Updated January 21, 2025
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Latest DACA development: On January 17, 2025, the Fifth Circuit Court of Appeals issued a decision holding that the Biden Administration’s 2022 DACA regulation providing employment authorization benefits to DACA recipients was unlawful. The decision continues to block the government from approving new DACA applications. DACA renewals may continue for now.
This advisory provides answers to questions about:
This advisory is not intended as legal advice but rather to provide information on the status of the DACA program. Individuals should seek a legal consultation from a qualified immigration attorney or DOJ accredited representative for a full assessment of their individual case. Please check our website or NIJC’s social media channels for future updates about DACA
The impact of Texas v. U.S. decision
1. What did the court decide in Texas v. U.S.?
On July 16, 2021, the Texas-based U.S. District Judge Andrew Hanen declared that the DACA program, implemented in 2012 through a policy memo, was illegal. He held that the statute did not authorize a DACA program with work authorization; and he found that, in any event, a program such as DACA could only potentially be allowable if it were established through formal regulations. However, he stayed (or delayed) his decision to allow current DACA recipients to renew their DACA status. This decision was appealed to the Fifth Circuit Court of Appeals. Meanwhile, the Biden administration published DACA regulations on August 30, 2022.
On October 5, 2022, the Fifth Circuit Court of Appeals agreed with Judge Hanen’s holding that DACA is illegal because the statute does not authorize the Department of Homeland Security to create such a program. However, the appellate court sent the case back to Judge Hanen (the district court) to consider the Biden administration’s DACA regulations. The appellate court agreed that a stay (or delay) of its decision remained appropriate. That allowed individuals with DACA to continue renewing their DACA benefits as the case was sent back to the district court.
On September 13, 2023, Judge Hanen issued the latest decision in this litigation. Judge Hanen declared that the DACA program, implemented through the DACA regulation, was illegal. Judge Hanen found that the DACA regulation did not remedy the substantive defects found by the District Court and the Fifth Circuit concerning the 2012 DACA Memo, which the courts previously held to be illegal. This decision was once again appealed to the Fifth Circuit.
On January 17, 2025, the Fifth Circuit Court of Appeals agreed with Judge Hanen. The Fifth Circuit affirmed the district court’s finding that part of the DACA regulation violates U.S. immigration laws by giving DACA recipients benefits not authorized by law. The Fifth Circuit found a forbearance only program (meaning one where DACA recipients are protected from removal but cannot receive employment authorization) may be permissible. While this is not the decision that we hoped for, the ruling does not immediately change things. The Fifth Circuit has stayed (“paused”) its ruling as to current DACA beneficiaries, pending another decision by the courts, allowing DACA renewals, including employment authorization, to continue.
2. What will happen next in Texas v. U.S.? Will it go to the Supreme Court?
The Department of Justice is now under control of the Trump administration, so it will most likely no longer defend the DACA program. However, the courts also permitted two groups to “intervene” to defend DACA: pro-DACA states, led by New Jersey, and several people with DACA. We therefore anticipate that the case will be further challenged, likely with a request for the Supreme Court to decide whether the DACA program – including forbearance and employment authorization – is legal. That process is likely to take many months – if not years – to reach resolution. It is unclear how long it will be possible to renew DACA applications. As such, we highly recommend that, if eligible, you submit your application to renew your DACA benefits as soon as possible.
The status of Biden’s DACA regulation
3. How does this most recent decision affect the Biden administration’s final regulation?
As discussed above, the Fifth Circuit upheld the finding that the DACA regulation was partly illegal. The appeals court distinguished between DACA’s protections from deportation (which it calls “forbearance”) and DACA’s benefits (most significantly, permission to work). It found that while DACA benefits are illegal, the DACA protection against removal is not. The “forbearance” policy remains in place and offers some protection against deportation. The forbearance policy is not nearly as useful as benefits, for most people, but it should reduce any risks from continuing to renew DACA while the appeal is in process. At present, DACA recipients should continue to receive employment authorization in addition to protection from removal since the Fifth Circuit’s decision finding employment authorization through DACA to be unlawful is stayed (paused).
Ultimately, the Fifth Circuit also continued to stay (“pause”) it ruling allowing current DACA beneficiaries the ability to renew, pending another ruling by the Fifth Circuit Court or the Supreme Court. The ultimate fate of the DACA regulation will be decided by either the court system or by the Trump administration if it takes steps to rescind the regulation in accordance with the law.
The status of DACA renewal and initial applications
4. I have a pending application for initial DACA benefits. How does the recent decision affect my pending application?
The government cannot process your initial DACA application. The processing of your application will remain on pause.
This pause will continue until either the litigation resolves (either in favor or against processing new DACA applications) or Congress passes legislation to protect DACA. Unfortunately, there is nothing to do on your case at this time.
If you have a pending initial DACA application at NIJC and you have further questions, please contact the phone number for the team handling your case. If NIJC is not representing you, please follow our social media channels or website for updated information regarding the status of the DACA program.
5. I am eligible for initial DACA, but never applied; what can I do right now?
If you have never had a legal consultation, we recommend that you speak to a licensed attorney or Department of Justice accredited representative to learn more about all of your possible options under our current immigration laws and policies. To schedule a consultation with our office, please call (312) 660-1370.
6. I have a pending application to renew my DACA benefits with USCIS. How does the latest decision affect my renewal?
The government will continue to adjudicate all properly filed DACA renewal requests. This is true so long as a judicial stay remains in place.
If your request has been pending for more than 105 days, you or your legal representative can submit a status inquiry via phone by calling 1-800-375-5283.
If that does not solve your case, you or your legal representative may wish to consider seeking congressional assistance. In Illinois, Senators Duckworth and Durbin each have the request process located on their congressional website.
