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Can people who qualify for DACA apply for the first time after the US Supreme Court decision? USA of allowing the program to continue despite efforts by the Trump administration to end it.

In a decision 5-4, the United States Supreme Court decided that President’s Donald Trump 2017 decision to end the DACA program (Deferred Action for Childhood Arrival) for undocumented youth is unconstitutional. Nonetheless, the court was clear in establishing that the government can again challenge the DACA program in the future. As a matter of fact, the president in a tweet indicated that he has a desire to “start the legal process again” referring to another legal battle to try to end the program.

The good news is that regardless of a new legal battle, the future of more than 700,000 young dreamers for now is partially guaranteed, allowing them to work, travel, study and achieve their dreams. However, neither the Supreme Court decision nor the USCIS immigration agency have ruled on potential new first time DACA applicants and their eligibility to apply for this program. Back in 2017 when President Donald Trump tried to eliminate the program, during the process, the Department of Homeland Security (DHS) had only allowed renewals of applications who already filed their application for the first time.

Now, the million-dollar question is: Can people who have not applied for DACA for the first time, apply for this benefit? Although there has been no official response from the U.S. Supreme Court or the immigration agencies, legally-speaking everything indicates that it can be. Our reasoning and that of other experts in the legal community is based on the procedural history of the DACA program, including the decision of the Supreme court in Department of Homeland Security v. Regents of the University of California, 591 US (2020). 

Back in 2017 the Department of Homeland Security (DHS) stopped processing new applications only after President Trump questioned and challenged the DACA program in 2017. Since the Supreme Court held that there was no legal basis to terminate the program (and considered the DHS arguments as “arbitrary” and “capricious”) it follows that the requirements set forth under President Obama’s executive order on DACA are still in effect.

According to the US Immigration agency (USCIS) to qualify for DACA the applicant meet the following requirements:

  1. Must be 31 years of age as of June 15, 2012
  2. Must have arrived in the United States before turning 16
  3. Must have continuously resided in the United States from June 15, 2007 to the present
  4. Must have been physically present in the United States on June 15, 2012, and at the time of filing the request for Consideration of Deferred Action with USCIS.
  5. Must have no legal status on June 15, 2012
  6. Must have been  currently in school, have graduated or obtained a certificate of completion from high school, have obtained a Certificate of General Education Development (GED), or are a veteran with an honorable discharge from the Coast Guard or the Forces United States Navy, and
  7. Must not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and in no other way constitutes a threat to national security or public safety.

We encourage all young immigrants without lawful status in the U.S. who meet the requirements described here to submit their DACA applications, which will allow them to legally live and work in the United States.

If you need assistance in applying the DACA including a work permit based on this application, you can contact our office at Jesus Reyes Law for more information.