United States: DHS Issues Final DACA Regulation, But Court Challenges Are Possible

The regulation was promulgated in response to President Biden’s January 20, 2021 memorandum, “Preserving and Fortifying Deferred Action for Childhood Arrivals,” in which the President requested the agency take action to maintain and strengthen DACA. The new rule is also responsive to a July 16, 2021 federal district court decision that vacated the DACA program, in part on the basis that it did not go through notice and comment rulemaking; the district court also held that the DACA program substantively violated U.S. immigration law. That order vacated the DACA program, but stayed the order for current DACA beneficiaries, temporarily preserving the program for these existing grantees. DHS continues to process DACA benefits for current DACA beneficiaries only. Meanwhile, the Biden Administration has appealed the July 2021 court decision to the Fifth Circuit.

The final regulation preserves the main aspects of the original DACA program created by DHS in 2012. This includes its individual eligibility requirements (which are unchanged and do not expand the pool of eligible applicants), basic application procedures, the discretionary nature of DACA adjudication, and the inability to file an appeal or motion to reopen after a denial.

The rule contains some modifications to the current DACA program, including a provision that would automatically terminate a DACA-based employment authorization document (EAD) upon termination of a grant of DACA. It clarifies that, consistent with longstanding DACA policy, expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under state laws are not considered automatically disqualifying convictions. The rule also explicitly and specifically codifies the longstanding principles that DACA recipients are lawfully present in the United States for the purpose of Social Security benefits, and that they do not accrue unlawful presence while under DACA protection.

Current DACA beneficiaries will retain their grants of deferred action and other benefits through their existing expiration dates, unless revoked on other grounds. They are not required to apply for new DACA grants, but future applications for renewal will be governed by the new rule. Until the new regulation takes effect or until further notice, current DACA beneficiaries can apply to renew their benefits under the terms of the July 2021 court injunction referenced above. Current DACA beneficiaries whose benefits will expire in the near future should plan to submit their renewal applications as soon as possible under existing procedures.

If fully implemented, the rule would permit foreign nationals to submit and USCIS to adjudicate initial applications for DACA, which had been enjoined for several years. However, under the July 2021 court order, USCIS may accept initial applications but is prohibited from adjudicating them. It is not yet clear how USCIS will address new or pending initial applications in the event that the agency is permitted to fully implement the rule. Foreign nationals with pending initial applications or plans to file them should prepare for the possibility that the rule could be suspended by a court and possibly invalidated.

Fragomen is closely monitoring the new regulation and court activity concerning DACA. Further client alerts will be issued as developments occur.