7. My DACA has expired or is close to expiring; can I still apply to renew my DACA?
Yes. The government will continue to adjudicate all properly filed DACA renewal requests. This is true as long as a judicial stay remains in place. It is unknown how long the judicial stay will remain in place, so you should renew your DACA benefits as soon as possible.
If you currently have DACA or your DACA has been expired for less than one year, you can submit a DACA renewal application. You can register to attend one of NIJC’s upcoming, free DACA renewal clinics. We are updating the calendar frequently with new clinic offerings.
If your DACA expired more than one year ago or it was previously terminated, you must submit an initial DACA application. However, because of the court’s ruling, the governmentwill not beable to process your case due to the indefinite pause on all initial DACA applications. If you are in this position, please schedule a DACA consultation with NIJC by calling 312-660-1370.
The DACA and employment authorization renewal process
8. How much will it cost to apply for DACA benefits?
The cost to file your DACA application is $555.00 (online) or $605.00 (paper filing).
9. My DACA is expired; will USCIS refer my case to ICE for enforcement purposes (like detention or deportation proceedings)
In the past, current or former DACA recipients have not been enforcement priorities. Every new administration sets their own enforcement priorities. At this time, we are waiting for the Trump administration to publish its enforcement priorities. If the Department of Homeland Security were inclined to terminate DACA
protections, the regulations require that DHS give notice of that intent, and an opportunity to respond.
If your DACA is expired, we recommend that, if eligible, you apply to renew as soon as possible. You can register to attend one of NIJC’s upcoming, free DACA renewal clinics. We are updating the calendar frequently with new clinic offerings.
10. My work permit was lost, stolen or destroyed. Can I request a replacement?
If you are currently in a valid period of DACA, you may apply to replace a lost, stolen, or destroyed EAD/work permit by filing a new Form I-765 and paying the $555.00 (online) or $605.00 (paper) filing fee. If your DACA benefits have expired and you are within the timeframe to renew, you may seek to renew your DACA protection and, within that process, seek a new work permit. At present, DACA recipients should continue to receive employment authorization in addition to protection from removal since the Fifth Circuit’s decision finding employment authorization through DACA to be unlawful is stayed (paused).
11. Will DACA recipients still be able to apply for special permission to travel (“advance parole”)?
Yes, for the time being. You may qualify for advance parole if you currently have DACA and you can prove that your travel abroad is for employment, educational, or humanitarian purposes.
Traveling on advance parole may come with some risks. U.S. Customs and Border Protection retains the authority to refuse entry to an individual – even someone who has an approved advance parole document. As well, keep in mind there may be a subsequent court decision or Department of Homeland Security policy that affects a DACA recipient’s ability to apply for and travel on advance parole.
If you would like to explore advance parole, we strongly recommend that you schedule a consultation with a licensed attorney or DOJ recognized organization to see if advance parole is a safe and available option for you to pursue. To schedule a legal consultation with NIJC, please can call (312) 660-1370.
12. I have or had DACA but I also have another application for an immigration benefit pending with USCIS. How does this most recent update affect my pending application for other immigration benefits?
The government will continue to process your pending application for other immigration benefits. If you have a legal representative, speak to them about whether you are eligible for a work permit based on your pending application or whether you should renew your DACA benefits and seek a work permit via those means.
There may be other reasons to maintain DACA benefits, even as you seek other immigration status. For example, it is possible future laws will recognize people with DACA as eligible for permanent status, or the other immigration status you seek may not be certain, in which case retaining DACA may be advantageous. To discuss this further, we recommend that you schedule a consultation with a licensed attorney or DOJ recognized organization. To schedule a legal consultation with NIJC, individuals can call 312-660-1370.
13. Even though I have DACA, I am afraid I might one day be forced to return to my home country, where I fear harm. What can I do?
U.S. immigration laws offer certain protection-based immigration benefits. For example, if you are afraid to return to your home country because you believe you will be harmed (“persecuted”) based on your race, religion, nationality, membership in a particular social group or political opinion, then you may be eligible for asylum or another protection-based immigration benefit. This is a complex area of the law and requires an in-depth analysis of your specific fear of return. If you are afraid to return to your home country, we recommend that you schedule a consultation with a licensed attorney or DOJ recognized organization.
14. Does the Social Security Number (SSN) I received belong to me forever?
The SSN that you received after to your initial DACA grant will belong to you for life. You can continue using your SSN for various matters (banking, housing, education, etc.). In order to accept employment, you may need to present a valid EAD/work permit in order to use your SSN for employment.
15. My work permit expires soon; do I have to tell my employer?
If your DACA is close to expiring, we recommend that, if eligible, you apply to renew as soon as possible. You can register to attend one of NIJC’s upcoming, free DACA renewal clinics. We are updating the calendar frequently with new clinic offerings.
You are not legally obligated to notify your employer that your work permit is expiring. Your employer is obligated to make sure they are employing individuals who are authorized to work. If your employer asks you for a new work permit, you have until your current work permit expires to produce a new one. If you do not produce a new work permit when your current work permit expires, your employer can terminate your employment. However, the employer has to give you the opportunity to present a new work permit and cannot take negative action against you (i.e. terminate your employment) until your current work permit expires.
16. What can I do now?
We encourage you to consult with a legal service provider about the possibility of filing an application for initial or renewal DACA benefits. We also encourage you and your family members to seek a legal consultation to explore other potential forms of immigration relief. NIJC has found that 14.3% of individuals screened for DACA eligibility were potentially eligible for more permanent forms of immigration relief. To schedule a legal consultation with NIJC, individuals can call 312-660-1370.