DACA Litigation Information and Frequently Asked Questions

On Oct. 5, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a decision (PDF) on the 2012 Deferred Action for Child Arrivals (DACA) policy in Texas et al. v. United States of America et al., No. 21-40680 (5th Cir. 2022). The court partially affirmed the district court’s July 2021 decision declaring the 2012 DACA policy unlawful. However, the court of appeals preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DHS DACA regulation published on Aug. 30, 2022 and scheduled to go into effect on Oct. 31, 2022. On Oct. 14, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay to the DACA Final Rule.

At this time, this ruling does not affect current grants of DACA for existing DACA recipients and related Employment Authorization Documents. While the DACA final rule is considered by the court, consistent with the court orders and the ongoing partial stay, we continue to accept and process renewal DACA requests, accompanying requests for employment authorization, and applications for advance parole for current DACA recipients, and will continue to accept but not process initial DACA requests. Current valid grants of DACA, related employment authorization, and advance parole will continue to be recognized as valid under the final rule. This means that individuals with DACA and related employment authorization do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.

Beginning on Oct. 31, DHS will continue to grant or deny renewal DACA requests and related requests for employment authorization, in accordance with 8 CFR 236.22 and 236.23, pursuant to the DACA regulation. Pending requests will be adjudicated under the Final Rule beginning on Oct. 31 and do not need to be re-filed. However, under the court orders DHS remains prohibited from granting initial DACA requests and accompanying requests for employment authorization.

The FAQs below provide additional information.

We will provide additional updates as more information is available.

On July 16, 2021, the U.S. District Court for the Southern District of Texas held in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021) that the DACA policy reflected in the June 15, 2012 DACA memorandum “is illegal.” The court granted summary judgment on plaintiffs’ Administrative Procedure Act (APA) claims; vacated the 2012 DACA memorandum; remanded the memorandum to DHS for further consideration; and issued a permanent injunction prohibiting the government’s continued administration of DACA and the reimplementation of DACA without compliance with the APA. However, the court temporarily stayed part of its order vacating the DACA memorandum and its injunction with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests.

Consistent with this July 16, 2021, court order (PDF, 401.59 KB) and with the stay, DHS continues to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization.

In compliance with an order of a U.S. district court, and effective Dec. 7, 2020, U.S. Citizenship and Immigration Services (USCIS) is:

Accepting first-time requests for consideration of deferred action under DACA based on the terms of the DACA policy in effect before Sept. 5, 2017, and in accordance with the court’s Dec. 4, 2020, order;
Accepting DACA renewal requests based on the terms of the DACA policy in effect before Sept. 5, 2017, and in accordance with the court’s Dec. 4, 2020, order;
Accepting applications for advance parole documents based on the terms of the DACA policy before Sept. 5, 2017, and in accordance with the court’s Dec. 4, 2020, order;
Extending one-year grants of deferred action under DACA to 2 years; and
Extending one-year EADs under DACA to 2 years.

USCIS has taken appropriate steps to provide evidence of the 1-year extensions of deferred action and EADs under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.

DHS will comply with the order while it is in effect.

General

Q1. What is the latest information regarding Deferred Action for Childhood Arrivals (DACA)?

A1. On Oct. 31, 2022, the DACA final rule went into effect, to the extent permitted by the current injunction and partial stay. While the DACA Final Rule is considered by the court, consistent with the court orders and the ongoing partial stay, effective Oct. 31, 2022, we will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule. We will also continue to accept and process applications for advance parole for current DACA recipients, and we will continue to accept but not process initial DACA requests. DHS is currently prohibited from granting initial DACA requests and related employment authorization under the final rule; on Oct. 14, 2022, the U.S. District Court for the Southern District of Texas extended its injunction and partial stay to the DACA Final Rule. Current grants of DACA, related employment authorization, and advance parole will continue to be recognized as valid under the final rule. This means that individuals with DACA and related employment authorization do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal. Pending requests will be adjudicated under the Final Rule beginning on Oct. 31 and do not need to be re-filed.

Q2. What did the court orders say? What do they mean?

