The Department of Homeland Security (DHS) is publishing a proposed regulation to establish the Deferred Action for Childhood Arrivals (DACA) program through the administrative process of notice and comment rulemaking. The proposed rule will be published in tomorrow’s Federal Register; an advance copy is now available. The agency will accept public comments for 60 days after publication of the proposal.
The proposed DACA rule has no immediate impact on current or potential DACA beneficiaries.
The DHS proposal is consistent with and responsive to President Biden’s January 20, 2021 memorandum, “Preserving and Fortifying Deferred Action for Childhood Arrivals,” in which the President requested the agency take action to maintain and strengthen DACA. The new proposed rule is also responsive to the July 16, 2021 federal district court decision that vacated the DACA program, in part on the basis that it did not go through notice and comment rulemaking; the district court also held that the DACA program substantively violated U.S. immigration law.
The July 16 court order vacated the DACA program, but stayed the order for current DACA beneficiaries, temporarily preserving the program for these existing grantees. DHS continues to process DACA benefits for current DACA beneficiaries only. Meanwhile, the Biden Administration has appealed the July court decision to the Fifth Circuit.
A closer look at the proposal
The new proposed rule preserves the main aspects of the original DACA program created by DHS in 2012. This includes its individual eligibility requirements, the discretionary nature of DACA adjudication, and the inability to file an appeal or motion to reopen after a denial.
The proposal also contains some modifications to the current DACA program, including some changes to the filing and fee requirements, designed to provide more flexibility and lessen fees for applicants who do not wish to apply for work authorization. The new rule would also automatically terminate a DACA-based employment authorization document (EAD) upon termination of a grant of DACA, which can occur upon issuance of a Notice to Appear in removal proceedings or upon departure from the United States without advance parole.
The rule also explicitly and specifically codifies the longstanding principles that DACA recipients are lawfully present in the United States for the purpose of Social Security benefits, and that they do not accrue unlawful presence while under DACA protection.
What this means for employers and foreign nationals
The DACA proposal has no immediate impact on current or prospective DACA beneficiaries or their employers. Current beneficiaries may continue to apply for and receive DACA and related work authorization extensions from DHS. First-time DACA applications will be accepted by DHS, but will not be adjudicated at this time. Employers should not change any employment verification practices related to current DACA employees.
What’s next for the proposed rule and for DACA
After the proposal is published in the Federal Register, the public will have 60 days to comment. Given the sensitivity of the DACA program, a large number of comments in response to the proposal is expected. If a final regulation is issued, legal challenges are still possible. The existing DACA program was invalidated in July on both procedural and substantive legal grounds. DHS engagement in notice and comment rulemaking may address the procedural deficiencies identified by the court, but the substantive legal issues could persist. The Biden Administration is currently appealing the July district court decision to the Fifth Circuit and will address the lower court’s substantive legal concerns in its submissions to the appeals court.
Relatedly, several legislative proposals to establish DACA protection by statute remain the subject of continued debate in Congress. Outcome of the bills is uncertain. DACA protection is currently being discussed in the ongoing reconciliation bill debate related to the FY 2022 federal budget, though a recent opinion from the parliamentarian of the U.S. Senate took the position that a legalization program for DACA beneficiaries and other Dreamers should not be included in reconciliation legislation. In issuing the new proposed DACA regulation, DHS Secretary Alejandro Mayorkas said that although the proposed DHS rule is an important step to protect Dreamers, “only Congress can provide permanent protection.”