DACA Implemented as a Regulation

On October 31, 2022, a new final rule on Deferred Action for Childhood Arrivals (DACA) went into effect. The implementation of this final rule means that DACA – a program that provides certain temporary protections and benefits to qualifying undocumented immigrants who were brought to the United States as minors – is now based on a formal regulation, rather than merely on an executive order.

Background on DACA

The Obama Administration initially implemented DACA in 2012 as an executive order. The program allows qualifying undocumented immigrants who came to the United States as children to obtain temporary deferrals of removal (i.e. deportation) proceedings, and to obtain work authorization. Over the years, the program has faced numerous legal challenges and, in 2020, a federal judge halted processing of new DACA applications. One key reason cited by the judge for invalidating DACA was that the program had been enacted without first going through the formal regulatory process. This final rule implemented by the Biden Administration aims to address this purported deficiency.

Overview of DACA Final Rule

Some of the key provisions of the final rule include the following:

• Although DACA recipients are considered “lawfully present” for specific purposes, DACA is not considered a form of lawful status.
• Current DACA recipients do not need to request DACA anew under the new rule; rather, they may retain their current DACA grant.
• Deferred action and a renewable two-year work authorization is permitted in cases where the foreign national meets certain eligibility criteria, clears all national security and public safety screening, and where the favorable exercise of discretion is warranted.
• USCIS will continue to process applications filed by current DACA recipients for deferred action, employment authorization, and advance parole. Due to ongoing litigation, however, the USCIS cannot process initial DACA requests.

Conclusion

While the implementation of this final DACA rule is helpful, it still faces legal challenges and fails to provide permanent protections for all individuals brought to the U.S. as children. Realistically, the only way to resolve this issue is for Congress to take action. Given the division in Washington, it seems unlikely that a compromise will be reached in the foreseeable future.

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