A2. The July 16, 2021, order from the U.S. District Court for the Southern District of Texas found the DACA policy as reflected in the 2012 DACA memorandum unlawful, but issued a partial stay of its order which allows DHS to continue to accept initial as well as renewal DACA requests, but permits DHS to approve only renewal requests and prohibits DHS from approving initial DACA requests. On October 5, 2022, the court of appeals agreed with the district court and remanded the case to the district court, but maintained the partial stay. On Oct. 14, 2022, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay to the DACA Final Rule.

Therefore, consistent with these orders, USCIS is continuing to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization, but will not grant initial DACA requests after July 16, 2021, and their accompanying requests for employment authorization. Effective Oct. 31, 2022, USCIS will grant or deny renewal DACA requests under the final rule. Current valid grants of DACA, related employment authorization and advance parole will continue to be recognized as valid under the final rule.

DHS will comply with the court orders while they are in effect.

Q3. Is the DACA policy over?

A3. No. While the court orders do not allow USCIS to approve initial DACA requests, we are presently able to continue processing DACA renewals and associated applications because the court temporarily stayed its injunction as to these requests, and extended the injunction and partial stay to the DACA Final Rule. As of Oct. 31, 2022, renewal DACA requests and accompanying requests for employment authorization will be processed under the policies and procedures laid out in the final rule.

While USCIS will continue accepting initial DACA requests, the ongoing injunction and partial stay continue to prohibit DHS from granting initial DACA requests after July 16, 2021, and their accompanying requests for employment authorization.

USCIS will continue to adjudicate requests for DACA renewals and associated applications for Employment Authorization Documents (EADs) and advance parole.

Q4. What does this recent court decision mean if I am:

A4.

A current DACA recipient: If you currently have DACA and your work authorization has not expired, your DACA is still in effect, and you are eligible to request renewal at the appropriate time under the final rule, effective Oct. 31, 2022. Neither the court decision nor the final rule affect the validity period of current grants of DACA, related work authorization, or advance parole.
A renewal DACA requestor: Individuals requesting DACA as a renewal may continue to submit DACA renewal requests. USCIS will continue to process and issue a decision on your renewal DACA request, under the policies and procedures laid out in the final rule, effective Oct. 31, 2022.
An initial DACA requestor: While USCIS will accept your initial DACA request, we are prohibited from granting initial requests or an accompanying application for employment authorization while the order from the U.S. District Court for the Southern District of Texas is in effect. If you have an initial DACA request pending, your request is on hold while the court orders are in effect.

For more information about submitting initial DACA requests or renewal DACA requests, see additional questions and answers below.

Q5. What is considered an “initial” DACA request?

A5. An initial request for DACA includes:

A first-time request for DACA;
A request filed by an individual who was previously granted DACA but did not request renewal within one year of the expiration; or
A request filed by an individual whose most recent DACA grant was terminated.

Q6. What is considered a “renewal” DACA request?

A6. A renewal DACA request includes:

A request filed by an individual with a current DACA grant; or
A request filed by an individual within one year of the expiration of their prior DACA grant.

Q7. What does this mean if I have an initial DACA request currently pending with USCIS?

A7. USCIS is not allowed to approve initial DACA requests or accompanying applications for employment authorization while the order from U.S. District Court for the Southern District of Texas is in effect. If you have an initial DACA request pending with USCIS, your request will remain on hold to comply with the court orders. At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending, though under the July 16, 2021 court order, which was extended by the Oct. 14, 2022 district court order to the DACA Final Rule, USCIS is not able to grant the requests that are on hold. Because these cases will remain on hold while the court orders are in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court orders are in effect.

USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.

Q8. How will the Fifth Circuit decision and the Oct. 14, 2022 district court decision affect the processing times for DACA requests?

A8. At this time, USCIS cannot predict the effect these orders may have on processing times for initial DACA requests, as DHS is prohibited from approving initial requests or accompanying applications for employment authorization under the court orders. However, we maintain our goal of processing DACA renewal requests generally within 120 days and are committed to minimizing any processing delays for renewal requests. If your DACA renewal request has been pending more than 105 days, you may submit an inquiry online about the status of your renewal request.

