Hundreds of thousands of people without immigration status who came to the U.S. as children may now qualify to apply for DACA and work permits.
DACA, or “Deferred Action for Childhood Arrivals,” is a policy which allowed some individuals who came to the U.S. as children to receive a renewable two-year period of protection from deportation and a work permit to work legally in the United States.
The program began in 2012 but was suspended in 2017. In June 2020, the U.S. Supreme Court decided that the suspension was illegal, but until now it was unclear what that meant for new DACA applicants.
Today, Judge Paul Grimm of the U.S. District Court for the District of Maryland issued a ruling on a case related to DACA, Casa de Maryland v. Dep’t of Homeland Security.
The federal judge’s decision cited the Supreme Court’s decision on DACA last month in Dep’t of Homeland Sec. v. Regents of the Univ. of California. The U.S. Supreme Court decided that the government’s process when it suspended DACA in 2017 was “arbitrary and capricious,” so the suspension was not valid.
U.S. Citizenship and Immigration Services (USCIS), the agency in charge of deciding immigration petitions, issued a statement criticizing the Supreme Court’s June 2020 decision.
The USCIS official statement, written by U.S. Citizenship and Immigration Services Deputy Director for Policy Joseph Edlow and published on the news section of the agency’s website, called DACA illegal and an “amnesty program” with “no basis in law.”
Given this official statement from USCIS, many potential DACA applicants and their attorneys were unsure about whether USCIS would process DACA renewals or accept new applications despite the Supreme Court’s decision.
In fact, as of the date of this federal court ruling on July 17, 2020, the USCIS website still states that it “is not accepting requests from individuals who have never before been granted deferred action under DACA.”
In the Maryland case, Judge Grimm decided that the “rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status.”
New applicants for DACA can now point to Judge Grimm’s decision, together with the Supreme Court’s decision from June 2020, to show USCIS why the government must now accept their applications.
According to USCIS requirements, DACA applicants could not have felonies or serious misdemeanor criminal convictions on their record. They are required to have been under the age of 31 as of June 15, 2012; must have come to the U.S. before their 16th birthday; and had continuously resided in the U.S. since June 15, 2007. They are required to have a high school diploma, GED, be currently enrolled in school, or be a veteran of the U.S. military. New DACA applicants, and those renewing their DACA status, must pay a $495 fee to USCIS or obtain a fee waiver.
In August 2018, USCIS estimated a number of almost 700,000 DACA recipients in the United States. At its peak, about 800,000 were enrolled in the program, but at least 40,000 later adjusted status and received green cards. Many others who were in the program either had renewals rejected or let their status expire without renewing.
Prior to the September 5, 2017, suspension of DACA program, USCIS issued work permits and advance parole travel documents to DACA recipients. Based on Judge Grimm’s decision and the Supreme Court’s recent ruling, these processes should also be restored as they existed previously. These documents allow people enrolled in the DACA program to work legally in the United States and to travel abroad and be re-admitted into the United States. In certain cases, being enrolled in DACA may also assist in enabling people without any legal status to receive marriage-based and family-based green cards who normally would not qualify.
It is unclear for how long this window of time to apply for DACA will be open. If the government implements a valid process that complies with the law, it may end DACA again in the future.
Potential DACA applicants seeking to apply or renew their status may not want to wait to find out.
|Joseph Alain Moro is an immigration lawyer and owner of Moro Legal, LLC, a law practice founded in Denver, Colorado.|