Biden Administration Proposes DACA Regulation

The U.S. Department of Homeland Security (DHS) has issued a notice of proposed rulemaking intended to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) program. DACA was initially created in 2012 by the Obama Administration, and it provides certain temporary protections and benefits to qualifying undocumented immigrants who were brought to the United States as minors. One of the reasons for the proposed rule is to address issues raised by some federal courts regarding the legality of DACA.

Threshold Criteria to Qualify

The proposed rule uses the same basic threshold criteria to qualify as the 2012 version of the rule. Assuming the rule is implemented, to qualify, the applicant would need to meet ALL of the following requirements:

  • Came to the United States under the age of 16
  • Continuously resided in the United States from 15.Jun.2007, through the date the DACA application is filed
  • Been physically present in the U.S. on both 15.Jun.2012, and on the date the DACA request is filed
  • Graduated or obtained a certificate of completion from high school, obtained a GED certificate, be currently enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
  • Not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, or otherwise pose a threat to national security or public safety
  • Been born on or after 16.Jun.1981

Procedural Changes

In the proposed rule, the substantive benefits and limitations of DACA are largely left unchanged. The only real changes are procedural, such as making applications for employment authorization under DACA optional and creating a DACA-specific employment authorization category. The proposed rule would also automatically terminate employment authorization upon the termination of a grant of DACA.

Use of Formal Rulemaking Process

When then-President Obama created DACA, he did so by issuing a legal memorandum. By enacting the program via a memo, he bypassed the notice-and-comment rulemaking process, which has made the DACA program more susceptible to legal challenges. With the issuance of this proposed rule, the Biden Administration strives to place DACA on more solid legal footing. The public is being provided 60 days to comment on the proposed rule. The DHS will then have to review and consider these comments before a final rule can be released.


When DACA was initially unveiled, the goal was to provide temporary protections for undocumented immigrants who were brought to the United States as children, with the idea being that Congress would act to provide a permanent solution. Now, nearly a decade later, it appears we are no closer to getting Congress to act than we were in 2012. At the very least, however, assuming this rule is enacted, it should provide a stronger layer of protection for this population of foreign nationals seeking to live out the American dream.


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