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DHS Issues Regulation to Preserve and Fortify DACA

August 31, 2022
Hon. Robert Vinikoor (Ret.)

On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrival (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.  The final rule is effective Monday, October 31, 2022.  Since its inception in 2012, DACA has allowed over 800,000 young people to remain in the only country many of them have ever known, with their families.

The final rule codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 memorandum.  The final rule (1) maintains the existing threshold criteria for DACA; (2) retains the existing process for the DACA requestor to seek work authorization; and (3) affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

On July 16, 2021, a Texas federal court ruled that DACA was illegal and ordered a freeze on all new applicants while the policy’s merits are decided in court.  While this decision is still pending on appeal with the 5th Circuit Court of Appeals, the new rule which was formally registered in the government’s code of federal regulations, is seen as an attempt to survive the legal challenges that the program faces at the 5th Circuit.  Only time will tell whether codifying the DACA program in a regulation is enough to satisfy the courts’ concerns about the legality of the program.  At the moment, it appears that DHS still does not believe it can approve initial DACA applications, despite this new rule.

What does this mean for DACA applicants?

As of now, the Texas court order allows current DACA holders to continue benefiting from and extending DACA and their work permits remain valid.  USCIS will not, however, approve new or pending initial DACA applications, but eligible applicants can continue to submit initial DACA applications for possible future adjudication.  The main benefit to this new rule is that it will make it harder for a future administration to cancel the DACA program.

If you are a current DACA beneficiary or have a question concerning your immigration options moving forward, please feel free to contact the attorneys at Minsky, McCormick & Hallagan, P.C. at 312-427-6163, and we would be happy to meet with you concerning your situation.

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