Please Note: Factors that may affect the timely processing of your DACA renewal request include, but are not limited to:

Failure to appear at an Application Support Center for a scheduled biometrics appointment to obtain fingerprints and photographs. If you do not appear or you reschedule your appointment, it will increase the processing time for your request;
Issues of national security, criminality or public safety discovered during the background check process that require further vetting;
Issues of travel abroad that need additional evidence or clarification;
Name or date of birth discrepancies that may require additional evidence or clarification; or
An incomplete renewal submission or a submission with evidence that suggests a requestor may not satisfy the DACA renewal guidelines, and USCIS must send a request for additional evidence or explanation.

Q9. I have another type of immigration benefit application or petition pending in addition to my DACA request. Do the court orders affect my other benefit application or petition?

A9. No. While the court orders prohibit USCIS from granting initial DACA requests after July 16, 2021, and their accompanying requests for employment authorization, they do not affect applications, petitions, or requests for other immigration benefits.

Initials

Q10. If I submit an initial DACA request on or after July 16, 2021, what will happen to my DACA request?

A10. USCIS is continuing to accept initial DACA requests. If you file an initial DACA request with USCIS on or after July 16, 2021, you will receive a receipt notice, and USCIS will process your payment. However, USCIS will not adjudicate your request while the court orders are in effect.

Q11. If I received a receipt notice for my initial DACA request, does that mean I was granted DACA?

A11. No. A receipt notice demonstrates that USCIS has received your initial DACA request. It does not indicate that we have approved your request.

Q12. I completed biometrics for my initial DACA request on July 16, 2021. What will happen to my DACA request?

A12. USCIS will hold your pending initial DACA request and will not issue a decision while the court orders are in effect.

Q13. I filed an initial DACA request and am scheduled for a biometrics appointment after July 16, 2021. What should I do?

A13. As a result of the July 2021 court order, we have cancelled all biometrics appointments for initial DACA requestors. If you have a biometrics appointment scheduled for after July 16, 2021, for an initial DACA request, you should not go to the appointment. Please see our DACA webpage for additional details. A cancelled biometrics appointment does not mean that we have denied your DACA request or that we will deny it in the future.

Q14. Will USCIS issue me a refund if I have filed an initial DACA request?

A14. At this time, USCIS is not issuing refunds for pending initial DACA requests that remain on hold while the court orders are in effect.

USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.

Q15. I received a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) for my initial DACA request and that RFE or NOID is still pending. What should I do?

A15. Although USCIS is prohibited from granting your initial request due to the court order, you may respond to the RFE or NOID within the requested time frame. Ensuring your filing is complete will help USCIS to make a timely decision in your case if USCIS is allowed to resume adjudication of initial DACA requests in the future.

Renewals

Q16. I currently have DACA and it is about to expire. Can I file for a renewal?

A16. Yes. Effective Oct. 31, 2022, USCIS is accepting and adjudicating renewal requests under the final rule. The court orders have not affected or changed the filing process for DACA renewals. If there is a change to the effectiveness or scope of the court orders, USCIS will publish revised information.

Q17. Should I renew early?

A17. USCIS strongly encourages DACA recipients to file their renewal requests 120 to 150 days (4 to 5 months) before their current DACA validity period expires.

Q18. Is there a chance USCIS will stop accepting DACA renewals in the future?

A18. Effective Oct. 31, 2022, USCIS is accepting and adjudicating renewal requests under the final rule. At this time, the court orders have not affected the filing process for DACA renewals. Future court orders may affect USCIS’s ability to accept and approve DACA renewal requests. If that changes, USCIS will publish revised information.

Q19. I had DACA and it expired within the last 12 months. Am I eligible to renew?

A19. If you file after your most recent DACA period expired, but within one year of its expiration, a new request is considered a renewal request, not an initial request under preexisting policy and you may submit a request to renew your DACA. The court orders have not disturbed the filing process for DACA renewals.

Q20. If it has been more than one year since my last grant of DACA expired, can I still apply for renewal?

A20. If you submit a DACA request more than one year since your last grant of DACA expired or after your most recent DACA grant was terminated (at any time), your request is considered an initial request, not a renewal, under preexisting USCIS policy.

