply for DACA. In compliance with the court order, USCIS notified the public it would do the following under the terms of the DACA policy in effect prior to its termination by President Donald Trump on September 5, 2017:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants for deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

USCIS also agreed to take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization to those who were issued such documentation on or after July 28, 2020, with only a one-year validity period. As it turns out, that evidence will be in the form of an I-797 Extension Notice.

DHS plans to comply with the above while the Judge’s ruling remains in effect, “but DHS may seek relief from the order.” DHS has not yet appealed the order. Although President-elect Joe Biden has said he would protect DACA, another case threatening the program is pending in federal court in Texas.

Jackson Lewis attorneys will continue to provide updates as they become available.

Federal District Judge Nicolas G. Garaufis struck down the Administration’s most recent attempt to limit the Deferred Action of Childhood Arrivals (DACA) program. He held that the Acting Secretary of Homeland Security, Chad Wolf, had not been properly appointed and therefore, his recent rollback of DACA was invalid. Rules regarding appointment and succession are meant to ensure continuity of leadership but the Trump Administration has tried to circumvent those rules to place particular candidates at the top of DHS without following the normal Senate confirmation process.

The court’s objection to those actions has set the stage for close to a million people across the country to benefit or continue to benefit from DACA protections while they await the arrival of the next administration. Joe Biden has said that one of his first acts would be to reinstate DACA.

The backdrop of the recent federal court decision is dramatic. The U.S. Supreme Court ruled in June 2020 that the Administration had not properly terminated DACA, leading many (including DACA recipients themselves) to believe that DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Although the Supreme Court decision left the door open to the Administration to terminate DACA through proper administrative processes, the belief was that everything would revert to the “status quo ante” in the meantime. But the Administration saw the Supreme Court opinion differently. On July 28, 2020, Acting Director Wolf issued a memo explaining that the Administration would be reviewing DACA to possibly take the steps to terminate it (per the Supreme Court decision), but until that could occur, DACA would be restricted as follows:

  • DHS would not accept applications for initial DACA applications.
  • Renewals of DACA for current beneficiaries would be limited to one year, rather than the usual two years.
  • Advance Parole would be issued only for urgent humanitarian reasons or for the sake of a significant public benefit.

In response to the suit challenging the July 28th Wolf memo, Judge Garaufis said that, despite the Administration’s various tangled attempts to appoint and reappoint Chad Wolf properly, none of those attempts served to correct the problem. He wished “the government well in trying to find its way out of [its] self-made thicket.”

The ruling was not unanticipated because many other cases have raised the issue, including cases challenging new asylum rulesnew USCIS fees, the new public charge rule, and new rules regarding H-1B visas, and judges have been open to the argument. DHS is likely to appeal the ruling because the validity of DHS appointments will continue to thwart and undercut the Administration’s last-minute regulatory efforts.

Jackson Lewis attorneys will provide updates as they become available.