On Saturday, November 14, 2020, a federal district court judge in Brooklyn, NY, concluded that the Wolf memorandum issued July 28, 2020, whose provisions further restricted the availability of DACA, was issued without legal authority because Chad Wolf was not lawfully serving as the acting secretary of Homeland Security. The judge also certified a nationwide class in the case. The court appointed the Jerome N. Frank Legal Services Organization at Yale Law School, NILC, and Make the Road New York as attorneys for the class.

During a Nov. 18, 2020, case status conference, the plaintiffs in Batalla Vidal v. Wolf and the plaintiffs in a related case, State of New York v. Trump, shared their plan to ask the court for specific orders requiring the government to take action on DACA. During the status conference, the court was clear that the 2012 DACA memorandum should be the law that is “on the books.” The judge said this case impacts “the lives of many, many people who were buoyed by the Supreme Court’s decision in June and had been undermined by the conduct of the Department of Homeland Security since then.” He said that it is important to adhere to the Supreme Court’s decision issued in June, which would have allowed people to apply for DACA under the 2012 rules. The court expressed deep concern for members of the certified class and subclass who are eligible for DACA and deserve closure.

On Friday, December 4, 2020, the court issued an order vacating the Wolf memo and returning DACA to the terms that were in place before September 5, 2017. The government is now accepting first-time requests, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with the court’s memorandum and order of November 14, 2020. The government published a notice on December 7, 2020 stating that it is now accepting these applications. The court also extended to two years employment authorization documents that were issued for one year. The government mailed notice to all class members informing them of the extensions.

In addition, the court also required the government to produce a status report on the DACA program by January 4, 2021. The report included: (1) the number of first-time requests, renewal requests, and applications for advance parole received, adjudicated, approved, denied, and rejected from November 14 until December 31, 2020; and (2) the number of first-time requests, renewal requests, and applications for advance parole that were processed according to the terms of the Wolf memo. A summary of the data included in the report is available below.

During a status conference on Thursday, December 10, 2020, the court ordered the federal government to mail individualized notices by January 8, 2021 to (1) individuals who received a one-year EAD; (2) individuals whose first-time request for DACA was rejected under the Wolf memo; and (3) individuals whose applications for advance parole were rejected under the Wolf memo. The government filed a letter on January 7, 2021 notifying the court that it has mailed the individualized notices to all affected class members.

The court also ordered the government to issue new EADs to all DACA recipients who received one-year EADs as evidence that their current EADs are now valid for two years. The new EADs are to be issued no later than 30 days before the expiration date of the current EADs.

• If you submitted a first-time request for DACA or advance parole and that application was rejected. Individuals whose requests for DACA or advance parole were received by USCIS on or after June 30, 2020, and whose applications were rejected under the Wolf memo were sent an individualized notice before January 8, 2021, stating that they can apply again for DACA or advance parole.
• If you have a pending first-time request for DACA or an application for advance parole. Individuals whose first-time applications for DACA or applications for advance parole are still pending do not need to resubmit.
• If you received a one-year grant of DACA and employment authorization, you do not need to reapply to extend your DACA and employment authorization. Affected individuals were sent individualized notices before January 8 stating that their DACA and EADs had been extended to two years and that they would be mailed a new EAD no later than 30 days before the expiration date of their current EAD.

On Saturday, November 14, 2020, the court certified a nationwide class that includes all individuals who are or will be eligible for DACA, as well as a subclass of individuals who had applications for DACA, whether initial or renewal, pending with USCIS on any date between June 30 and July 28, 2020, and that have not been or will not be adjudicated according to the 2012 DACA memorandum.

If you are in one or both of these categories, you are a member of the class without having to take any further steps.

That means that the relief the judge ordered on December 4, 2020, benefits all class members even though they are not one of the named plaintiffs in the case. The only individuals who are excluded from the class and subclass are those who would be class members except that they chose to file their own individual lawsuits challenging the July 28, 2020, memo issued by Chad Wolf.

