USCIS issuing “recall” on three-year DACA approvals, to replace with two-year DACA approvals

If the usual approval period for DACA is two years, why did some people get DACA approvals for 3 years?

On Thursday, November 20, 2014, President Obama announced the steps his administration would take to fix the U.S. immigration system. Some of those fixes included updates to and an expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program, as well as creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

Based on the November 20, 2014 announcement, USCIS began to issue DACA and work authorizations in three-year increments rather than the two-year increments it had previously been issuing. According to the Department of Justice, approximately 100,000 individuals received three-year approvals.

Why is the DAPA lawsuit affecting my DACA approval?

On February 16, 2015, a Federal Judge for a District Court in Texas granted a request for a temporary injunction against the implementation of DAPA and the expansion of DACA. (See here for more information). The injunction has effectively halted their implementation. Although the injunction does not affect DACA under the 2012 guidelines, USCIS interpreted the injunction to preclude any further approvals of DACA for three (instead of two) years, and stopped issuing three-year approvals.

Why is my three-year DACA approval being changed to a two-year approval?

Very recently, individuals who received work permits and DACA approvals for three-year terms began receiving notices from USCIS informing them that their approvals should have only been for two years. USCIS has also informed these individuals that they will receive a new employment authorization card (EAD) in the mail; once they do, they must return via mail to USCIS their three-year DACA and work authorization approval notices as well as their three-year employment authorization card.

This change in the amount of approval time has become an issue in the pending lawsuit in Texas on DACA expansion and DAPA. On March 3, 2015, the Department of Justice informed the District Court hearing the lawsuit that it had been issuing three-year approvals for DACAs approved under the 2012 guidance. The Department of Justice contends that the three-year approvals were consistent with the 2012 DACA guidance, which is not being questioned by the current injunction, and USCIS was therefore authorized to issue three-year approvals.

What is currently happening with the lawsuit?

Following the Texas District Court’s injunction on February 17, which has prevented USCIS from implementing DACA expansion and DAPA, the Department of Justice appealed the decision to the Fifth U.S. Circuit Court of Appeals. The Fifth Circuit heard arguments on April 7, and has not yet decided whether it will lift the injunction and allow USCIS to begin accepting applications for DACA expansion and DAPA. In the meantime, the underlying lawsuit—whether President Obama and USCIS can implement the DACA expansion and DAPA programs—remains pending. At the moment, there is no clear timeline on when these issues will be resolved.

If you have any questions about how these new actions affect your case, or whether you or a loved one may be eligible for DACA, DACA expansion, or DAPA, please contact an attorney at Minsky, McCormick and Hallagan, P.C.