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DHS Final Rule on DACA

A photograph of a monarch butterfly on a yellow flower.

Image by Bill Barlow from Pixabay

On Monday, October 31, 2022, the Department of Homeland Security (DHS) published a final rule on the Deferred Action for Childhood Arrivals (DACA). It preserves and fortifies the program through codifying existing DACA policy and formal regulation while it is still subject to litigation in court. Previously, the DACA program was only based on a policy memorandum issued by then-DHS Secretary Janet Napolitano on August 15, 2012, nearly a decade from the 10/31/22 final rule. The DACA program has allowed over 800,000 young people to stay in the US with their families. For many DACA recipients, this country is the only one they have ever known. 

With this final rule, DHS can make this implement DACA for current recipients (deferred action, work authorization, and advance parole). However, due to ongoing litigation, USCIS will continue to accept DACA requests, but cannot process initial DACA requests at this time. USCIS will accept and process renewal DACA requests with accompanying Employment Authorization Documents (EADs) and advance parole for current “Dreamers”. 

The final rule affirms that while DACA is not a form of lawful status, but DACA recipients are “lawfully present”. Non-citizens may be granted deferred action and renewable two-year work authorization through specific eligibility criteria if they clear all national security and public safety vetting, and are found to “merit a favorable exercise of discretion”.

DACA has been through waves of court battles. On October 5th, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. However, the Fifth Circuit preserved partial stay and remanded the case back to the district court for further proceedings regarding the new DACA rule. On October 14th, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule. 

Ultimately, it falls on Congress to pass legislation that permanently protects DACA recipients, according to Secretary of Homeland Security, Alejandro N. Mayorkas.