Biden Administration Issues a Notice of Proposed Rulemaking to Preserve and Fortify DACA

The U.S. Department of Homeland Security (DHS) today announced a notice of proposed rulemaking (NPRM) that would preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy. If finalized as proposed, this rule would codify the existing DACA policy with a few limited changes.

The proposed rule will have a 60-day public comment period which begins once published on Tuesday, September 28.


Highlights of the Rule if Finalized:
  • There would be changes to the current filing process and fees.
    • Form I-765, Application for Employment Authorization would be optional;
    • USCIS would charge a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
    • the current cumulative fees for both a DACA request and optional employment authorization would remain $495, absent any separate fee increase for the Form I-765 generally
  • The NPRM provides clarity regarding:
    • termination of DACA and employment authorization, including when DHS will provide an opportunity for the DACA recipient to respond before a DHS decision;
    • DHS’s longstanding information sharing and use policy for information provided by DACA requestors


Still, as members of the Biden Administration have reinforced from the beginning, only Congress can ensure a permanent solution and path to citizenship for Dreamers.

“This notice of proposed rulemaking is an important step to achieve that goal. However, only Congress can provide permanent protection. I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve,” said Homeland Security Secretary Alejandro Mayorkas.

Erickson Insights

On Jan. 20, 2021, President Biden directed DHS, in consultation with the attorney general, to take all appropriate action to preserve and fortify DACA, consistent with applicable law. Since then, and most recently in July, US District Judge Andrew Hanen ruled that the DACA program was unlawful because Congress had never provided the executive branch with the powers to grant broad benefits to unauthorized immigrants in the United States.

Following Judge Hanen’s ruling, President Biden said the Justice Department would appeal the ruling in an effort to preserve and secure the DACA program. Consistent with the president’s direction in January, this rule from DHS would preserve and fortify DACA.