Colleagues reported today that initial filed DACA applications after the SCOTUS decision have been rejected and returned as USCIS is not currently accepting initial DACA applications. This suggests USCIS is also not accepting applications for advance parole from DACA grantees.
Three weeks ago the Supreme Court came out with its decision on DACA which allows for the program to continue and theoretically reinstated DACA to its original form– opening the door for new initial applications to be filed and applications for advance parole to be filed. While SCOTUS didn’t quite say that DACA itself was a legal program, what they did say is the way the administration tried to end the program was not proper. Read more about the SCOTUS decision.
The next day, USCIS released a statement on their website which started out by stating, “Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program”. This statement seemed to be USCIS taking the position that they would not comply with the SCOTUS decision. To this day, 3 weeks after the initial decision, they have not yet released further instructions for new applicants of applicants for advance parole. For context, when the new public charge rule was given the go ahead by the courts, it took only days for forms and instructions to be updated on their website.
Over the last several weeks immigration practitioners and Dreamers have been wondering what that means for DACA, particularly what it means for new applicants and those who want to apply for advance parole. Would applications be accepted and processed? Would filing fees be cashed but cases denied? Would they outright reject applications? Well for now, we know what the answer is– they’re being rejected. There are new law suits in process to try to get the SCOTUS decision enforced.
What next? This is the million dollar question. The SCOTUS decision was very narrow only maintaining DACA because the way it was ended did not meet the requirements. Based on the administration’s statements and position on immigration, it seems likely that they’ll try to end DACA again, but this time making sure to follow the proper process and rules. For now, DACA remains but it continues to be in a precarious position. My recommendation to DACA grantees remains the same– renew, renew, renew to maximize the amount of time you remain work authorized. If DACA does come to an end, it’s unlikely USCIS would rescind the previously granted work authorizations and probably will just stop future applications from being accepted/processed. Hopefully the new law suits will force USCIS to accept new applications and applications for advance parole before another attempt is made at ending DACA. If applications for advance parole are accepted, please explore this as it may change the posture of your situation and open up other options to legalize your status. Lastly, please encourage your US citizen friends and family members to vote.
**EDIT**As immigration is constantly changing, just after I published this article, the president has announced that he’ll be unleashing a new order in the next month which includes a “road to citizenship” for DACA grantees. We’ll have to stay tuned to see what comes next.