On July 28, 2020, the U.S. Department of Homeland Security’s (DHS) Acting Secretary Chad Wolf issued a memorandum titled “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children’” to announce its policy following the Supreme Court’s DACA decision.

On June 18, 2020, the Supreme Court invalidated the Trump administration’s attempt to terminate the DACA program. The Court held that while DHS has the authority to rescind DACA, it had not followed the proper procedures in its attempt to do so, thus violating the Administrative Procedure Act (APA).

Thus, the memorandum states that DHS is rescinding the 2017 and 2018 memoranda that were found to violate the APA. The memorandum further explains the immediate interim changes to DACA policy that will be in effect while the Acting Secretary determines “how to address DACA in light of the Supreme Court’s decision.”

Effective immediately, USCIS personnel will be taking the following policy changes with respect to all pending and future DACA and advance parole requests:

  • Rejecting all initial DACA requests and associated applications for Employment Authorization Documents (EADs);
  • Rejecting all pending and future Form I-131 applications for advance parole from DACA beneficiaries, absent exceptional circumstances; and
  • Limiting the validity period of renewal of deferred action and accompanying work authorization granted pursuant to DACA to one year, rather than two.

The memorandum further states that DHS will refund all associated fees, without prejudice, should DHS begin accepting initial requests for DACA in the future.

DHS will continue to adjudicate all pending and future properly submitted DACA renewal requests and associated applications for EADs from current DACA beneficiaries. In other words, anyone who has previously held DACA and continues to meet the DACA eligibility requirements may apply to renew; USCIS policy on renewals remains unchanged by the Supreme Court’s decision.

Lastly, DHS will continue to comply with the information-sharing policy as set forth in USCIS’s Form I-821D instructions; the memorandum does not change that policy.

ILBSG will continue to update our clients as further guidance is issued. For specific questions, please reach out to an ILBSG attorney today.

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