DACA applications processed under the unlawful Wolf memo. From June 30, 2020, through Dec. 4, 2020:

• USCIS rejected 4,383 first-time DACA applications pursuant to the Wolf memo
• 68,328 DACA recipients received a one-year DACA grant
• 68,310 individuals received a one-year grant of employment authorization (an employment authorization document, or EAD, valid for one year)

Advance parole requests processed under the unlawful Wolf memo. Between July 28, 2020, and Dec. 4, 2020, USCIS received 529 applications for advance parole and rejected 125 pursuant to the Wolf memo. One application was approved.

On January 4, 2021, the government filed a status report with the court identifying (1) the number of requests for DACA and advance parole that U.S. Citizenship and Immigration Services (USCIS) processed between November 14, 2020, and December 31, 2020, and (2) the number of requests that USCIS processed under the Wolf memorandum, which the court has found unlawful. A summary of the data is provided above.

Initial DACA applications. Between Nov. 14 and Dec. 31, 2020, USCIS received 2,713 initial DACA applications (including applications from people whose DACA had lapsed before). During that period:

• 295 applications were adjudicated (note that we are not aware of any of these being true first-time applicants)
• 174 were approved (almost 59%)
• 121 were denied (approx. 41%)
• 369 were rejected

DACA renewals. Between Nov. 14 and Dec. 31, 2020, USCIS received 28,821 renewal applications. During that window:

• 62,170 applications were adjudicated
• 61,844 were approved (approx. 99% approved)
• 326 were denied (less than 1%)
• 2,842 were rejected

Advance parole. Between Nov. 14 and Dec. 31, 2020, USCIS received 163 requests for advance parole. The government reports that no requests were adjudicated, approved, or denied during this time. Twenty-five (25) requests were rejected. (Note that this data may not reflect requests for advance parole that were submitted at USCIS offices in person in emergency situations.)

On January 7, 2021, the government notified the court via a letter that it has:

1. Mailed individualized notices to all relevant class members whose requests for DACA were approved for a one-year period, informing them that their current period of deferred action and their employment authorization document (EAD) have been automatically extended from one year to two.
2. Mailed individualized notices to all relevant class members who applied for DACA for the first time and whose applications were received at a USCIS lockbox on or after June 30, 2020, and were rejected pursuant to the Wolf memo. The notice states that USCIS is now accepting first-time applications for DACA and that the recipient may resubmit their first-time DACA application. If you are a first-time DACA applicant, you may resubmit your application even if you have not yet received your individualized notice. We encourage you to consult with an immigration attorney before doing so.
3. Mailed individualized notices to all relevant class members whose DACA-based applications for advance parole were received at a USCIS lockbox on or after June 30, 2020, and were rejected under the Wolf memo. The notice states that USCIS is now accepting applications for advance parole based on the terms of the DACA policy in place prior to September 5, 2017, and that the recipient may resubmit their application for advance parole. If you are a DACA holder seeking advance parole, you may resubmit your application even if you have not yet received your individualized notice. We encourage you to consult with an immigration attorney before doing so.

Published and distributed public guidance about the extended employment authorization documents, making clear that the extended EADs should be treated as having a two-year expiration date for all purposes for which EADs are used, including eligibility for state services. The government also published, instructions for employees completing a Form I-9 (Employment Eligibility Verification), and instructions for verifying a job applicant’s extended deferred action under DACA. On June 28, 2021, the government issued a new report listing the number of initial and renewal DACA applications that were pending as of March 31, 2021. Notably, the government received 49,921 initial applications between January through March of 2021 and approved 763 applications during that period. Approximately 55,550 initial applications remained pending on March 31st. The government also received 95,042 applications for renewal and approved 66,404 renewal requests during that timeframe.

The government will issue new EADs to all DACA recipients who received one-year EADs as evidence that their current EADs are now valid for two years. The new EADs will be issued at least 30 days before the expiration date of the current EADs. Affected DACA recipients will start receiving extension EADs on or around June 28, 2021 through November 2021, depending on when their one-year EAD expire. Those EADs will be issued at no cost to DACA recipients.

You can find listings of immigration attorneys and nonprofit organizations from the American Immigration Lawyers Association, from the Immigration Advocates Network, or from Informed Immigrant.