Despite more than a decade of political and legal attacks, nearly 600,000 people are still receiving the benefits of the Deferred Action for Childhood Arrivals program, renewing their DACA designations in two-year increments.
The program’s future, however, remains clouded.
The Obama administration established DACA in 2012 as a “temporary stopgap measure†to allow Dreamers — immigrants brought to this country without authorization before they turned 16 — to work, travel and get higher education legally. It was never meant to be a path to citizenship or a permanent fix.
The program initially protected more than 800,000 immigrants brought to the U.S. prior to June 15, 2007. That number has dwindled as many have either failed to renew their applications or adjusted their status in other ways, such as by marrying a U.S. citizen. Some have voluntarily left the country in favor of places that can grant them permanent citizenship.
Here’s a breakdown of where things stand, what the program currently offers, and what might happen in the future.
DACA’s current legal troubles
The Supreme Court appeared to rescue DACA in 2020, ruling that the Trump administration had violated federal procedural rules when it ordered the program terminated in 2017. But a year later, U.S. District Judge Andrew S. Hanen in Houston ruled against the program, declaring that the Department of Homeland Security memorandum that created DACA had exceeded its authority and violated federal procedural rules.
Hanen allowed the government to continue the program for current enrollees, but not to sign up any new ones. That remains the status quo.
Last year, the 5th Circuit Court of Appeals upheld Hanen’s ruling. But the panel sent the case back to his court to consider a new DACA rule issued by the Biden administration in August 2022.
On Sept. 13, , Hanen once again ruled that DACA is unlawful, as most legal analysts expected he would. Also as expected, he put his order on hold for all current DACA recipients, meaning that their benefits will continue with no change pending further litigation. The case is likely to once again be appealed to the 5th Circuit and ultimately to the Supreme Court.
What does that mean for DACA recipients right now?
Under the Biden administration’s rule, which currently governs the program, existing recipients can apply to renew their DACA status every two years, paying a $495 filing fee each time. The fee includes the cost of fingerprinting, a background check and a work permit.
The rule makes clear that expunged convictions, juvenile delinquency adjudications and convictions under state laws for immigration-related offenses don’t disqualify a person from DACA.
“It gives them enough security to think about from now until 2025, is the bottom line,†said Jennie Murray, president and CEO of the National Immigration Forum, a nonprofit that advocates for immigration reform.
In addition to allowing recipients to work legally, DACA also allows people to obtain advance parole under certain circumstances, which means they can travel legally to other countries and do not need to obtain a visa to return to the U.S.
DACA recipients can request advance parole only when traveling for employment, humanitarian or education reasons.
Examples of humanitarian reasons include traveling to obtain medical treatment, attending funeral services for a family member or visiting a sick or elderly relative, according to Monica Andrade, manager of state policy for the Presidents’ Alliance on Higher Education and Immigration.
Examples of employment reasons include overseas assignments, interviews, conferences and training.
“As of July 2023, it is taking approximately 4 to 8 months for [U.S. Citizenship and Immigration Services] to process a mailed advance parole application, but if a DACA recipient needs to travel urgently for humanitarian reasons, they can apply for emergency advance parole in person at their local USCIS field office,†she said.
Obtaining advance parole doesn’t guarantee a DACA recipient will be able to get back into the country, however. The decision to allow someone to physically enter the U.S. is up to the discretion of the U.S. Customs and Border Protection office at a port of entry, Andrade said.
The Presidents’ Alliance on Higher Education and Immigration, which has an online guide detailing how to apply for advance parole, lists other factors that could make it harder for DACA recipients to reenter the country, including:
- Traveling outside the parole date authorized by the advance parole document
- Traveling with an expired DACA authorization (the expiration date can be found on the employment authorization document)
- Having a prior deportation or “voluntary departure†order
- Having spent multiple prior periods unlawfully present in the U.S.
- Having a record of contacts with the criminal system — whether they resulted in a conviction or not — that could lead to an “inadmissibility†finding
Andrade and Marissa Montes, director of the Loyola Immigrant Justice Clinic, advise that recipients consult with an immigration attorney about the risk factors that apply to them if they decide to apply for advance parole.
If a DACA recipient hasn’t already done a full immigration consultation, Montes added, they should.
“Go check in and consult with an immigration attorney every now and then to see if something’s happened, changed or maybe you’ve never actually done a full consultation.... You [could find out you] might qualify for something,†she said.
For example, she’s had some clients find opportunities for employment-based visas — every case is unique.
A full consultation could cost from $100 to $150, but Montes said there are legal firms and clinics that provide services at free or low-cost. The Loyola Immigrant Justice Clinic, for example, offers free consultations twice a month.
If you’re looking for an attorney, Montes advises you search for one on the California State Bar website. All of an attorney’s practice information is there, along with information on whether the attorney has been sanctioned, disciplined or disbarred.
“I always tell people that shopping for an attorney is like shopping for a doctor — you should just go for someone that gives you a good vibe and that you can connect with,†she said.
What can happen to DACA in the future?
DACA being in limbo frustrates recipients, advocates, and immigration attorneys, Montes said.
“I don’t know if there’s anything that can necessarily be done to alleviate that sense of uncertainty,†she added.
Murray of the National Immigration Forum cited two major sources of trepidation among DACA supporters.
One is the statement by House Speaker Kevin McCarthy (R-Bakersfield) that House Republicans no longer want to include a solution for Dreamers in legislation to beef up border security. They’re willing to address the two issues in parallel, she said, but they don’t want the bills to be combined.
The other thing, Murray said, is the number of Dreamers (including those who aren’t DACA recipients). The Migration Policy Institute estimates that as of 2022, more than 1 million individuals would be eligible to participate in DACA, based on the original criteria.
That’s a sticking point for any legislative action because it raises questions about how many individuals a program would cover and what criteria would apply.
“But what we continue to urge Congress is to look at all the 600,000 [DACA recipients] that we have already protected that are incredible contributing parts of our society, and we have no reason to believe that the whole 1 million folks wouldn’t be the exact same contributors that are already established in our communities,†Murray said.
Even if DACA is ultimately ruled unlawful, Murray said, she doesn’t think the courts would order DACA recipients to be summarily removed from the country, “even in areas where we have the most difficult rhetoric.†But she is worried that the recipients’ work permits would become void, rendering them unable to work legally in the U.S.
For now, DACA recipients should stay informed and seek legal guidance when necessary, legal experts and immigrant advocates advise.
“One thing that we all have, as people of color who come from low-income communities or immigrant backgrounds, is that we’re resilient,†Montes said she tells her students.
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