DHS Publishes Final Rule on DACA

On August 24, 2022, Secretary Alejandro Mayorkas announced that the Department of Homeland Security (DHS) has issued a final rule on the Deferred Action for Child Arrivals (DACA) program. In September 2021, the DHS proposed the rule seeking to “preserve and fortify” the DACA program, a program initially established during the Obama Administration. After receiving thousands of comments during the public comment period, the final rule codifies the existing DACA policies and introduces small amendments to the DACA program. The final rule takes effect on October 31, 2022.

Changes to the DACA

The final rule rescinds the June 15, 2012 Napolitano Memorandum that established the DACA program, but it codifies the existing DACA policies established in the memorandum. The new rule maintains the current eligibility requirements, the renewal process, and the work authorization process for DACA applicants. The rule also confirms that DACA is not a lawful status, but instead DACA recipients are considered lawfully present for certain purposes.

However, the rule amends some of the DACA termination procedures set forth in the 2012 memorandum. First, a DACA recipient’s departure from the United States without advance parole will not automatically result in termination of his or her DACA. Instead, the U.S. Citizenship & Immigration Services (USCIS) will have discretion in terminating a recipient’s DACA in these situations. Second, the USCIS will issue a “notice of intent to deny to terminate” and will provide the recipient with a chance to respond before any discretionary termination of their DACA. Lastly, if a “notice to appear” is issued to a DACA recipient, the USCIS will not automatically terminate a recipient’s DACA.

Looking Ahead: The Future of DACA

Although the codification of the DACA policies provides a greater level of protection for the DACA program, the new rule will not change the current policy for initial DACA applicants while the 2021 injunction issued by the U.S. District Court for the Southern District of Texas remains in effect.

For more than a year, the Texas injunction has prevented the USCIS from adjudicating initial DACA applications and accompanying requests for employment authorization. However, the Texas injunction was appealed to the Fifth Circuit Court of Appeals and in July 2022 the court heard oral arguments in the case. The appellate court is expected to issue their rule on the injunction in the next weeks or months.

In a separate court case (Batalla Vidal v. Mayorkas) filed in the U.S. District Court for the Eastern District of New York, a group of plaintiffs requested a motion for limited relief for initial DACA applicants. The motion asked the court to provide limited relief to the over 80,000 first-time DACA applicants whose applications have been pending since the Texas court issued the injunction. Specifically, the plaintiffs requested adjudication of the first-time DACA applications that were filed before the injunction was issued, as well as limited work authorization for first-time DACA applicants as they wait for the resolution of the injunction. Unfortunately, last month the court denied the plaintiffs’ motion for limited relief.

Given the status of these court cases, the situation for first-time DACA applicants remains unchanged. Any first-time DACA applicants can continue to file DACA applications, but the USCIS will not be able to adjudicate the applications while the Texas injunction remains in effect.

We will continue to monitor any developments related to the DACA program and we will notify our clients of any changes that may impact them.