On August 24, 2022, the U.S. Department of Homeland Security (DHS) announced the issuance of a final rule, effective October 31, 2022, that seeks to maintain and strengthen the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens that arrived in the United States as children before turning 16 years old, with the purpose of deferring their removal and allow them an opportunity to get a renewable, two-year work permit.
The final rule codifies existing DACA policy, with limited changes, and replaces the DACA policy that was originally set out by former Secretary of Homeland Security, Janet Napolitano, in a 2012 Memorandum. The final rule maintains DACA’s three main components:
maintenance of the existing threshold criteria for DACA that was originally set out in the 2012 Memorandum;
preservation of the existing process for DACA requestors to seek work authorization; and
affirmation of the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.
The final rule will become effective on October 31, 2022.
On July 16, 2021, the U.S. District Court for the Southern District of Texas held that the 2012 DACA policy “is illegal.” The Court, among other things, vacated the June 15, 2012 DACA memorandum issued by Secretary Napolitano and issued a permanent injunction prohibiting the government’s continued administration of DACA. The Court, however, temporarily stayed its order vacating the DACA memorandum and its injunction with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests.
Consistent with the Court’s order, DHS will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, pursuant to the order, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization, although it will continue to grant or deny renewal DACA requests, according to existing policy.