Current Status of Deferred Action for Childhood Arrivals (DACA)

The Deferred Action for Childhood Arrivals (DACA) program was announced by the Department of Homeland Security (DHS) on June 5, 2012. DACA conferred temporary authorization to remain in the United States to certain undocumented youth who came to the United States as children. To be initially eligible for DACA, applicants needed to meet certain requirements, including physical presence, continuous residence, education or military qualifications, and not having disqualifying criminal convictions. Those granted DACA are also granted employment authorization.

There has been federal-court litigation both challenging the Trump Administration’s attempts to terminate DACA and whether the DACA policy at its inception was unlawful. More recently, on October 5, 2022, the Fifth Circuit Court of Appeals issued a decision agreeing that the DACA policy is unlawful but sent the case back to the Southern District of Texas in light of the Biden Administration’s recently issued final rule on DACA. The Fifth Circuit kept in place the court order that prohibits DHS from deciding initial DACA applications but allows for DACA renewals and applications for advance parole. Under the current DACA rules, renewal applications for previous DACA grants that expired more than a year ago will be considered as a first-time application and can’t be decided.

DACA recipients are eligible to seek travel authorization in the form of an advance parole document. Travel authorization is not automatic upon the grant of DACA and must be sought via a separate application. Generally, USCIS will issue an advance parole document for travel abroad to a DACA recipient if the travel is for humanitarian, educational, or employment purposes. Having travelled on advance parole presents advantages for DACA recipients who initially entered the country without inspection or parole. A DACA recipient who has been admitted and inspected or paroled into the United States is eligible to adjust status via an immediate relative, such as a U.S. citizen spouse, barring some other ground of inadmissibility. This eligibility to adjust status through an immediate relative would apply even if the DACA recipient had initially entered without inspection but later travelled and reentered the U.S. with advance parole.

DACA recipients could also have a path to permanent residence through family-based preference petitions or employment-based petitions, but they will need to consular process as having DACA is not a lawful nonimmigrant status. DACA recipients do not accrue unlawful presence while in DACA status, but they need to determine how much unlawful presence, if any, they accrued before they depart the United States to consular process to know if they will trigger a three-year or ten-year bar upon departure. A DACA recipient with 180 days or more of unlawful presence can seek a provisional waiver if he or she is the beneficiary of an approved family-based preference or employment-based petition, so long as the DACA recipient has a spouse or parent who is a lawful permanent resident or a U.S. citizen and is not subject to any other inadmissibility ground.

DACA recipients may also have humanitarian options available to them and unique provisions in the law could apply. DACA recipients should seek immigration counsel to fully understand their immigration options and should continue to timely renew their benefits while permissible.