On September 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the DACA final rule unlawful. DACA, which commenced in 2012, protects certain undocumented immigrants brought to the United States as children from deportation and allows them to receive employment authorization. As a result of this decision, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization. However, because the July 16, 2021 injunction remains in effect, while USCIS will continue to accept initial DACA requests and accompanying applications for employment authorization, it cannot process them.

Practically, this means that this decision does not disturb the safeguards against deportation the injunction guaranteed for the over 825,000 DACA recipients. Employers can continue to employ DACA recipients with valid Employment Authorization Documents (EAD – category C33), which can be renewed. Because of USCIS processing delays, DACA recipients should apply for a renewal of their EAD at least six months in advance of the expiration date. Employers should be aware that DACA recipients can work only with a valid EAD, as this category does not qualify for an automatic extension of their expiring EADs while their application is pending. 

Littler will continuing to monitor and will provide updates as they become available.