DACA was rescinded on September 5, 2017, and USCIS has not accepted any renewal applications since October 5, 2017. On January 9, 2018 a federal judge ordered USCIS to resume accepting DACA renewal applications.
WHO CAN FILE
Any person who meets all the DACA requirements, and has held DACA at some point in the past may now prepare a renewal application. This includes those whose DACA is expiring, or has already expired. This applies nationally.
Only people who have never held DACA before are unable to apply.
SHOULD I FILE?
Generally, yes. However, there may be certain circumstances in which it may not be a good idea to file, such as picking up minor criminal convictions, or a large gap of time since your last DACA, other immigration violations, or something else in your background that makes you a priority for ICE.
Advance parole (travel permission for DACA holders) is still unavailable. The reinstatement of DACA does not cover advance parole, though exceptions may be made in truly deserving or emergency circumstances.
WHAT’S DIFFERENT THIS TIME AROUND
One of the legal issues that’s being fought over is whether the President has the authority to stop or pause deportation of entire classes of people. As a result, DACA has a better chance of surviving if it’s not perceived as quite so “automatic.” That means we can expect USCIS to ask for more proof, and deny cases for people who they think might not deserve DACA relief, even if they technically meet all the requirements.
While it’s still too early to tell for sure, this may well mean DACA renewals won’t be so automatic. There may be requests for evidence. It may be a good idea to submit character evidence: things that show good moral character, community involvement, and educational achievement.
WHAT MAY HAPPEN TO MY DACA APPLICATION?
It is far too early to tell exactly how this will play out. We can expect the Trump administration to appeal this ruling, but it will go to the generally pro-immigrant 9th Circuit, where I do not expect them to prevail. From there, however, it would go to the Supreme Court, and there, its fate is far less certain. I would not be surprised if we saw rapid appeals and emergency hearings as we saw (and are seeing) with all the Muslim Ban litigation.
That means even if you file, there’s a chance USCIS will wind up having to sit on your case, or deny it (if the administration prevails). You might even wind up with an approval, and later have that approval taken away from you. You will not get your $495 filing fee back under any circumstance.
However, there is a powerful reason to file anyway, besides the obvious chance it will get approved: having a pending application may convince an immigration judge not to order you deported if you find yourself before one. I don’t want to give a false sense of security: pending DACA is no guarantee. But it’s something that might help and will not hurt, so that makes it a good idea.
WHAT ABOUT THE DREAM ACT?
That is an ongoing battle. The President confuses DACA with the DREAM Act, but they are very different things. Some in the advocacy community may be concerned that reinstating DACA takes away the “emergency” of a firm sunset date (March 5, 2018), which was helping push Congress to come to a resolution. But remember: a legal loss for the administration on DACA, if ultimately upheld, is also leverage for political pressure for the DREAM Act. Moreover, as many as 122 Dreamers are losing DACA protection every day, according to the Center for American Progress, even before the so-called “sunset date.” Ultimately, DACA reinstatement does not mean the DREAM Act is any less urgent. DACA was thin ice, and this ruling only partially reinstates it.
More fundamentally, we can’t continue to play Pong with the administration and accept their limited frames of border security for Dreamers. Because meanwhile, they killed DAPA. They’re attacking TPS countries, one by one. They banned Muslims. They’re raiding businesses and homes. They’re trying to crash the entire immigration court system to do away with it. They’ve continued to block meaningful immigration reform, peddling myths of “chain migration” and “anchor babies.”
This is about one thing: doing what’s right. Keep your eyes on that prize.