US | DHS Implements the Deferred Action for Childhood Arrivals Final Rule

On October 31, the Department of Homeland Security’s final rule to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) program went into effect:

  • Maintaining the existing threshold criteria for DACA;
  • Retaining the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with Form I-821D; and
  • Affirming 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 implementation of the rule means that current DACA recipients can continue to apply for renewals and requests for advance parole. However, because the DACA program is also the subject of federal litigation, USCIS cannot process new DACA applications.

Practically, implementing the final rule does not change the current practice of processing DACA applications. 


On Sept. 28, 2021, DHS published a notice of proposed rulemaking for DACA. After review of the more than 16,000 public comments submitted, DHS published the final rule on Aug. 30, 2022.

On October 5, 2022, the 5th US Circuit Court of Appeals affirmed a lower court’s ruling determining the DACA program is illegal and remanded the case back to the lower court so it could consider rules recently issued by the Biden administration to “preserve and fortify” the program. As an outcome of this decision, DHS is not allowed to process new DACA applications; however, it can continue to process renewals.

Erickson Insights

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.