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DACA Texas Case: The Latest News on Texas v. U.S.

Contents

Overview

On July 16, 2021, Texas federal court Judge Hanen published his opinion on the DACA case, which challenged the legality of the DACA policy.* Judge Hanen’s opinion is that DACA is not a lawful policy, but for now will allow those with existing DACA to continue to renew. First-time DACA requests will NOT be processed at this time.

*This was something the Supreme Court did not rule on back in June 2020

What does this recent court decision mean if I:
Am a current DACA recipient: If you currently have DACA and your work authorization has not expired, your DACA and EAD are still in effect, and you are eligible to request renewal when the time comes. If you have applied for advance parole, it will be processed. If you have been granted advance parole, it will still be respected, however, we recommend that you consult with an immigration attorney or DOJ-accredited representative before traveling abroad.

Requested my DACA renewal: If you requested your DACA renewal or need to in the foreseeable future, it will continue to be processed. USCIS will continue to process and issue a decision on your DACA renewal request.

Filed my first-time DACA request: While USCIS will accept your initial DACA request, Judge Hanen’s order does not allow USCIS to process initial requests while the court order from the Southern District of Texas remains in effect. If you have an initial DACA request pending, your request is on hold while the court order remains in effect.

Had DACA, but it expired: If your DACA expired under a year ago, USCIS will still process your renewal request as a renewal. However, if your DACA expired over a year ago, while you may still file for DACA, it will be considered an initial– or new– DACA request, and thus while USCIS will accept it, it may not process it under the Texas court order.

What can we do now?
It’s important that Congress pass permanent solutions for people with or without DACA, TPS holders, farmworkers, essential workers, and our family members.

If you’re a DACA recipient, know that you are lawfully present in the U.S. and have rights.

Below we’ve adapted some USCIS’ FAQ on DACA:

General FAQ

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.

A renewal DACA request includes:

  • A request filed by an individual with a current DACA grant; or
  • A request filed by an individual who has a DACA grant that expired less than a year ago.

USCIS is not permitted to approve initial DACA requests while the court order from the Southern District of Texas remains in effect. If you have an initial DACA request pending with USCIS, your request will remain on hold in compliance with the court order.

At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending. Because these cases will remain on hold while the court order is in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court order is in effect.

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

USCIS’ goal is to process DACA renewal requests generally within 120 days. You may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry online, please visit egov.uscis.gov/e-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 (ASC) for a scheduled biometrics appointment to obtain fingerprints and photographs. No-shows or rescheduling appointments will require additional processing time;
  • 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/clarification;
  • Name/date of birth discrepancies that may require additional evidence/clarification; or
  • The renewal submission was incomplete or contained evidence that suggests a requestor may not satisfy the DACA renewal guidelines, and USCIS must send a request for additional evidence or explanation.

No, the court order does not affect your other applications, petitions, or requests for immigration benefits.

First-Time Requests (Initials)

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 process or make a decision on your request while the court order remains in effect.

If USCIS approved your initial DACA request on or before July 16, 2021, your case has not been affected by the Southern District of Texas ruling. Your approval notice and EAD may arrive after that date and be considered valid.

No. A receipt notice shows that USCIS received your DACA request. It does not mean that your request for DACA or your EAD is approved.

USCIS will hold your pending DACA request and will not issue a decision while the court order remains in effect.

As a result of the court order, all biometrics appointments for initial DACA requests are cancelled. If you have a biometrics appointment scheduled for after July 16, 2021 for an initial DACA request, USCIS says you should not go to the appointment. A cancelled biometrics appointment does not mean that your DACA request has been denied or that it will be denied in the future.

At this time, USCIS is not issuing refunds for pending initial DACA requests that remain on hold while the court order is in effect. This might change as the Southern District of Texas litigation continues.

Though USCIS is not currently processing initial DACA requests, it is recommended that you 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 permitted to resume adjudication of initial DACA requests in the future.

President Biden and DHS have made it clear that DACA recipients are not a priority for deportation. Even Judge Hanen said in his order that this court decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”

We recommend that you consult an immigration attorney or accredited representative if you believe you fall under an enforcement and removal priority category.

We will continue to fight in Congress for a pathway to citizenship for Dreamers.

Renewals

Yes. The court order did not change the filing process for DACA renewals. If this changes for any reason, USCIS will publish updated information to its site.

USCIS strongly encourages DACA recipients to file their renewal requests 120 to 150 days (four to five months) before the expiration of their current DACA validity period.

However, if you file before then, USCIS will accept your filing for processing, even if it holds it until 150 days prior to the date of expiration of your current DACA validity. 

USCIS does not have clear guidance on this, but from what we understand, USCIS will not reject a renewal filing before the 150-day mark, they will wait for the 150-day mark to begin processing the request.

At this time, the court order has not impacted the filing process for DACA renewals.

Yes, if your DACA has expired for less than a year, we encourage you to consider filing the renewal ASAP. If it’s been longer than a year, see the next question.

  • You will need to submit an initial (first-time) request for DACA if you let your DACA expire for more than 1 year.
  • USCIS can accept initial DACA requests, but it is prohibited from processing them while the Texas federal court order remains in effect.
  • You will be issued a receipt notice, and your payment will be accepted. However, the request will not be further processed, in compliance with the court order.

Yes, USCIS will continue to process DACA renewal requests.

However, if your DACA expires before USCIS approves your renewal request, you do not have DACA or employment authorization for the period between the expiration of your prior DACA and the start of your new period of DACA.

You should attend your scheduled biometrics appointment and proceed with the DACA renewal process. Not everyone is receiving biometrics appointments for renewals because USCIS may reuse biometrics previously submitted.

Advance Parole

Yes. USCIS will continue to accept and process applications for advance parole for current and renewal DACA recipients.

Yes, USCIS will continue processing advance parole applications for DACA renewal requestors.

If your application for advance parole has been approved, the order from the Southern District of Texas does not affect that approval. Please note, all individuals returning to the U.S. are still subject to immigration inspection at a port of entry. We encourage you to consult with an immigration attorney or DOJ-accredited representative before travel abroad.

Yes, if you currently have DACA and are abroad using advance parole, you may return to the U.S. using your advance parole under the same conditions that were in effect before the order from the Southern District of Texas. Please note, all individuals returning to the U.S. are still subject to immigration inspection at a port of entry.

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

  • 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.
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