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DHS Implements Changes To DACA Program In Light Of Supreme Court Ruling

  • Department of Homeland Security releases a memorandum impacting DACA in response to a June U.S. Supreme Court decision 

  • Homeland Security is undertaking a review regarding the future of DACA  

  • Grants of DACA and associated employment authorization documents are reduced from two years to one year

  • All initial requests for DACA will be rejected and all pending and future requests for advance parole from DACA grantees will be rejected absent exceptional circumstances

In response to a June U.S. Supreme Court ruling rejecting an earlier attempt to terminate the Deferred Action for Childhood Arrivals (DACA) program, the U.S. Department of Homeland Security (DHS) on July 28 released a memorandum titled “Reconsideration of the June 15, 2012 Memorandum entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.’”

This new memorandum halts all “initial” applications for DACA, rejects nearly all applications for advance parole by DACA grantees, and reduces grants of DACA and associated employment authorization documents from two years to one year while it undertakes a review of the program. 

Since a federal court announced earlier this month that the DHS must begin to accept new applications for DACA as a result of the Supreme Court’s ruling, it is likely that the memorandum may be subject to a legal challenge.

After the Trump administration attempted to rescind DACA under then-Attorney General Jeff Sessions and then-DHS Secretary Elaine Duke, several legal challenges ensued. While all parties agreed that the administration possessed the authority to rescind DACA, the dispute primarily concerned the procedure the administration was required to follow in rescinding DACA.

Several lower courts blocked the effort and their cases ended up at the U.S. Supreme Court for review. In June, in Department of Homeland Security v. Regents of the University of California, the Supreme Court blocked an earlier attempt by the Trump administration to rescind DACA. It ruled that the Administration failed to provide an adequate reason to justify ending the program. 

Even with this memorandum, employers may continue to legally employ DACA grantees, so long as these individuals continue to possess valid employment authorization documents.  Employers and individuals with DACA grants should note that moving forward, the validity periods for DACA renewals and associated employment authorization documents are reduced to one year, and plan accordingly. Employers should ensure that employees with a grant of DACA file applications for renewal well in advance of the expiration date, and take into account current immigration processing times and production delays with the issuance of employment authorization documents. 

As a reminder, the DACA category is not eligible for an automatic extension of employment authorization based solely upon the filing of a renewal request. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 211


About this Author

Michael Durham Immigration Attorney Barnes & Thornburg

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...

Mercedes Badia-Tavas Immigration Attorney

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes –...


Sarah Hawk’s strategic mind and extensive understanding of current and emerging immigration legislation and trends have earned her national and international recognition. Sarah provides crucial immigration counsel to domestic and multinational companies in various industries such as healthcare, financial services, hospitality, higher education, and technology, among others.

Sarah brings nearly 20 years of experience helping companies develop and implement immigration policies to secure visas and permanent residence status for executives, managers and critical employees. She also...

Michael Palmer Barnes Labor and Employment Litigation Law Attorney Thornburg Law Firm South Bend and Grand Rapids

Michael Palmer is a partner in the South Bend, Indiana and Grand Rapids, Michigan offices of Barnes & Thornburg LLP. He primarily represents private and public sector employers in all aspects of labor and employment law. Mr. Palmer also devotes a portion of his practice to fair housing issues.

In his labor and employment practice, Mr. Palmer handles union-related issues, employment litigation, general employment counseling, and immigration compliance. In union-related matters, he represents management in union organizing campaigns and...