New DACA Guidance (Effective July 28, 2020)

In the aftermath of the Supreme Court of the United State's blocking [see blog] the Trump Administration's attempt to end the Deferred Action for Childhood Arrivals (DACA) program for the time being, the acting Secretary of Homeland Security, Chad F. Wolf, published a new memorandum setting forth policies for the implementation of DACA going forward. The Wolf Memorandum [link], dated July 28, 2020, rescinded the two DACA rescission memoranda from 2017 and 2018 that the Supreme Court majority took issue with, while promulgating new policies in the interim. On August 21, 2020, the United States Citizenship and Immigration Services (USCIS) published a new USCIS memorandum [link] providing guidance to USCIS officers on the implementation of the Wolf Memorandum.

In this article, we will first examine the Wolf Memorandum before examining how the USCIS plans to implement Acting Secretary's guidance.

Wolf Memorandum: History of DACA and Rescission of Prior Memoranda

The original DACA memorandum [see blog] was issued by former Secretary of Homeland Security Janet Napolitano on June 15, 2012. It provided for forbearing from removal against certain aliens who were unlawfully present in the United States but who had been brought to the United States as children. The DACA memorandum also provided for a renewable two-year period of employment authorization for DACA beneficiaries.

Former Secretary Jeh Johnson published a memorandum on November 20, 2014, extending similar protections to parents of U.S. citizens and lawful permanent residents. This policy was called “DAPA.” The DAPA memorandum also extended the period of work authorization for DACA recipients from two years to three and adjusted the date by which individuals must have entered the United States in order to be eligible for DACA. The DAPA memorandum and DACA expansion never took effect — the memorandum was enjoined universally by the United States District Court for the Southern District of Texas, and the injunction was subsequently affirmed by the United States Court of Appeals for the Fifth Circuit and by an equally divided Supreme Court of the United States. Former Secretary of Homeland Security John Kelly formally rescinded the DAPA memorandum [see article] in full on June 15, 2017.

On September 5, 2017, former acting Secretary of Homeland Security Elena Duke issued a memorandum rescinding the DACA memorandum [see article], basing her opinion on the legal conclusions of former Attorney General Jeff Sessions. The Duke memorandum was enjoined by several district courts. In response, former Secretary of Homeland Security Kirstjen Nielsen, who had succeeded acting Secretary Duke, published a second DACA rescission memorandum providing more explanation for the decision. This too was blocked by several district courts. On June 18, 2020, the Supreme Court of the United States concluded by a vote of 5-4 that the DACA rescissions were invalid and therefore must be vacated. However, the majority held that the Administration could eventually end DACA through different procedures.

In light of the Supreme Court's decision, Attorney General William Barr withdrew the legal opinion published by former Attorney General Jeff Sessions [see blog] taking the position that DACA was likely illegal. The Attorney General pursued this course so as to not constrain acting Secretary of Homeland Security Wolf's full consideration of the issue.

Acting Secretary Wolf rescinded the Duke and Nielsen DACA rescission memoranda. He took the position that DACA “presents serious policy concerns that may warrant its full rescission.” However, in light of the Supreme Court decision, acting Secretary Wolf opted to “conduct a full and careful consideration of a full rescission.”

Acting Secretary Wolf's Concerns With DACA as Policy

Acting Secretary Wolf articulated several concerns with DACA as policy which support its eventual rescission. In so doing, he indicated in the memorandum that the Administration's position on DACA remains unchanged. Below, we will briefly set forth the acting Secretary's concerns with DACA before proceeding to examine the substantive changes he made to the program pending his full consideration of the issues.

First, acting Secretary Wolf noted that Congress has had sufficient time to consider whether to pass legislation granting permanent relief to DACA beneficiaries, and thus far has declined to take action. He stated that rescinding DACA may prompt Congress to decide what it wants to do about DACA beneficiaries, one way or another. Legality aside, the acting Secretary observed that as an executive action, DACA lacks the permanence of statutory law.

Second, acting Secretary of Wolf stated that he had concerns as a matter of policy about articulating a detailed list of criteria for non-enforcement of the immigration laws. Notwithstanding provisions in the existing policy that specify that DHS officers should resolve each DACA claim on a case-by-case basis, the acting Secretary took the position that the DACA criteria significantly inhibited individualized consideration of each case.

Third, the acting Secretary stated that he was concerned that DACA undermined the perception that the DHS consistently enforces the immigration laws as Congress has written them. Specifically, he wrote that “DACA makes clear that, for certain large classes of individuals, DHS will at least tolerate, if not affirmatively sanction, their ongoing violation of the immigration laws.”

Fourth, the acting Secretary expressed his concern that DACA encouraged aliens with no legal right to enter the United States and remain here to undertake a perilous journey to enter the United States with their children. He suggested that rescinding DACA would potentially further the DHS's efforts to discourage illegal immigration involving children.

