DHS Issues Final Rule to Preserve DACA

New regulation covers only those already in the program, which is still closed to new entrants

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DHS Issues Final Rule to Preserve DACA

​The Biden administration announced a final rule codifying the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants brought to the U.S. as children, a move aimed at strengthening the program against legal challenges.

The regulation, announced Aug. 24, would take effect Oct. 31 and would temporarily allow over 611,000 immigrants to live and work in the U.S. legally without fear of deportation. The program has been governed by an executive memo since its inception in 2012.

We've rounded up articles from SHRM Online and other trusted outlets on the news. 

Rules Remain the Same

The regulation issued by the Department of Homeland Security (DHS) will maintain the long-standing eligibility rules for DACA, which include requirements that applicants prove they arrived in the U.S. by age 16 and before June 2007; studied in a U.S. school or served in the military; and lack any serious criminal record.

In addition to continuing to be eligible for a renewable, two-year work permit, DACA recipients will be considered to be "lawfully present" in the U.S. for the purposes of other immigration applications.

(CBS News

Renewals Only

The rule will apply only to DACA renewal requests, not to new applications, due to a July 2021 injunction from the U.S. District Court for the Southern District of Texas, which barred the granting of new requests for DACA status. The 5th U.S. Circuit Court of Appeals is expected to issue an opinion on DACA's legality later this year, which could reopen the program to new applications. If not, the Biden administration could appeal the ruling to the U.S. Supreme Court.

(Bloomberg Law

Procedural Fix

The issuance of the final rule addresses the criticism that DACA had not gone through the formal rulemaking process, but other critics have questioned the authority to initiate the program at all, finding that only Congress has that authority. Experts said the regulation will help the Biden administration more successfully take on procedural challenges to DACA, but it won't prevent more-substantive lawsuits.

(SHRM Online) 

Roller Coaster Ride

The DACA program has been in a precarious limbo ever since former President Donald Trump announced the decision to rescind it in 2017. It's been kept alive by the courts since then and had most recently been fully reinstated in December 2020.

(SHRM Online

Some Employers Are Still Unsure About Hiring 'Dreamers'

With the ultimate fate of DACA up in the air, many employers are unsure about hiring those from this diverse talent pool, commonly referred to as "Dreamers."

(SHRM Online)

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