Published March 15, 2018

The processing of applications for employment authorization documents for hundreds of thousands of young adults under the Deferred Action for Childhood Arrivals (DACA) program, an Obama era executive initiative, was supposed to come to a halt by now.   But thanks to 2 separate, federal court rulings issued in recent weeks, the program has been given new life, albeit with a most uncertain future.

DACA was put into action back in 2012, following Congress’ failure to agree on immigration reform legislation, including a law to establish a path to legalization for our nation’s 11 million undocumented individuals.   The implementation of DACA has resulted in the issuance of 2 year, renewable work permits and a shield against deportation for approximately 800,000 undocumented young adults brought to the U.S. as children.    Looking to act on one of his campaign promises, President Trump first announced his decision to recind DACA 6 months ago, but legal challenges in courts have thwarted the President’s agenda on this.  Furthermore, in recent months, Congress has been unsuccessful in achieving a legislative fix to allow some version of DACA to continue in the short run.   In the meantime, unless Congress can reach some sort of consensus on the issue, the judicial fight on the legality of DACA termination will likely come before the U.S. Supreme Court by year’s end.

Based on Trump’s September, 2017 announcement terminating DACA, current DACA holders were eligible to file for extensions of their current DACA status and EAD’s through October 5, 2017, with the approval of such an extension allowing for an additional 2 years of validity.  Given that DACA/EAD extension filings have historically only been accepted no sooner than 150 days prior to expiration, DACA holders with expirations of March 6, 2018 and beyond were thought not to be eligible to file an extension request.

Pursuant to court orders entered by federal district judges in California and New York,  and over the objections of the Trump administration, DHS/CIS must start accepting renewal applications from all current, otherwise eligible, DACA holders.   These decisions are the ones on track, after Courts of Appeal have chimed in, to be the subject of Supreme Court review.   Importantly, first time DACA applicants are not eligible to have their applications considered pursuant to these court orders.

Several big questions remain for current DACA holders as the litigation continues.  First, how long in advance can a current DACA holder apply to renew his/her status and EAD?  Second, should current DACA holders look to spend the money to renew their status and EAD’s since there is no guarantee DHS/CIS will actually act on applications filed during this judicial fight?  Third, when will this nightmare end for this mainly productive, and valuable segment of our society who face the termination of their ability to be employed and shielded from deportation?  For now, we are only left with our best guesses.

PUBLISHED March 15, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois