New DACA Final Rule Goes Into Effect

On Monday, October 31, 2022, the Department of Homeland Security’s final rule to preserve and fortify Deferred Action for Childhood Arrivals (DACA) went into effect. The Biden administration decided to do this to satisfy the main point of contention brought by its opponents that the program was not legal. The final rule’s implementation means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. Previously, DACA was based on a policy memorandum that then-DHS Secretary Janet Napolitano issued on August 15, 2012.

Since its inception in 2012, DACA has allowed over 800,000 young people to remain with their families in the only country many of them have ever known and continue to contribute to their communities in the United States.

The problem is this really won’t do anything for the DACA kids in the short run. Under the final rule, USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients, but due to ongoing litigation, USCIS will continue to accept but cannot process initial DACA requests.

The final rule affirms that:

• Current DACA recipients’ deferred action, employment authorization, and advance parole will continue to be recognized as valid under the final rule.
• DACA is not a form of lawful status but DACA recipients are considered “lawfully present” for certain purposes.
• Non-citizens who meet eligibility criteria, clear all national security and public safety vetting, and are found to merit a favorable exercise of discretion may be granted deferred action and obtain renewable two-year work authorization. Given pending litigation, however, the Department is currently barred from granting deferred action to any new DACA recipients.

On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. On Oct. 14, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule.

Current grants of DACA and related Employment Authorization Documents are valid, and USCIS will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule. We are advising all initial DACA applications to hold off on filing those applications as USCIS can not adjudicate them. There is no reason to give USCIS your filing fee if they can't do anything about it.