Filing DACA Renewal Applications in the Wake of the January 9, 2018 Federal Court Ruling

On January 13, 2018, USCIS updated its website to include guidance on submitting DACA renewal applications in light of the January 9, 2018 court decision. The guidance includes the following information:

• Clients Who Have Never Had DACA: USCIS will not accept DACA requests 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.”
• Clients Who Currently Have DACA: Clients who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765, and 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 for Form I-821D and the DACA FAQs on USCIS’s website, applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant.

The form instructions stated that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs also noted that requests received more than 150 days in advance will be accepted, but could result in overlap between the applicants’ current DACA and their renewal DACA.

• Clients Whose DACA Expired On or After September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired within the past year were eligible to apply for renewal. USCIS’s guidance states that recipients whose previous DACA expired on or after Sept. 5, 2016, may still file a renewal request. USCIS asks applicants to list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D. AILA Doc. No. 18011035. (Posted 1/16/18)
• Clients Whose DACA Expired Before September 5, 2016: Under the policies in effect before the rescission of DACA, applicants whose DACA had expired more than a year prior to reapplying had 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 in accordance with the Form I-821D and Form I-765 instructions. These applicants are instructed to list the date their prior DACA expired on Part 1 of the Form I-821D, if available.
• Clients Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request in accordance with the Form I-821D and Form I-765 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 will not accept or approve advance parole requests from DACA recipients. The court decision had stated that applications for advance parole based on DACA do not have to be processed for the time being.

While the decision is good news in the short term, Dreamers need Congress to pass a permanent legislative solution now more than ever. It seems clear that this Administration will appeal the court’s decision quickly, and the litigation itself is likely to be lengthy and drawn out. Moreover, the decision only relates to renewal applications, leaving Dreamers who were unable to apply for DACA without recourse.