Post-shutdown, while Congress debates immigration and the future of the “Dreamers,” the litigation over the legality of President Donald Trump’s rescission of DACA is speeding up. The U.S. Supreme Court accepted the request for an expedited review of the Administration’s petition for certiorari and has set February 2, 2018, as the date when briefs must be submitted.

In September 2017, just after the rescission was announced, close to 20 states and the District of Columbia filed lawsuits challenging the rescission. In January, a federal judge in San Francisco, William Alsup, issued a nationwide injunction, ruling that DACA must remain in place while litigation over the legality of the President’s decision to wind down the program is pending. This opened a window for DACA beneficiaries whose applications for renewal had been barred by the rescission.

In light of the court order, USCIS issued the following guidance on January 13, 2018:

  • Individuals who were previously granted deferred action under DACA may apply for renewal.
  • Individuals whose DACA expired on or after September 5, 2016, may apply for renewal.
  • Individuals whose DACA expired before September 5, 2016, or whose DACA was previously terminated cannot submit renewal applications, but may submit initial DACA request applications.
  • USCIS will not accept applications from people who have never been granted DACA protection in the past.
  • USCIS will not accept or approve applications for Advance Parole from DACA beneficiaries (and those who currently have Advance Parole may not want to risk international travel at this time).

Congressional leadership has set a February 8, 2018, deadline for coming up with a possible solution for DACA.

Due to the current uncertainty, DACA beneficiaries should consider taking advantage of what might be a brief “window of opportunity” and file for renewals or initial applications where possible. If no permanent solution for DACA is found, only a minority of DACA beneficiaries likely will have other options for remaining in the U.S. and retaining work authorization. There may be family or employment-based avenues to permanent residence, but what options might be available is a complex and fact-specific determination.