On August 24, the Department of Homeland Security issued a final rule to strengthen the Deferred Action for Childhood Arrivals (DACA) program. In a statement, DHS Secretary Alejandro Mayorkas stated that the rule would “preserve and fortify DACA” but that the country also needed Congress to pass legislation to protect Dreamers. President Biden issued a statement stating that the rule would “reinforce protections, like work authorization, that allow Dreamers to live more freely and to invest in their communities more fully” but also called on Republicans to stop blocking legislation that provides a pathway to citizenship for Dreamers.
The final rule is effective on October 31, 2022. However, due to ongoing litigation in Texas, the Department is not allowed to process new DACA applications and is only allowed to process renewals from existing DACA recipients.
The final rule maintains the current threshold criteria for DACA applicants and their corresponding work authorization. Immigrant youth who arrived in the country after 2007 are not eligible for protection. Advocates claim that the Biden administration missed an opportunity to make bold progress by expanding eligibility to include immigrant youth who entered the country more recently.
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The final rule is an attempt by the Biden administration to thwart legal challenges to the DACA program. The Fifth Circuit Court of Appeals heard arguments on the legality of the DACA program in July and could issue a decision any day now. If the Fifth Circuit terminates DACA, the US Supreme Court likely would have the final say on the program’s fate. The new rule is a response to federal judges who ruled that the DACA program violated administrative law procedures because it was issued via policy memo instead of through the notice and comment rulemaking procedures. The Biden administration hopes to undercut the courts’ concern by formalizing the DACA program through the issuance of a final rule.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your employer or EIG attorney.