USCIS can accept initial DACA requests, but we are not allowed to approve them while the court orders are in effect. We will issue you a receipt notice, and we will accept your payment. However, in compliance with the court orders we will not further process your request while the court orders are in effect.

Q21. I filed a timely DACA renewal request. It is still pending, and my prior DACA grant has expired. Is my pending DACA request still valid, and will it, along with my application for employment authorization, be processed?

A21. Yes, USCIS will continue to process timely filed DACA renewal requests and associated employment authorization applications. If that changes, USCIS will publish revised information.

However, please note that consistent with long-standing DACA policy, if your DACA expires before USCIS approves your renewal request, you do not have DACA for the period between the expiration of your prior DACA and the start of your new period of DACA.

Q22. I filed a DACA renewal request and am scheduled for biometrics after July 16, 2021. What should I do?

A22. You should attend your scheduled biometrics appointment and proceed with the DACA renewal process.

Advance Parole

Q23. Is advance parole open for DACA recipients right now? Can I apply for advance parole?

A23. Yes. USCIS will continue to accept and adjudicate applications for advance parole for current DACA recipients.

Q24. My advance parole application is still pending. Will USCIS process it?

A24. Yes, at the present time the court orders allow USCIS to continue to process applications for advance parole for current DACA recipients. If that changes, USCIS will provide updated information.

Q25. I was approved for advance parole. How does the Southern District of Texas decision affect me?

A25. If we have approved your application for advance parole, the orders from the U.S. District Court for the Southern District of Texas and the Fifth Circuit Court of Appeals do not affect that approval. Please note, all individuals returning to the United States are still subject to immigration inspection at a port of entry.

Q26. I have DACA and am currently outside the United States using advance parole. Can I still return to the United States using my advance parole under DACA?

A26. Yes, if you currently have DACA and are outside the United States using advance parole, you may return to the United States using your advance parole under the same conditions that were in effect before the orders from the U.S. District Court for the Southern District of Texas and the Fifth Circuit Court of Appeals. Please note, all individuals returning to the United States are still subject to immigration inspection at a port of entry.

Q27. I filed an advance parole application and am scheduled for biometrics after July 16, 2021. What should I do?

A27. You should attend your biometrics appointment and proceed with the advance parole application process.

Q28. I have DACA and I need to travel abroad for emergency reasons now. What should I do?

A28. If you currently have DACA, you may apply for advance parole. If you are experiencing an extremely urgent situation, you may request an emergency advance parole appointment at your local field office through the USCIS Contact Center. You should bring the following items to your appointment:

A completed and signed Form I-131, Application for Travel Document;
The correct Form I-131 filing fee;
Evidence to support the emergency request (for example, medical documentation, death certificate, etc.); and
Two passport-style photos.

For more information, please see the DACA Frequently Asked Questions.

Employers

Q29. What should I do if my current or new employee is a DACA recipient?

A29. The Fifth Circuit Court of Appeals preserved the partial stay from the July 16, 2021 U.S. District Court from the Southern District of Texas order, and on Oct. 14, 2022, the district court extended its injunction and partial stay to the DACA Final Rule, so these recent court orders do not disturb the grant of deferred action or the validity of work authorization for current DACA recipients. USCIS will also continue to adjudicate requests for DACA renewal and associated applications for employment authorization. USCIS will also continue to accept and adjudicate applications for replacement EADs. Your current and new employees with DACA may continue to receive valid EADs after the date of the court orders.

No action is required for current employees who are DACA recipients who have presented valid EADs. The U.S. Department of Justice has issued guidance for DACA recipients and their employers that also clarifies this. Neither the litigation nor the implementation date of the final DACA rule on Oct. 31 affect current valid grants of DACA or related employment authorization.

New employees who are DACA recipients and who present valid EADs are also authorized to work. See I-9 Central for more information on completing Form I-9 for new employees as well as additional employment authorization documents DACA recipients may present.

The court decisions are not a basis to ask any employee to show more or different documentation to verify or reverify their employment authorization on Form I-9.

If you participate in E-Verify, the system can confirm identity and employment eligibility for new employees who are DACA recipients with a valid and unexpired EAD.

For information about the rights of employees, please see the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section’s information on employee rights.

Last Reviewed/Updated:

11/03/2022