Deferred Action for Childhood Arrivals (DACA) Implementation under Final Rule

The Department of Homeland Security recently published a final rule in the Federal Register, taking a major step to safeguard the Deferred Action for Childhood Arrivals (DACA) program. While the fight to uphold DACA is in litigation, limited implementation began on October 31, 2022.

What is DACA?

DACA or Deferred Action for Childhood Arrivals, is a policy that protects around 800,000 young people known as “Dreamers” who entered the United States unlawfully as children. It was announced on June 15, 2012, by President Barack Obama and expanded in November of 2014. DACA is an American immigration policy that permits certain undocumented immigrants who entered the country as minors to receive a two-year deferred period from deportation. The program does not grant them official legal status or a pathway to citizenship, but it does allow them to apply for a driver’s license, social security number, and work permit. DACA is a youth-led movement fighting for permanent protections, access to higher education, and full integration for undocumented young people.

To be eligible, applicants had to have arrived in the United States before the age of 16, have lived in the country since June 15, 2007, and be no older than 30 when the Department of Homeland Security implemented the policy in 2012. DACA applicants must provide proof of living in the United States at the specified times, proof of education, and confirmation of their identities. They also have to pass background, fingerprint, and other biometric checks that record identifying biological characteristics.

DACA under Final Rule

The Deferred Action for Childhood Arrivals (DACA) program was preserved and strengthened by the Department of Homeland Security's final regulation, which went into effect on Monday, October 31, 2022. This means that pursuant to the final rule, the U.S. Citizenship, and Immigration Services (USCIS) will accept and process renewal DACA requests and accompanying requests for employment authorization (EAD), consistent with court orders and an ongoing partial stay. Additionally, it upholds the Department of Homeland Security’s (DHS) policy that DACA does not grant a legal status but rather permits applicants to be regarded as "lawfully present" for several purposes, it also keeps the current threshold criteria for DACA applicants in place. Due to the partial stay of the July 16, 2021, injunction handed down by U.S. District Court for the Southern District of Texas, DHS is not permitted to grant new or initial DACA applications and related employment authorization but can continue to grant renewal requests under this final rule. Those with pending DACA renewal applications, do not need to reapply.

According to Alejandro Mayorkas, the Secretary of Homeland Security: "Ultimately, we need Congress to swiftly adopt legislation that gives Dreamers the long-term security they deserve." U.S. Citizenship and Immigration Services Director Ur M. Jaddou further stated that “Implementation of the DACA final rule illustrates USCIS’s continued commitment to Dreamers,” and added, “While court orders prevent us from adjudicating requests from initial applicants, we will continue to carry on the important work of renewing and continuing protections for current DACA recipients, as outlined in this final rule.”

The final rule is the result of a thorough review that considers more than 16,000 comments received during the public comment period. It codifies existing DACA policy with minor changes and replaces the guidance provided in the Napolitano memorandum from 2012.

To summarize, the final rule affirms that:

• The final rule will maintain the validity of current DACA recipients' deferred action, employment authorization, and advance parole.

• DACA is not a legal status, but recipients are considered "lawfully present" for certain purposes.

• Non-citizens who meet the requirements, pass the necessary national security and public safety screenings may obtain deferred action and renewable two-year work authorization. However, the Department is currently barred from granting deferred action to any new DACA recipients due to pending litigation.

What does this mean for current DACA recipients?

The Texas court order allows current DACA holders to continue benefiting from DACA and work permits remain valid. Aside from that, recipients will be protected from deportation, given a Social Security number, and may be eligible for other DACA-related benefits.

DACA Renewal

Renewals should be filed between 120 and 150 days before the DACA expiration date to be accepted but the application will not be processed until 150 days before the expiration of the DACA. USCIS is not accepting applications from previous DACA recipients whose status has lapsed for more than a year. You can still apply, but your application will be denied unless the government changes its policy.

Travel on Advance Parole

In general, DACA holders are not able to travel outside of the United States without specific travel authorization issued by the U.S. government known as the Advance Parole. USCIS continues to process and issue advance parole to current DACA holders. If you have received advance parole, it is valid and you may travel and re-enter the United States using the document as long as your DACA remains current. However, consultation with an attorney or accredited representative about individual risks before traveling is highly recommended.

If you have questions about DACA (Deferred Action for Childhood Arrivals) or any immigration issues, contact us at intro@elizeelawfirm.com or you may give us a call at (305) 371-8846. We provide our clients with quality service in their particular situations to ensure they get the right advice to maximize the chance for a successful outcome.