Deferred Action for Childhood Arrivals (DACA) Under the Trump Administration 2.0

At a Glance

• The U.S. Court of Appeals for the Fifth Circuit ruled against the legality of the DACA program days before the Trump administration took office.
• Approved DACA applications and related Employment Authorization Documents (EADs) remain valid, and renewal applications remain available, but new applications are still enjoined from being processed by U.S. Citizenship and Immigration Services (USCIS).
• Since taking office, President Trump has not directed any action in connection with the DACA program. The uncertainty and status quo surrounding the fate of the DACA program continues.

Status of DACA Program

First enacted by President Obama in 2012, the Deferred Action for Childhood Arrivals (DACA) program allows certain individuals, who came to the United States as children and meet several guidelines, to request consideration of deferred action on removal for a period of two years, subject to renewals. These individuals, often called “Dreamers,” are also eligible to request work authorization. According to data released by USCIS, there are more than 537,700 DACA active recipients as of September 2024.

DACA has been under attack and on life support for several years now, including under Trump 1.0 and, from all indications, will end in 2025. Of note, the previous Trump administration attempted to end the DACA program in 2017, before the termination was overturned by the Supreme Court in 2020 for being an arbitrary and capricious termination in violation of the Administrative Procedure Act.

• As of July 16, 2021, USCIS has been enjoined from approving initial DACA applications due to a federal court ruling from the U.S. District Court for the Southern District of Texas, which declared the program unlawful.
• On September 13, 2023, the U.S. District Court for the Southern District of Texas again declared the program unlawful.

On January 17, 2025, the Fifth Circuit Court of Appeals upheld the decision of the Southern District of Texas finding the program unlawful, but limited the decision to Texas and kept all DACA renewals — including for those who live in Texas — available for eligible recipients.

At this time, existing grants of DACA and related EADs remain valid until they expire unless individually terminated, and renewal applications will continue to be accepted and processed by USCIS. Initial DACA applications will also continue to be accepted by USCIS but will not be processed.

Next Steps for Employers

As the future of DACA remains uncertain in 2025 and beyond, employers need to act now, if they have not done so already, to know their workforce and screen their DACA employees for other benefits and consider moving them to another nonimmigrant status, where possible. While DACA is a temporary benefit and does not lead to lawful permanent resident status or give any other immigration status, it does not preclude beneficiaries from applying for nonimmigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection for which they may be eligible. At this time of year, it may be particularly beneficial to screen for H-1B visa eligibility ahead of the upcoming H-1B cap lottery in the spring.

In many cases, one or more of these options may not have initially been available or apparent when the individual began employment, so it is important to review each situation on a case-by-case basis with fresh eyes as the threat of the end of DACA looms. Additionally, employers should seek appropriate legal counsel to assess issues of unlawful presence and the impact this may have on short- and long-term immigration options.

As a reminder, all employers are required to ensure that there is a compliant Form I-9 on file for every employee hired after November 6, 1986. Ensuring the proper documentation is provided by beneficiaries of the DACA designations is part of that compliance. It is also important to make sure individuals who are allowed to work in the United States are not improperly rejected for not having a valid work authorization leading to citizenship bias and related claims. For further information regarding verifying or reverifying the employment authorization of DACA status holders, review USCIS’s I-9 Central webpage.

Webinars for More Information

For additional information through 2025, register for Faegre Drinker’s Immigration and Global Mobility practice’s Business Immigration Webinar Series: Compliance & Hiring Strategies for 2025.