DACA After Texas v. United States: Work Authorization, Renewals, and the Path Forward in California
Deferred Action for Childhood Arrivals has been mired in litigation since 2017, but the Fifth Circuit's October 2023 decision in Texas v. United States delivered the most definitive legal blow yet. The court held that the 2012 DACA policy exceeded the Department of Homeland Security's authority under the Administrative Procedure Act, affirming the district court's nationwide vacatur of the program. The ruling preserved the injunction that currently allows existing, valid DACA recipients to renew their status, but it enjoins DHS from approving any initial applications — meaning no new grants have been issued since July 2021.
For the roughly 580,000 individuals with active DACA status, the most immediate practical concern is the renewal cycle. USCIS continues processing renewal applications under the terms of the injunction, but processing times have remained volatile — ranging from six to eighteen months at various service centers. Recipients whose Employment Authorization Documents (EADs) are expiring within twelve months should file renewals as early as USCIS policy allows (currently up to 180 days before expiration) and should maintain documentation that their application is pending, as EAD receipt notices provide limited protection during administrative processing delays.
California presents a specific planning context because the state has the largest DACA recipient population in the country — approximately 200,000 individuals. California has enacted several state-level protections that apply regardless of federal DACA status: professional licensure for individuals without federal authorization to work (Business and Professions Code section 30), state financial aid for undocumented students (AB 540 and the California Dream Act), and driver's license eligibility under AB 60. These state protections are not tied to DACA and remain available even if federal status lapses.
For employment, the intersection of federal EAD status and California state law creates a nuanced situation. Employers in California are prohibited from firing an employee solely because their work authorization is a renewal of a prior EAD that may be subject to federal litigation uncertainty — the California Labor Commissioner has taken the position that termination based solely on DACA-related work authorization uncertainty may constitute unlawful discrimination under FEHA where the employer treats similarly situated employees with other temporary work authorizations differently. This is an unsettled area, and employers should consult counsel before taking any adverse action tied to DACA renewal status.
DHS finalized a new DACA rule in August 2022 to shore up the regulatory foundation, but the Fifth Circuit's ruling found the 2022 rule substantively invalid for the same reasons as the 2012 policy, though it preserved the injunction pending Supreme Court review. As of the 2026 filing date, the Supreme Court has not yet taken up the issue on the merits of the 2022 rule challenge, and the case remains pending in the Fifth Circuit on remand. The realistic path to permanent resolution for current DACA recipients is federal legislation — which Congress has repeatedly failed to pass — or a future Supreme Court ruling upholding the 2022 regulatory framework.
Attorneys advising DACA recipients in California should help clients document their ties to the state, maintain continuous EAD coverage through early renewals, and explore whether any pathways to lawful permanent residence have opened through employer sponsorship, family relationships, or the U-visa/T-visa process, where applicable.