Deferred Action for Childhood Arrivals (“DACA”)

DACA History and Federal Court Litigation

On 15 June 2012, the Department of Homeland Security (“DHS”) issued a memorandum creating the Deferred Action for Childhood Arrivals (“DACA”) program. The DACA program authorizes DHS to exercise prosecutorial discretion for children’s immigration violations.

From 2016 through 2020, the DACA program led to substantial litigation in the U.S. federal court system. On 16 July 2021, a Texas federal trial court vacated the 15 June 2012 DHS memo. The court enjoined DHS from administering the DACA program until DHS complies with the Administrative Procedure Act. The federal court authorized DHS to continue accepting DACA applications but prohibited DHS from approving DACA status for new applicants. According to the court’s order, DHS may continue administering the program for applicants who received DACA approval before or on 16 July 2021. Similarly, DHS may continue processing renewal applications for DACA beneficiaries who received initial approval before 16 July 2021. The federal court noted that its order does not require DHS or USCIS to “terminate DACA status” for any currently approved DACA beneficiary. See Texas v. U.S.A., Case No. 1:18-CV-00068 (S.D. Texas July 16, 2021).

In response to the Texas federal court’s injunction, DHS published a proposed rule for the DACA program in the federal register. See 86 Fed. Reg. 53736 (Sept. 28, 2021).

DACA Criteria Pursuant to the 15 June 2012 DHS Memo

To obtain DACA relief, USCIS requires that a foreign national prove that she or he:

  • arrived in the United States under age 16,
  • continuously resided in the U.S. for at least 5 years before 15 June 2012,
  • was present in the United States on 15 June 2012,
  • graduated from high school, obtained a general education development certificate (“GED”), is currently in school, or received an honorable discharge from the Coast Guard or U.S. armed forces,
  • has no convictions for a felony offense, a significant misdemeanor, multiple misdemeanor offenses, or pose a threat to U.S. national security or public safety,
  • was under age 31 on 15 June 2012, and
  • had no lawful immigration status on 15 June 2012. 

DACA recipients may apply for work authorization (I-765 and I-765WS Forms) and advance parole (I-131 Form). After filing the DACA application, USCIS will request a biometrics appointment. DACA applicants must also pass a background check.

DACA Filing Fees & Fee Exemption

USCIS charges $495.00 for a foreign national to file a DACA application (I-821D Form). The $495.00 USCIS fee covers biometrics and the I-765 Form for employment authorization. A DACA applicant may apply for an exemption from the fee for the I-765 Form before filing the I-821D Form if she or he proves the serious circumstances required for fee exemption.