The Deferred Action for Childhood Arrivals (DACA) program was signed into existence by President Obama in June 2012. It was always meant as a stopgap measure to help young people brought into the country as children and are now in a precarious situation — raised as Americans but without legal residency or citizenship — until Congress could pass more comprehensive legislation and a path to citizenship. With the program in place, Congress did not make much progress on this, and few of us could have foreseen the radical shift in immigration policy that came in with the Trump Administration in 2016.
Since then, the DACA program has been under threat, but somehow managed to survive.
The Trump administration announced that it would wind down the program in September 2017, but a federal judge issued a nationwide injunction blocking the move. The Supreme Court ruled in June 2020 that the Trump administration could not end the program without going through formal rulemaking procedures.
The 2020 Court Decision
On November 14, 2020, a United States District Court issued an order requiring the Department of Homeland Security to reinstate the DACA policy that was in effect on September 4, 2017. On December 4, 2020, the District Court directed DHS to take several steps in compliance with its order:
- USCIS is accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to Sept. 5, 2017, and in accordance with the Court’s Dec. 4, 2020, order;
- USCIS is also accepting DACA renewal requests based on the terms of the DACA policy in effect prior to Sept. 5, 2017, and in accordance with the Court’s Dec.4, 2020, order;
- Applications for advance parole documents are once again allowed, on the terms of the DACA policy prior to Sept. 5, 2017, and in accordance with the Court’s Dec. 4, 2020, order;
- One-year grants of deferred action under DACA have been extended to two years; and
- One-year employment authorization documents under DACA have been extended to two years.
Where Things Stand Now
Overall, in the decade since the program was created, more than 800,000 young people have registered for the program.
Looking to the future, it is difficult to say what will happen with DACA. The program has been in place for nearly a decade, but its future has always been uncertain. With the Supreme Court ruling in June 2020, it seems likely that the program will remain in place for the foreseeable future.
In January 2021, the Biden administration directed the Department of Homeland Security to “take all appropriate action to preserve and fortify DACA, consistent with applicable law.” As a result, DHS itself published a proposed rule in September 2021 in an attempt to outline eligibility requirements and codify existing policies in a way that could preempt further legal challenges to the program.
Most recently, in August 2022, there was an important announcement from the Department of Homeland Security (DHS) about the status of the DACA program. In accordance with the priorities of the Biden administration, as outlined above, DHS will aim to “codify and fortify” the DACA program by clarifying its position on two points in particular: deferring the removal of DACA participants and allowing them an opportunity to access a renewable, two-year work permit.
However, unless something more concrete is passed by Congress, it is possible that a future administration could take steps to end the program once again. For now, recipients can continue to renew their status every two years and enjoy the benefits of the program.
Under the Biden Administration, there have been several attempts at a path to citizenship for DACA participants, but none have reached the required level of bipartisan support required to pass Congress. There was the New U.S. Citizenship Act of 2021, as well as the Dream Act of 2021, and the Dream and Promise Act of 2021 — none had the momentum to pass even one chamber.
The fate of the DACA program now seems tied to the November elections. If Democrats are able to win more seats, then they may have a chance to get something passed in the two remaining years of President Biden’s current term. But if Republicans manage to hang on to their current seats, or increase them, that makes any sort of bipartisan legislation on immigration in the near term increasingly unlikely.
Are you a DACA participant, or someone who is otherwise affected by the program? If you have any questions about your legal status, contact us to schedule a consultation!