DHS issues Notice of Final Rule on DACA
/On August 30, 2022, the U.S. Department of Homeland Security (DHS) issued a notice of final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.
The rule continues the DACA policy as announced in the 2012 Napolitano Memorandum and is based on established USCIS practice. The rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.
A product of careful review and in response to the more than 16,000 comments received during the public comment period, the final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:
Maintains the existing threshold criteria for DACA;
Retains the existing process for DACA requestors to seek work authorization; and
Affirms 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 is effective Monday, October 31, 2022. However, while a July 16, 2021 injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.
