The Current State of DACA: March 2018

In September 2017, the Trump administration rescinded the Deferred Action for Childhood Arrivals (DACA) program. As of September, new applications have been suspended, and Republicans and Democrats are currently fighting it out in Congress to determine the future of the program.

When the Trump administration made its DACA announcement in September 2017, it announced a 6 month grace period; DACA status and Employment Authorization Documents that expired during the next six months would continue to be renewed for recipients with a work permit set to expire on or before March 5, 2018, if their application was received by USCIS by October 5, 2017.

Disagreements over the future of the program were one of the main factors in the recent government shutdown, with which Democrats were hoping to exact change on the DACA program.

A compromise will have to be made in Congress. This will likely feature concessions from the Democrats on other immigration policies, such as illogical caps on future legal immigration, in exchange for legal status for existing DACA participants. At least three Republican bills are currently being discussed on the Senate floor, each proposing the above as a tradeoff with Democrats on other immigration policies.

The list of Republican demands on immigration is long and varied, but usually includes some combination of: more resources to border enforcement and immigration courts, funding for a wall at our border with Mexico, changes to asylum policies, elimination of the diversity visa lottery, and stricter requirements for family-based immigration.

All of these are unpalatable to Senate Democrats, but they will have to decide just how far they are willing to go to protect DACA participants. Democrats, for their part, are hoping that making some concessions would allow them to pass a bill that not only protects existing DACA participants but also immigrants who didn’t qualify for DACA because they were too old, too young, or for other reasons.

There are many indications that the Democrats are willing to make certain strategic trade-offs to secure the future of DACA participants. In January, Senate Minority Leader Chuck Schumer offered Republicans $25 billion in funding for a wall with Mexico in return for a deal on DACA, but took the deal off the table in the wake of the government shutdown. Still, this shows that Democrats are thinking hard about what to offer to save DACA participants without giving up on the fundamentals of their immigration policy.

This week, DACA participants received some good news—the United States Supreme Court refused to overturn a lower court ruling that stopped the Trump administration from repealing DACA and beginning to deport participants. This means that, at least for now, existing participants are safe and can apply to renew their DACA status while Democrats and Republicans hash out the future of the program in Congress.

DACA Explained

The Obama administration passed DACA in mid-2012. This policy allowed certain immigrants to escape deportation and obtain work permits for a period of two years, which was renewable.

In August 2012, the Pew Research Center estimated that up to 1.7 million people were eligible for DACA. The program was renewable, and had a very high rate of applicant approval (almost 90%).

To qualify for DACA, applicants needed to meet the following requirements (though these do not guarantee approval):

  1. Were under the age of 31 as of June 15, 2012
  2. Came to the United States before reaching their 16th birthday
  3. Had continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making  the request for consideration of deferred action with USCIS
  5. Had no lawful status on June 15, 2012, meaning that:
  • Never had a lawful immigration status on or before June 15, 2012, or
  • Any lawful immigration status or parole that had been  obtained prior to June 15, 2012, had expired as of June 15, 2012
  1. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
  2. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

What DACA Participants Can Do

It is hard to predict which way DACA negotiations will go.

The important thing to remember is that DACA was a temporary program, and never granted legal status anyway. For DACA recipients who are currently facing uncertainty about their eventual renewal, it is important to consider other paths to obtain a green card,  and these options should be explored with a legal professional. Renewals do continue per the recent court decisions.

The situation right now is sensitive, and there are many intricacies on how to proceed for current DACA participants. Contact me to discuss your options!