DHS begins limited implementation of DACA under the final rule

WASHINGTON– On Monday, October 31, 2022, the Department of Homeland Security’s Final Rule (PDF) Preserving and Strengthening Delayed Actions for Child Arrivals (DACA) went into effect. The implementation of the final rule means that DACA is now based on a formal regulation, preserving and strengthening the program while the program remains subject to litigation in court. Previously, DACA was based on a policy memorandum issued by then-DHS Secretary Janet Napolitano on August 15, 2012. Since its inception in 2012, DACA has enabled over 800,000 young people to stay with their families in the only country many of them have ever known and continue to contribute to their communities in the United States.

Under the final rule, USCIS will continue to accept and process applications for deferred action, work permits, and early parole for current DACA recipients. Due to ongoing litigation, USCIS continues to accept initial DACA requests but is unable to process them.

“This last rule is our effort to preserve and strengthen DACA as much as possible,” he said Minister of Internal Security Alejandro N. Mayorkas. “Ultimately, we need Congress to urgently pass legislation that will give dreamers the enduring protections they need and deserve.”

“The implementation of the final DACA rule demonstrates USCIS’ continued commitment to Dreamers,” he said Ur M. Jaddou, Director of the US Citizenship and Immigration Service. “While court orders prevent us from adjudicating on applications from first-time applicants, we will continue the important work of renewing and continuing protection for current DACA recipients as outlined in this final rule.”

The final rule is the result of a careful review that took into account more than 16,000 comments received during the public comment period. It codifies the existing DACA guideline with limited changes and supersedes the guidance set out in the 2012 Napolitano Memorandum (PDF).

The last rule confirms that:

  • Deferred action, employment approvals, and early parole by current DACA recipients 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 the eligibility criteria, pass all national and public security clearances, and are found to have positive discretion may be granted deferred action and a renewable two-year work permit. However, with litigation pending, the Department is currently barred from granting deferred measures to new DACA recipients.

On October 5, the U.S. Circuit Court of Appeals for the Fifth Circuit affirmed a July 2021 decision by the U.S. District Court for the Southern District of Texas declaring the 2012 DACA rule illegal. However, the Fifth Circuit maintained the partial stay granted by the District Court in July 2021 and remanded the case back to the District Court for further processing of the new DACA rule. On October 14, the US District Court for the Southern District of Texas entered an order extending its injunction and partial stay of the final DACA rule.

Current issuances of DACA and related employment authorization documents are valid, and USCIS will accept and process DACA renewal applications and accompanying employment authorization applications in accordance with the final rule.

Visit the USCIS DACA website for more information.

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