The Biden administration on Wednesday released the final version of a rule to codify and fortify the Deferred Action for Childhood Arrivals (DACA) program.
The rule, scheduled to be published on August 30, 2022 in the Federal Register, largely maintains the DACA program as it was created by an Obama-era memo in 2012. The rule will take effect October 31, 2022, presuming no legal challenges are launched against it.
The new DACA regulation will largely mirror the program as it was created in 2012. To be eligible for DACA, a person must have entered the U.S. before turning 16, have lived in the U.S. continuously since June 15, 2007, were not yet 31 years old on June 15, 2012, have either completed high school or received a GED, been honorably discharged from the U.S. armed forces, or be enrolled in school, and have no felony or serious misdemeanors on their record.
DHS received over 16,000 public comments on the proposed rule that was released in September 2021. Many of these comments urged the Department of Homeland Security (DHS), who proposed the new rule, to move the required entry date into the United States forward so that younger people who are otherwise eligible for DACA could apply for the program. However, the new rule maintains the requirement that the applicant have entered the U.S. and resided continuously since June 15, 2007.
In a change from the rule proposed in 2021, the final rule released Wednesday did not follow through with a plan to “decouple” work authorization, or the Employment Authorization Document (EAD) application, filed on Form I-765, from the principal DACA application, filed on Form I-821D. The 2012 DACA program required that the DACA application be filed at the same time as the work authorization application; immigration advocates worried that making the application for work authorization optional would put applicants at risk of losing their work permits while waiting for the USCIS EAD backlog to clear.
The final DACA rule also clarifies that “expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under State laws” will not automatically make someone ineligible for DACA.
The rule also clarifies that work authorization received through DACA ends only when someone’s DACA status is terminated, but not merely if removal (deportation) proceedings are started.
Despite the release of the new rule, the DACA program remains in legal peril at the Fifth Circuit Court of Appeals. The federal appeals court in New Orleans, Louisiana heard oral arguments in early July in response to a ruling by a federal judge in Texas calling DACA illegal and barring new applicants from the program in July 2021.
The Fifth Circuit, widely considered to be the most conservative appeals court in the nation, could rule on the fate of DACA at any time. Many observers predict the court will rule against Dreamers, sending the case to the U.S. Supreme Court.