Court of Appeals Remands DACA for Consideration of New Rule; Stay Remains in Place

On October 5, 2022, the Fifth Circuit Court of Appeals partially upheld a July 2021 district court decision finding that the original DACA program (established in 2012) was unlawful; however, the Fifth Circuit sent the case back for the district court to consider the Department of Homeland Security’s new 2022 DACA regulation, set to take effect at the end of this month. As a result of this ruling, existing DACA recipients retain their grant of DACA and are allowed to reapply for (and receive) renewal, but the government cannot grant new DACA applications. The Fifth Circuit reasoned that a district court is in the best position to review the administrative record in the rulemaking proceeding and to determine whether the court’s holdings as to the 2012 DACA memorandum fully resolve issues concerning the 2022 final rule. USCIS will continue to accept and process DACA renewal requests, and continue to accept but not process initial DACA requests.

The court ruling does not affect ICE’s enforcement policies. Like the earlier district court ruling, the appeals court ruling does not require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.

Reminders for DACA Recipients and Employers:

• DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.

• Workers who already have DACA can continue to renew their DACA EADs.

• DACA recipients are not required to tell employers they have DACA.

• Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.

• Federal laws such as the Immigration and Nationality Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 protect employees from employment discrimination based on several factors, including their citizenship, immigration status, national origin, and race. State and local laws may offer additional protections to workers.

• Firing employees who have the legal right to work, such as DACA recipients with EADs, based on their immigration status, national origin, or assumptions about these characteristics may violate federal, state, or local law.

This remand heightens the urgency for Congress to act immediately and protect Dreamers permanently.

Citizenship Paths For Dreamers, Farmworkers Pass House; Future in Senate Uncertain (Mar. 19, 2021)

On Thursday, House Democrats passed a pair of bills that would create a pathway to citizenship for Dreamers and some migrant farm workers, taking a gradual approach compared to President Biden’s major immigration package. The Dream and Promise Act would provide certainty to undocumented people brought to the U.S. as children whose ability to go to school, get work and even remain in the country has hung in the balance from administration to administration. The bill would also allow those with Temporary Protected Status (TPS) to apply for citizenship, a group from countries around the world that ranges from those fleeing civil unrest and natural disasters as early as the 1990s to Venezuelans deemed eligible for the status by the Biden administration earlier this month. In total, the Dream and Promise Act would help naturalize nearly 4.5 million people.

The House on Thursday also approved legislation that provides a citizenship pathway for seasonal migrant farmworkers, allowing those who have been traveling to the U.S. for work for a decade to apply for citizenship after another four years. 

That bill, which passed 247-174, is expected to provide citizenship to more than a million migrants, and it also ups the number of agricultural visas available to those seeking to come to the U.S. for work.

Both face an uncertain future in the Senate, where Republicans continue to push for increased border security as a condition for action on bills benefiting Dreamers and others.

Though the two bills together would provide a substantial number of noncitizens with the ability to naturalize, it falls short of the 11 million figure that would be covered by the U.S. Citizenship Act of 2021, a major immigration package pushed by Biden.

Though the White House issued statements of support for both bills, it also urged the passing of Biden’s bill, stressing the need “to reform other aspects of our immigration system.”