The list of concerns suggests that the DHS has not changed its position regarding DACA, but is undertaking a new review to craft a justification for rescinding the policy in accordance with what the Supreme Court majority said would be acceptable. However, given the upcoming election and the length of time that such a review may take, the ultimate fate of DACA remains very much in the air.

Changes Pending Reconsideration of the DACA Policy

Acting Secretary Wolf opted to make changes to the implementation of DACA pending his reconsideration of the policy. The changes that he announced limit the scope of DACA in various ways. However, he took the position that the changes are not so limiting as to “encroach materially on the reliance interests that have been raised by individuals, organizations, and state and local governments during the course of the extensive litigation…”

Acting Secretary Wolf made the following changes to DACA, effective immediately upon the publication of his memorandum:

DHS shall reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the near future.
DHS shall adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
DHS shall limit the period of any action granted [under] the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
DHS shall refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.
DHS shall reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
DHS shall refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
DHS shall exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
DHS shall continue to comply with the information-sharing policy as reflected in the DACA Frequently Asked Questions issued alongside the Napolitano Memorandum, and as set forth in USCIS's Form I-821D instructions.

Below, with the aid of the USCIS's memo providing guidance on the changes made by acting Secretary Wolf, we will examine each of the main changes to the DACA policy.

New Initial DACA Requests Will be Rejected

For the time being the DHS will not grant any DACA requests by individuals who have never before received DACA. This applies not only to initial DACA applications submitted after the Wolf Memorandum but also to initial DACA applications that were pending at the time of the issuance of the Wolf Memorandum. The USCIS will return any fees associated with initial DACA applications rejected under the Wolf Memorandum. Furthermore, the rejection of new initial DACA applications is done without prejudice in the event that the DHS later accepts new initial DACA applications. This provision applies to associated applications for employment authorization as well.

The USCIS clarifies that there is one class of “initial” DACA applications that will still be processed. The USCIS explains that “DACA recipients who failed to submit their renewal requests within the one-year time period following expiration have generally been permitted to request DACA anew.” The “USCIS has treated such requests as requests for 'initial' DACA for required evidence, processing, and adjudication purposes.” In its memo, the USCIS clarifies that it will continue to process DACA applications by individuals who at any time possessed DACA benefits, notwithstanding any classification of such requests as “initial” DACA requests. Thus, the Wolf Memorandum prohibition on granting initial DACA requests only applies to requests by individuals who have never had DACA benefits.

Pending and Future DACA Requests and Associated EAD Applications from DACA Recipients

The USCIS will continue to adjudicate all pending DACA renewal requests and renewal requests made after the Wolf Memorandum. The requests will be adjudicated under the changes made to DACA by acting Secretary Wolf. As before the Wolf Memorandum, the USCIS will continue to reject, without prejudice, DACA requests not filed in accordance with form instructions.

Going forward, the USCIS will generally reject DACA renewal requests received more than 150 days prior to the expiration of the DACA recipient's current DACA validity period. However, “nothing precludes USCIS from exercising its discretion to accept a DACA renewal request filed 150 days or more in advance of expiration if there are legitimate reasons for doing so…” For the most part, renewal applicants should file within 150 days of the expiration their current DACA validity period.

Limit the Period of DACA and Associated Employment Authorization to One Year

The Wolf Memorandum provides that DACA and any associated employment authorization should not exceed one year. The USCIS explains that the one-year validity period begins on the date the DACA request receives final approval. Because reducing the DACA validity period to one year from two will increase the amount of fees that DACA recipients will have to pay to maintain DACA, the USCIS is assessing whether it can reduce DACA renewal fees while acting Secretary Wolf's review is pending. The USCIS notes that while the fee for the Form I-765, Application foe Employment Authorization, is increasing generally on October 2, 2020, it is remaining flat for DACA-associated Forms I-765: $410, plus an $85 biometics fee.

Refrain From Terminating Any Prior Grants of DACA Or Associated Employment Authorization Based Solely Upon the Wolf Memorandum

The USCIS will allow those who were previously granted DACA and employment authorization for two years to remain on DACA for the entirety of their DACA validity periods, notwithstanding the new one-year limitation on DACA validity periods. Furthermore, “[c]onsistent with this guidance, two-year DACA recipients who apply for a replacement EAD due to loss, theft, or the mutilation of their prior EAD will receive a replacement EAD with the same expiration date based on the original two-year validity period, assuming the application is otherwise approvable.” This guidance does not preclude prior grants of DACA from being terminated on any other grounds.

New Limitations on Advance Parole for DACA Recipients

Acting Secretary Wolf provided that all pending and future Form I-131 applications for advance parole from DACA recipients should be rejected, absent exceptional circumstances.

To start, in accordance with the new guidance, the USCIS will reject and return all Form I-131 applications from DACA recipients that were pending at the time of the issuance of the Wolf Memorandum and will also return any associated fees. These DACA recipients will be allowed to refile their Form I-131 advance parole applications under the new guidance. The Form I-131 rejection notices will inform DACA recipients that they may re-apply for advance parole consistent with the Wolf Memorandum and instructions that will be announced on the USCIS website.

