I-765 (c)(33): DACA Renewals, the 2022 Final Rule, and the Fifth Circuit

DACA is in renewal-only posture. Initial requests are accepted but not processed; renewal EADs are granted in two-year increments. Here is the litigation status, the renewal window, and the documentary record.

By Fola Editorial · September 13, 2023 · 6 min read

Deferred Action for Childhood Arrivals (DACA) sits in an unusual posture: a federal court has held the program unlawful but stayed its own injunction as to current grantees. USCIS therefore continues to accept and adjudicate renewal requests under 8 CFR 236.22 and the associated category code (c)(33) on Form I-765, but does not process initial DACA requests. The renewal window is short and unforgiving; missing it can cost two years of work authorization and reset the timer on the underlying deferred action.

What changed

Two events define the current state of DACA:

The August 30, 2022 Final Rule — DHS codified DACA in the Code of Federal Regulations at 8 CFR 236.21–236.25. The Final Rule took effect October 31, 2022 and preserved the substantive eligibility criteria from the June 15, 2012 Napolitano memorandum: arrival before age 16, continuous residence since June 15, 2007, presence on June 15, 2012, no disqualifying criminal record, and education / military criteria.
Texas v. United States, 50 F.4th 498 (5th Cir. 2022) — the Fifth Circuit held that the original 2012 DACA program violated the Administrative Procedure Act. On remand, Judge Hanen’s September 13, 2023 order extended that holding to the 2022 Final Rule but left intact the partial stay that allows continued processing of renewal requests. Initial requests are accepted by USCIS but not adjudicated.

Why it matters

For the current grantee, the operative facts are:

Renewals continue. USCIS adjudicates (c)(33) renewal applications and issues two-year EADs and two-year deferred-action grants. The USCIS DACA renewal page is updated as litigation evolves; check it before filing.
The renewal window is 120 to 150 days before expiration. Filing earlier risks rejection as premature; filing later risks a gap. The USCIS Policy Manual Vol. 11, Part A and the renewal instructions treat the 150-day mark as the conservative outer bound.
An expired DACA grant is harder to revive. A renewal filed more than one year after a prior grant expired is treated as an initial request and is currently held in abeyance. A renewal filed within one year of expiration retains the prior continuous-residence credit.
Travel on Advance Parole remains available for current DACA holders for humanitarian, educational, or employment purposes — see the related Advance Parole and AOS Abandonment Risk treatment for the Matter of Arrabally framework that matters here.

For the initial applicant, USCIS will accept the I-821D + I-765 + I-765WS package and the filing fees, but the application will be held pending further court order. Many practitioners file initial requests to preserve a place in line should the injunction be lifted; others advise waiting to avoid the $495 fee outlay during indefinite pendency.

Way forward

For the renewing applicant:

Calendar the renewal at 150 days before expiration. File Form I-821D, Form I-765 with category (c)(33), and Form I-765WS (the economic-necessity worksheet) together. The current filing fee is $495 — see the USCIS DACA fee page.
Maintain continuous residence documentation. A renewal that goes through after a gap of any length will be scrutinized — keep pay stubs, leases, school records, and utility bills as a continuous chain from the prior grant forward.
Disclose any new arrests, regardless of disposition. Renewals are denied for significant misdemeanors and multiple misdemeanors as defined in the Final Rule at 8 CFR 236.22(b)(6). Honest disclosure with a biometrics-based FBI record attached is the only safe approach.
Avoid international travel without Advance Parole. Departure on an expired EAD or without Form I-131 Advance Parole is treated as a denial of the renewal in nearly every practitioner survey.

For the initial applicant:

File only after a careful conversation with counsel. The fee is non-refundable. The application will sit. Some applicants gain peace of mind from filing; others would rather wait.
Track Judge Hanen’s docket in S.D. Tex. 1:18-cv-00068 — any reversal of the renewal-only posture would change the calculus immediately.

Disclaimer

Fola Form is a software company, not a law firm. This article is for general informational purposes and is not legal advice. The DACA litigation is fast-moving — verify the current posture against USCIS’s DACA page, the August 30, 2022 Final Rule, and the latest order in Texas v. United States before filing, and consult a licensed immigration attorney before relying on this article for a renewal or initial request.