The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows eligible beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States.
The rule, effective October 31, 2022, continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:
- Maintains the existing threshold criteria for DACA;
- Retains the existing process for DACA requestors to seek work authorization; and
- 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.
DHS noted that it may grant DACA renewal requests under the final rule but cannot grant initial DACA requests and related employment authorization due to a court injunction that remains in partial effect.
Advocates, including representatives from the American Immigration Lawyers Association and the American Immigration Council, hailed the Biden administration’s “positive step” but called for Congress to act also.
- Final rule (advance copy), DHS
- “DHS Issues Regulation to Preserve and Fortify DACA,” DHS news release, Aug. 24, 2022
- “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Napolitano memorandum), June 15, 2012
- Order of injunction, State of Texas v. United States, U.S. District Court for the Southern District of Texas, July 16, 2021
- “Biden Administration Moves to Shore Up DACA Protections But Congress Needs to Act,” press release, American Immigration Lawyers Association, Aug. 24, 2022