Reminders for DACA Recipients and Employers that Work Authorization Continues After the Latest Decisions in the DACA Litigation

On October 5, 2022, the Fifth Circuit Court of Appeals partially upheld a July 2021 district court decision finding that the original DACA (Deferred Action for Childhood Arrivals) program (established in 2012) was unlawful; however, the Fifth Circuit sent the case back for the district court to consider the Department of Homeland Security’s new DACA regulation (issued in 2022). Shortly after the Fifth Circuit’s decision, the district court issued an order on October 14, 2022, that confirmed that the Department of Homeland Security cannot grant DACA to new applicants.

As a result of these most recent rulings, existing DACA recipients retain their grant of DACA and are allowed to reapply for (and receive) renewal, but the government cannot grant new DACA applications. There is no change to current grants of deferred action, DACA Employment Authorization Documents (EADs), and advance parole granted under the original 2012 DACA program. Those grants and EADs remain valid.

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While you probably do not even know that your employee is a DACA recipient unless they volunteered the information, the USCIS’ reminder is the government’s effort to ensure that you do not treat DACA recipients differently than any other employees regarding their authorization to work. If you have questions about this topic, please contact us at or 888-933-8374.

What should I do if my current or new employee is a DACA recipient? 

  • While portions of the court’s order are stayed, the court order does not disturb the grant of deferred action or the validity of work authorization for current DACA recipients. USCIS will also continue to adjudicate requests for DACA renewal and associated applications for employment authorization. USCIS will also continue to accept and adjudicate applications for replacement EADs. Your current and new employees with DACA may continue to receive valid EADs after the date of the court order.
  • No action is required for current employees who are DACA recipients who have presented valid EADs.
  • New employees who are DACA recipients and who present valid EADs are also authorized to work. See I-9 Central for more information on completing Form I-9 for new employees as well as additional employment authorization documents DACA recipients may present.
  • The court’s decision is not a basis to ask any employee to show more or different documentation to verify or reverify their employment authorization on Form I-9.
  • If you participate in E-Verify, the system can confirm identity and employment eligibility for new employees who are DACA recipients with a valid and unexpired EAD. 
  • For information about the rights of employees, please see the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section’s information on employee rights.

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