The USCIS will also administratively close cases involving advance parole applications filed by DACA recipients at non-DACA filing locations and refund any associated fees. The USCIS will issue notices informing those applicants of the administrative closure under the Wolf Memorandum and that they may re-apply for advance parole, consistent with the Wolf Memorandum and new filing instructions to be announced on the USCIS website.

Notwithstanding the changes to advance parole for DACA, the USCIS will continue to adjudicate advance parole requests by DACA recipients in association with other non-DACA immigration requests. “For instance, if a DACA recipient has a pending Form I-485 Application to Register Permanent Residence or Adjust Status and requests advance parole on the basis of his or her pending Form I-485, USCIS will adjudicate the advance parole request under the existing policies [see article] for Form I-485-based advance parole requests.” The new advance parole policies for DACA only apply to DACA recipients who are not requesting advance parole in conjunction with a non-DACA provision.

For DACA recipients who have no basis for requesting advance parole other than DACA, they “may request advance parole if they have valid DACA and can demonstrate that they warrant the extraordinary privilege of being permitted to return to the United States after traveling abroad, even without a lawful immigration status, pursuant to a advance parole travel document.”

In general, the USCIS interprets the Wolf Memorandum as “institut[ing] a new general hold on granting advance parole to DACA recipients based on prior-DACA advance parole standards…” That is, in the ordinary case, the USCIS will not grant advance parole to DACA recipients who have no non-DACA basis for requesting advance parole. All such advance parole applications will be adjudicated under the standards set forth in INA 212(d)(5), which outlines the DHS's parole authority. Thus, in order for a DACA recipient who has no non-DACA basis for requesting advance parole to receive advance parole, the USCIS must find that there is an urgent humanitarian reason for granting the request or that granting the request would provide a significant public benefit. The USCIS is interpreting acting Secretary Wolf's language that advance parole should only be granted to DACA recipients in “extraordinary circumstances” as applying the high statuttory standard in INA 212(d)(5). The USCIS will adjudicate each advance parole request on a case-by-case basis under the totality of the circumstances standard.

The USCIS provides that, in general, “traveling abroad for educational purposes, employment related purposes, or to visit family members living abroad will not warrant advance parole under Secretary Wolf's interim policy regarding the discretionary exercise of parole for urgent humanitarian reasons or significant public benefit.” Furthermore, “travel for vacation is not a valid basis for advance parole.” The USCIS provided a list of cases wherein advance parole might be warranted for a DACA recipient, pending a case-by-case assessment involving the totality of factors presented:

Travel to support the national security interests of the United States including military interests;
Travel in furtherance of U.S. law enforcement interests;
Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien.

The burden to establish eligibility for advance parole rests with the alien.

The USCIS will always consider all discretionary factors in a request for advance parole. The USICS memo provides that “[t]he advance permission to travel abroad and to return to the United States pursuant to an advance parole travel document is an extraordinary privilege.” It added that it is a “particularly extraordinary privilege” in the context of DACA in light of the fact that DACA recipients have resided in the United States contrary to U.S. immigration laws.

In order to ensure the proper application of the policy, the USCIS will designate specific service centers for handling DACA advance parole requests. When an advance parole request made after the Wolf Memorandum is denied, the applicant will have no avenue for appeal and will not receive a refund of any fees associated with the request.

Refrain From Terminating Previously Approved Advance Parole Based Solely on the Wolf Memorandum

Notwithstanding the Wolf Memorandum, the USCIS will not terminate previously approved advance parole documents issued to DACA recipients during the stated validity period of the existing parole document. However, previously issued advance parole documents may be terminated for a valid, separate legal basis distinct from the Wolf Memorandum.

Discretionary Authority to Terminate or Deny DACA at Any Time

The USCIS is crafting new policies regarding when to terminate or deny DACA based on the Wolf Memorandum. However, the USCIS will continue to follow the DACA termination procedures required by all relevant court orders, so long as such orders remain in effect.


The Wolf Memorandum makes several meaningful changes to DACA. Chief among these changes is continuing the restriction on new initial DACA applications, limiting the validity period of new DACA and associated employment authorization periods to one year, and implementing a very high standard for granting advance parole to DACA recipients who have no non-DACA basis for advance parole. The Wolf Memorandum will not, however, affect the validity periods of previously granted DACA periods or advance parole.

The future of DACA remains very uncertain, and the language of the Wolf Memorandum suggests that the current DHS is still looking to rescind DACA in the future. For the time being, however, DACA remains in effect under the new terms outlined by acting Secretary Wolf. As always, it is possible that the terms of DACA may become more favorable under a new court order. DACA recipients and requestors should consult with an experienced immigration attorney for guidance on how changing DACA policies may affect their individual cases.