Proposed Rule Separating Work Authorization from DACA Applications Worries Some Advocates

As the Department of Homeland Security (DHS) nears completion of its final regulation to protect Dreamers from deportation, immigration advocates are concerned about a provision in the draft rule which decouples work authorization from a grant of Deferred Action for Childhood Arrivals (DACA).

The DHS released its proposed rule in September 2021, which is nearly identical to the DACA program implemented in 2012. DACA 2012 shielded undocumented young people from removal, while also granting them work authorization in the United States.

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While the 2012 (and current) DACA program requires that the request for DACA, made on Form I-821D, be filed at the same time as an I-765 application for employment authorization, the proposed rule decouples the DACA application from the work authorization application, making the application for work authorization optional.

Immigration advocates have backed the rulemaking process, and hope the final regulations will strengthen DACA’s legal standing after a series of lawsuits and setbacks over the years, culminating in a federal judge’s ruling last year that the original program enacted in 2012 was illegal. However, advocates also raised concerns about the optional work authorization proposal, noting that separating the employment authorization option from the DACA grant could make it easier for future administrations to eliminate.

Advocates also point out that the employment authorization backlog (or “EAD” backlog), has exploded in recent years, reaching a staggering 1.48 million pending EAD applications by the end of FY2021. Separating DACA from employment authorization could put applicants at risk of losing their work permits and their jobs while waiting for EAD renewals to process, especially given that the validity dates for the work permit will not exceed the dates granted by DACA.