DACA: No early 2019 move by the Supreme Court

Last update: January 22, 2019

Are DACA applications currently accepted by USCIS?
Yes. Due to a federal court order, USCIS has been again accepting applications for DACA renewals since January 13th, 2018. In short, USCIS stopped accepting DACA applications between October 5th, 2017 and January 13th, 2018.

Who can file a DACA application now?
The following terms currently apply:

  • Applicants must have been granted DACA before
  • Renewal applications will be accepted for individuals whose DACA is expiring on or after September 5th, 2016
  • Initial applications will be accepted for individuals whose DACA expired before September 6th, 2016
  • However, applications for advance parole will NOT be accepted

Why is there a legal fight over DACA?
The DACA program was cancelled by the U.S. Department of Justice. They said that the former President of the United States did not have the authority to create the program, only Congress does, so DACA was not legal. The judge disagreed saying essentially that not only did the former U.S. President have the authority to create DACA, but Congress mentioned the existence of DACA at multiple times, clearly implying that it was ok with it.
In short the judge seems to be saying that the U.S. Department of Justice could have said ‘we are changing the policy, we do not want DACA’ and they would have been able to cancel the program. But they said ‘we are canceling DACA because DACA is illegal’ and the judge is saying ‘then you cannot do that because DACA is actually legal’.

What did the Supreme Court decide in January 2019?

The Supreme Court decided to do… nothing.
Due to a federal court order, USCIS has been again accepting applications for DACA renewals since January 13th, 2018. On January 19th, 2017, the U.S. Department of Justice tried to bypass the normal appeal process and asked directly the Supreme Court to overturn the judge’s ruling. But the Supreme Court declined in January 2019 to review the court order that  ‘re-opened’ DACA immediately, just like they have in the past starting in February 26th, 2018.

So what is next?

  • Legally, the various appeals agains the injunctions from three different judges (New York, California and the District of Columbia) ordering USCIS to accept applications for DACA renewals have to proceed.
  • There is also always a possibility that Congress, as part of negotiations to end the shutdown of the U.S. Government or other reasons, might pass a DACA legislation.

In any instance, it is highly likely that DACA renewals will be legally allowed until at least early 2020, the earliest the Supreme Court can now get to a decision on a DACA case (hearings in the Fall of 2019, decision in early January 2020).

What for the others? Are previously issued DACA and EADs immediately revoked?
No, they will be valid until their stated expiration dates.

What if I have a renewal request for DACA and associated EAD pending?

Applications that have already been accepted by USCIS will be processed and two-year permits will be issued for successful applicants.

What if I already have advance parole?

You can keep using it for its stated validity, but it cannot be renewed.

Where can I find the official memorandum about the latest rules?

You can find it here.

Why are DACA recipients ‘dreamers’?

Because they came to the United States before they turned 16.

What does DACA stand for?

Deferred Action for Childhood Arrival.  Until the expiration of their permit, Dreamers are protected from removal from the United States by not being a ‘priority for removal’.

What does EAD stand for?

Employment authorization card.