USCIS Proposes Redo for DACA Program

​The long-beleaguered Deferred Action for Childhood Arrivals program (DACA)—originally created by a policy memo in 2012—will be re-established through regulation, U.S. Citizenship and Immigration Services (USCIS) announced.

USCIS issued the proposed rule Sept. 28 and is allowing for a 60-day public comment period.

DACA protects over 600,000 young immigrants, known as Dreamers, from deportation and provides them work authorization. The program has been embroiled in a yearslong battle over its legality and is currently in limbo after a federal judge in Texas found it to be unlawful in July.

The proposed rule aims to address the judge's concerns, but mainly would codify the existing DACA policy. The program would carry the same eligibility criteria, including the stipulation that individuals must have arrived in the U.S. before their 16th birthday; been born on or after June 16, 1981; have continuously resided in the U.S. since June 15, 2007; are currently in school or have graduated or honorably served in the military; have not been convicted of a felony; and do not pose a threat to national security or public safety.

The program would continue to grant two years of deportation protection and a two-year work permit for a $495 fee. And recipients could leave the country under a program known as advance parole, which gives them permission to return.

Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, an advocacy group in Washington, D.C., explained that the proposal creates formal regulatory language for granting DACA requests, and for removing someone from the program.

The proposed rule also attempts to address some of the concerns raised by U.S. District Judge Andrew Hanen, of the Southern District of Texas. DACA applicants could decide to pay a lower fee of $85 to only receive deportation protection without an accompanying work permit, which has been one of the more controversial aspects of the program.

"The regulation makes work authorization no longer a 'part of' DACA—but still available," Reichlin-Melnick said. "The regulation would sever deferred action from automatic employment authorization, allowing applicants to apply for just DACA if they wanted, without the work permit. USCIS is basically recognizing that the work permit portion of DACA could potentially be struck down, and saying that they think if that happens, they may still be able to protect people with DACA from being arrested and deported."

The proposed rule would not change the validity of anyone's current DACA work authorization.

"Today, there are more than 400,000 DACA recipients currently working in the United States—over half are essential workers and 41,700 are in health care," said Candy Marshall, president of TheDream.US, a college and career success organization for undocumented students.

"Codifying the DACA program will enable employers across the country to retain current employees and to access this growing talent pool as they seek to rebuild after the pandemic," said Marshall, formerly the chief human resources officer at the Bill & Melinda Gates Foundation.

Congressional Fix

Judge Hanen concluded that the Obama administration circumvented procedural requirements when initially implementing the DACA program via agency memo, rather than going through the formal regulatory process. But the judge also questioned the agency's authority to implement the program at all, finding that only Congress has that authority. The notice of proposed rulemaking still does not resolve the issue over congressional authority.

Ralph Hua, a partner in the Seattle office of Fisher Phillips, said the regulation will help the Biden administration more successfully take on procedural challenges to DACA, but it won't prevent more substantive lawsuits.

"Going through the formal rulemaking process is a direct response to the federal district court's decision in July holding the DACA program unlawful for procedural defects," he said. "After the lengthy formal rulemaking process, however, lawsuits challenging the actual merits of the DACA regulation will almost certainly follow."

Stephen Yale-Loehr, an immigration law professor at Cornell University Law School in Ithaca, N.Y., said, "Texas and other conservative states will still argue that DACA is an end-run around congressional authority, no matter how it's issued."

Department of Homeland Security Secretary Alejandro Mayorkas said in a statement that the proposal was an important step to preserve DACA, but "only Congress can provide permanent protection."

In the meantime, Hua recommended DACA holders renew their status and employment authorization as early as permissible. "The July court ruling does not prohibit DACA renewals," he said. "Existing employees with DACA status can continue to renew employment authorization for the foreseeable future. Months from now, if the new DACA regulation is challenged on the merits and suspended by federal court, it is possible that even current DACA holders may be affected if the court injunction covers the entire regulation."

Background

The DACA policy was established June 15, 2012. Since that time, more than 825,000 people have been protected by the policy.

President Joe Biden signed an executive order upon taking office in Jan. 2021 to "preserve and fortify" the program after former President Donald Trump had sought to terminate it during his term. The Trump administration's efforts were hung up in litigation after it was ruled that the action was not properly carried out.  

On July 16, 2021, the U.S. District Court for the Southern District of Texas held that the DACA policy "is illegal," and issued a permanent injunction prohibiting the government's continued administration of it. The court temporarily stayed its order, allowing USCIS to continue to accept the filing of both initial and renewal requests for DACA, as well as requests for employment authorization. However, the agency is prohibited from granting new DACA requests and employment authorization, while it can continue to grant renewal requests. The Biden administration has appealed the Texas court ruling.

"Many DACA recipients report that deferred action—and the employment authorization that DACA permits them to request—has allowed them to obtain their first job or move to a higher paying position more commensurate with their skills," Mayorkas said. "DACA recipients are employed in a wide range of occupations, including management and business, education and training, sales, office and administrative support, and food preparation; thousands more are self-employed in their own businesses. They have continued their studies, and some have become doctors, lawyers, nurses, teachers, or engineers. Many of them have helped care for their communities on the frontlines during the COVID-19 pandemic."