DHS Initiates Limited Implementation of DACA under Final Regulation

WASHINGTON— The Department of Homeland Security (DHS) commenced the implementation of its final rule (PDF) designed to safeguard and strengthen Deferred Action for Childhood Arrivals (DACA) on Monday, October 31, 2022. This final rule establishes DACA on a formal regulatory framework, enhancing the program's resilience during ongoing legal challenges. Formerly, DACA relied on a policy memorandum issued by then-DHS Secretary Janet Napolitano on August 15, 2012. Since its inception, DACA has enabled over 800,000 young individuals to remain in the only country many of them have ever known, contributing to their communities in the United States.

Key Points of the Final Rule:

  1. Continued Acceptance and Processing:

    • USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for existing DACA recipients.
    • Due to existing litigation, USCIS will accept initial DACA requests but cannot process them at this time.
  2. Preserving and Strengthening DACA:

    • Secretary of Homeland Security Alejandro N. Mayorkas emphasized the final rule's intent to preserve and fortify DACA to the fullest extent possible.
    • Urgent congressional legislation is called for to provide Dreamers with permanent protection.
  3. Commitment to Dreamers:

    • USCIS Director Ur M. Jaddou reaffirmed USCIS's commitment to Dreamers, highlighting the agency's focus on renewing and maintaining protections for current DACA recipients.
  4. Rule Review and Public Comment:

    • The final rule results from a comprehensive review, considering over 16,000 public comments received during the comment period.
    • It codifies existing DACA policy with limited changes, replacing the 2012 Napolitano memorandum (PDF).
  5. Affirmations Under the Final Rule:

    • Current DACA recipients' deferred action, employment authorization, and advance parole remain valid.
    • DACA is not a form of lawful status, but recipients are considered "lawfully present" for specific purposes.
    • Pending litigation restricts the Department from granting deferred action to new DACA recipients.

Recent Legal Developments:

  • The U.S. Court of Appeals for the Fifth Circuit affirmed the July 2021 decision declaring the 2012 DACA policy unlawful but preserved the partial stay.
  • The U.S. District Court for the Southern District of Texas extended its injunction and partial stay of the DACA final rule on Oct. 14, 2022.

Conclusion: Current grants of DACA and related Employment Authorization Documents remain valid, and USCIS will accept and process renewal DACA requests and associated requests for employment authorization under the final rule.

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