DACA Appeal & Proposed New Regulations

Last July, a Texas federal judge ruled that Deferred Action for Childhood Arrivals (DACA) is illegal and prohibited the government from accepting new applications. The Biden Administration initially refused to accept this ruling, and the Justice Department filed a notice to appeal this decision; this appeal was supported by many across the nation, including a coalition of 23 state attorney generals as well as prosecutors and law enforcement officials.

The case was brought to the Fifth Circuit Court of Appeals, which is known for being more conservative. While the appeal is pending, those already enrolled in DACA are still protected from deportation, and they will not lose their ability to work.

Filing an appeal wasn’t the administration’s only response to the Texas ruling, though. In September, the Department of Homeland Security (DHS), United States Citizenship and Immigrations Services (USCIS), and Biden administration proposed new regulations in response to the court’s initial decision. The proposed rule does not alter DACA eligibility requirements but does seek to codify the following:

  • DACA recipients can petition for Advanced Parole for humanitarian or public benefit reasons, and under INA § 245(a), DACA recipients returning with Advanced Parole will satisfy the “inspected and admitted or paroled” requirement for adjustment of status purposes.
  • DACA recipients do not accrue unlawful presence while on DACA status. Gaps between applications may be viewed differently under the law and should be discussed with an attorney.
  • DACA recipients are lawfully present in the U.S. under Social Security regulations.
  • Those applying for DACA must have a financial need to be eligible for work authorization.
  • DACA can be terminated by USCIS without notice if the recipient commits a crime or presents a danger to public safety or national security.
  • DACA will be terminated if a recipient leaves the U.S. without advanced parole or a Notice to Appear (NTA) is filed in immigration court.
  • Recipients whose DACA is terminated will also have their employment authorization document terminated.
  • DACA recipients and their families will have their information protected as it will not be shared with Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or law enforcement agencies for immigration enforcement-related purposes; this excludes circumstances in which the information is needed for a criminal investigation/prosecution, national security purposes, or fraud claims.
  • DACA itself does not confer any rights or entitlements to remain in or re-enter the United States. DHS may initiate any criminal or other enforcement action against a DACA recipient at any time.

Because of the new regulations, the Biden administration asked the courts to suspend the appeal indefinitely—as the ongoing changes to the DACA regulations will complicate and alter the current appeal. Once the rules are finalized, DACA’s fate still rests in the court’s interpretation of the program, though. If accepted, USCIS may begin to accept and process DACA applications from those seeking to enter the program as well as renewals. Amidst the initial application struggles, renewal applications have also become increasingly backlogged, which has had dire short- and long-term consequences for DACA recipients.

Get Help from Our Legal Team

We do not know when the regulations will be finalized nor do we know how long backlogs will continue. But, we do know this—the attorneys at Milla & Associates will continue to work tirelessly to help our clients with DACA immigration services, including:

  • Filing initial applications
  • Renewing applications
  • Employment Authorization Documents initial or renewal applications
  • Advance Parole applications
  • Considering how individuals eligible for DACA may also be eligible for other immigration benefits (i.e. “green cards” or other visas based on familial relationships)

Looking for more information on how to apply for DACA or renew your protections? Schedule a consultation with our legal team by reaching out online or at (312) 702-1782. Se habla español!