DACA Program Updates: Court Rulings and Renewal Status

The Deferred Action for Childhood Arrivals program has spent more than a decade in legal uncertainty, with federal courts repeatedly weighing whether the program is lawfully constituted. As of 2024, DACA continues to exist in a restricted form - current recipients can renew their status, but no new initial applications are being processed for applicants who have never held DACA before. That split status is the direct result of ongoing federal litigation centered in the Fifth Circuit Court of Appeals and the Southern District of Texas.

Understanding where the program stands requires tracing the court decisions that have shaped it, knowing what USCIS is currently authorized to do, and recognizing that the program’s long-term future remains tied to judicial proceedings that are still unresolved. This article outlines the current legal posture of DACA, renewal procedures for existing recipients, and the regulatory framework USCIS published in 2022.

The central legal challenge to DACA originates from Texas v. United States, a lawsuit filed by Texas and several other states in the Southern District of Texas. In July 2021, U.S. District Judge Andrew Hanen ruled that DACA was unlawfully created because it was implemented without following the notice-and-comment rulemaking requirements of the Administrative Procedure Act. Judge Hanen vacated the program but stayed his ruling for existing recipients, meaning those already enrolled could continue renewing their status while the case moved through appeals.

The Fifth Circuit Court of Appeals largely affirmed Hanen’s ruling in October 2022, agreeing that the original 2012 DACA policy was procedurally defective. However, the Fifth Circuit remanded the case back to the district court to evaluate a new DACA rule that the Biden administration had published in the Federal Register on October 31, 2022 (87 Fed. Reg. 53152). That regulation, which took effect on October 31, 2022, attempted to codify DACA through formal rulemaking and address the procedural defects identified by the courts. In September 2023, Judge Hanen ruled that the 2022 final rule was also unlawful, again vacating DACA but continuing to stay his order as to existing recipients. The case is now back before the Fifth Circuit for further review of the 2022 rule.

The Supreme Court previously touched DACA in Department of Homeland Security v. Regents of the University of California (2020), ruling 5-4 that the Trump administration’s attempt to rescind DACA in 2017 was “arbitrary and capricious” under the APA. That ruling did not decide whether DACA itself was lawfully created - it only held that the rescission was procedurally flawed. That distinction matters because the current litigation directly challenges the program’s original legal foundation, a question the Supreme Court has not yet definitively resolved.

What USCIS Is Currently Accepting and Processing

USCIS is currently accepting renewal applications from individuals who have previously received DACA. Renewals are filed using Form I-821D (Consideration of Deferred Action for Childhood Arrivals) along with Form I-765 (Application for Employment Authorization) and Form I-765WS (the accompanying worksheet). The filing fee for Form I-765 is $495 for most applicants, though fee waiver requests are no longer available for DACA filings as of the 2024 USCIS fee schedule update, which took effect April 1, 2024.

USCIS is not accepting or processing initial DACA requests from first-time applicants. This restriction has been in place since Judge Hanen’s 2021 ruling. Any individual who has never previously held DACA - even if they otherwise meet every eligibility criterion - cannot obtain protection under the program in its current court-ordered posture. USCIS has confirmed this position on its website and has not deviated from it since the Fifth Circuit’s 2022 ruling.

Processing times for DACA renewals have varied significantly. As of early 2024, USCIS reported processing times ranging from several months to over a year for some field offices and lockbox facilities. USCIS recommends filing renewal applications 150 to 120 days before the current DACA and employment authorization expire. Recipients whose EADs expire before their renewal is processed may be eligible for an automatic extension period, but that eligibility depends on specific filing conditions and the category on the EAD card.

Eligibility Requirements and the 2022 Final Rule

The 2022 DACA final rule preserved the same core eligibility requirements that existed under the original 2012 memorandum. To qualify, an individual must have come to the United States before their 16th birthday, must have continuously resided in the U.S. since June 15, 2007, and must have been physically present in the U.S. on June 15, 2012, and at the time of filing. Applicants must also have been under the age of 31 as of June 15, 2012, and must not have been over the age of 30 at the time of their initial application.

Additional requirements include having no conviction for a felony, a significant misdemeanor, or three or more misdemeanors, and not posing a threat to national security or public safety. The 2022 rule defines “significant misdemeanor” consistently with prior USCIS policy guidance, including offenses such as domestic violence, sexual abuse, burglary, and any offense for which the individual was sentenced to more than 90 days in custody. A single misdemeanor with a sentence of 90 days or less does not automatically render an applicant ineligible, though USCIS retains discretion in all cases.

The 2022 rule also clarified that DACA does not confer lawful immigration status. A DACA recipient is considered to be in a period of “deferred action,” meaning DHS has temporarily declined to pursue removal, but the person remains without lawful status under the Immigration and Nationality Act. This distinction has practical consequences: DACA alone does not make a recipient eligible for federal financial aid under the Higher Education Act, though some states have enacted their own laws extending state-funded financial aid to DACA recipients.

Practical Steps for Current Recipients

DACA recipients should track their current expiration dates carefully and plan to file renewal packages well in advance of the 150-day recommended window. Given the unpredictable processing times at USCIS lockbox facilities and service centers, filing earlier rather than later reduces the risk of a gap in employment authorization. Applications should be mailed to the USCIS lockbox in Phoenix, Arizona, or submitted through the address currently specified on the Form I-821D instructions, which USCIS updates periodically.

Recipients should also retain copies of all previously approved I-797 approval notices, Employment Authorization Documents, and any Advance Parole travel documents ever issued. These records establish the history of the recipient’s DACA grants and can be important in any future immigration proceedings or if USCIS requests evidence of prior approvals during a renewal review. Advance Parole for DACA recipients - filed on Form I-131 - remains technically available but has been subject to processing delays, and travel outside the U.S. without an approved Advance Parole document can have serious consequences for a recipient’s immigration situation.

Monitoring the Fifth Circuit proceedings is also practical. If the appellate court upholds Judge Hanen’s 2023 ruling that the 2022 final rule is unlawful, the case may return to the Supreme Court. A ruling against DACA at the appellate level without a stay could affect even current recipients. Several immigration advocacy organizations, including the National Immigration Law Center, publish updates on case filings and court dates as they occur.

Where DACA Stands Now

The program’s survival in any form currently depends on a federal stay that protects existing recipients while litigation continues. That stay is not permanent - it is a judicial accommodation that courts can modify. The next significant development will be the Fifth Circuit’s ruling on whether the Biden administration’s 2022 final rule cured the procedural defects identified in earlier decisions.

Congress has not passed legislation codifying DACA protections despite multiple attempts, including the American Dream and Promise Act, which passed the House in 2021 but did not receive a Senate vote. As of the date of this writing, no comprehensive DACA legislation is advancing in either chamber. USCIS continues to process renewals under the court-ordered status quo, and DACA recipients whose applications are currently pending can check their case status using the receipt number from their I-797 notice at uscis.gov/case-status.

This article provides general information only. Readers should consult a licensed immigration attorney for advice about their individual circumstances.