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WHAT’S THE FUTURE OF DACA?
By Ann Fischer
Since February of last year, millions of immigrants have been in emotional turmoil, wondering what the future of DACA (Deferred Action for Childhood Arrivals) will be. Just several months earlier, they faced a bright future when President Obama had issued an executive order to create DAPA (Deferred Action for Parents of Americans), a program for certain individuals with children who are U.S. citizens and expand the existing DACA program. The action was set to shield approximately five million immigrants from deportation and offer more immigrants work authorization and a clearer path to citizenship.
Then in February 2017, the U.S. District Court for the Southern District of Texas issued a preliminary injunction to halt the implementation of DAPA, questioning Obama’s authority to do so without Congressional approval. Twenty-six other states, including Illinois, joined them in appealing the case to the Fifth U.S. Circuit Court of Appeals, concerned that the President’s actions violated the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution. The lower court decision was upheld but the case progressed to the U.S. Supreme Court in June 2017. There the judges were split 4-4, and they proclaimed the Fifth U.S. Circuit Court decision to be “affirmed by an equally divided court.”
As the case is pending, the DAPA executive order cannot be carried out and the future of DACA is unclear., At the end of June, Texas and many other states sent a letter to Attorney General Jeff Sessions asserting that the original 2012 DACA memorandum was unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter noted that if the Department of Homeland Security would not rescind the DACA memo by September 5, 2017, the States would seek to amend the DAPA lawsuit to include a challenge to DACA, since they see the bill as having the same legal and constitutional defects as DAPA. The next day, the Attorney General asked that “in light of the costs and burdens that will be imposed on the DHS (Department of Homeland Security) associated with rescinding the policy, that the DHS should consider an orderly and efficient wind down process.”
By March 5, Congress is expected to bring the issue to resolution. In the meantime, action is required depending on the individual’s current DACA status as well as the expiration date of their Employment Authorization Documents (EADs) and where they are in the renewal process.
While the future of DACA continues to evolve, it is important that recipients and aspiring recipients of DACA understand their options and obligations:
CURRENT RECIPIENTS OF DACA will retain their period of deferred action and their employment authorization document (EAD) until they expire, unless terminated or revoked.
INITIAL DACA REQUESTERS AND CURRENT RECIPIENTS EXPIRING SEPTEMBER 5 – MARCH 5, 2018 WHO HAVE RENEWED WITH EAD on or before September 5th will continue to be adjudicated.
RECIPIENTS OF DACA EXPIRING BETWEEN SEPTEMBER 5-MARCH 5, 2018 WHO HAVE NOT FILED FOR RENEWAL may do so with USCIS before October 5th.
Due to the rescission, there are two groups of people who are no longer eligible for DACA:
RECIPIENTS OF DACA WHOSE STATUS EXPIRED ON OR BEFORE SEPTEMBER 4, 2017 AND DID NOT FILE FOR RENEWAL will no longer be eligible for DACA.
INITIAL REQUESTERS OF DACA who have not completed paperwork before September 5 will not be eligible for the program.
This information and more concerning the future of DACA is available in the 2017 DACA Announcement on the USCIS website.
As the future of DACA continues to unfold, , feel free to contact Gardi, Haught, Fischer & Bhosale LTD about any issues related to your case. We are experienced in immigration law and available for consultation. Contact us at 847.944.9400 or request a free case evaluation below.
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