On January 4, 2021, DHS announced that for I-9 purposes, Deferred Action for Childhood Arrivals (DACA) recipients may present an unexpired Employment Authorization Document (EAD) with Code C33 issued on or after July 28, 2020, along with an I-797 Extension Notice that shows an additional one-year extension. This new procedure is in response to a court order.

After the U.S. Supreme Court ruled the Administration had not properly terminated DACA, Acting Director of Homeland Security, Chad Wolf, issued a memo explaining that the Administration would be reviewing DACA and that until the review was concluded, DACA would be restricted. No new initial applications would be accepted, renewals (including renewals of EADs) would be limited to one year, and advance parole would be issued only for urgent humanitarian purposes, the memo stated. Then, in November 2020, a federal judge, Nicolas G. Garaufis, ruled that Acting Director Wolf had not been properly appointed and his rollback of DACA, therefore, was invalid.

As part of the Judge’s ruling, USCIS was ordered to post notices informing the public of how the court’s order would be implemented. That notice can be found on the USCIS website along with instructions on how to apply for DACA. In compliance with the court order, USCIS notified the public it would do the following under the terms of the DACA policy in effect prior to its termination by President Donald Trump on September 5, 2017:

• Accept first-time requests for deferred action;

• Accept renewal requests for deferred action;

• Accept applications for advance parole documents;

• Extend one-year grants for deferred action to two years; and

• Extend one-year employment authorization documents to two years.

USCIS also agreed to take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization to those who were issued such documentation on or after July 28, 2020, with only a one-year validity period. As it turns out, that evidence will be in the form of an I-797 Extension Notice.

DHS plans to comply with the above while the Judge’s ruling remains in effect, “but DHS may seek relief from the order.” DHS has not yet appealed the order. Although President-elect Joe Biden has said he would protect DACA, another case threatening the program is pending in federal court in Texas.