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By Loan T. Huynh, Robert D. Aronson, Laura J. Danielson & Debra A. Schneider

On January 9, 2018, the U.S. District Court in the 9th Circuit issued an order directing the government to partially maintain the Deferred Action for Childhood Arrivals (DACA) program, which on September 5, 2017, the Trump Administration had rescinded. This advisory summarizes the provisional relief provided by the court and advises on future DACA filings, at least until the situation changes.

  • Those Who Have Never Had DACA: USCIS will not accept DACA applications from individuals who have not previously been granted DACA. The court decision states that applications from people who have never applied for DACA “need not be processed.” USCIS has clarified in a January 13, 2018, update that it will refuse to accept new applications.
  • Those Who Currently Have DACA: Individuals who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765 and the Form I-765 Worksheet, with the appropriate fee or approved fee exemption request, at the USCIS designated filing location and in accordance with the form instructions.
    Under the instructions on USCIS’s website, applicants are instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. The form instructions state that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs also note that requests received more than 150 days in advance will be accepted, but could result in an overlap between the applicants’ current DACA and their renewal DACA. Our recommendation is that it may be best to file for renewals even before the 150 day mark, in case this opportunity dissolves.
  • Those Whose DACA Expired On or After September 5, 2016: Under the January 13 guidance, applicants whose DACA expired on or after September 5, 2016, are eligible to apply for renewal. USCIS asks applicants to list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
  • Those Whose DACA Expired Before September 5, 2016: Applicants whose DACA expired prior to September 5, 2016, need to submit initial DACA request applications. USCIS’s guidance states that recipients whose previous DACA expired before September 5, 2016 cannot request DACA as a renewal, but may file a new initial DACA request. These applicants are instructed to list the date their prior DACA expired on Part 1 of the Form I-821D, if available.
  • Those Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any time also cannot request DACA as a renewal, but may file a new initial DACA request in accordance with instructions. These applicants are instructed to list the date their prior DACA was terminated on Part 1 of the Form I-821D, if available.
  • Advance Parole: USCIS has stated in its January 13 guidance that it will not accept or approve advance parole requests from DACA recipients at this time. The court decision also states that applications for advance parole based on DACA do not have to be processed for now, although processing isn’t prohibited.
  • Discretion: The court decision states that the government can exercise discretion on an individualized basis for each renewal application. Further, DHS is not prohibited from taking enforcement action against anyone, including those with DACA, it determines pose a risk to national security or public safety or who – in the judgement of DHS – “deserve … to be removed.”
  • Lack of USCIS Direction: The court directed USCIS to specify and publicize its renewal process. The January 13 guidance states that more information will be forthcoming. We recommend filing renewal applications sooner rather than later given that this court decision is likely to be appealed by the Trump administration.

At this moment, the government has reopened through February 8, with assurances from Senate Majority Leader Mitch McConnell to negotiate some kind of immigration deal impacting DACA recipients by that date. We will update you as we learn more. In the meantime, please direct any specific concerns to your Fredrikson & Byron team at 612-492-7648.

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