DACA Rule 2022
Overview
On October 31, 2022, the Department of Homeland Security’s final rule on DACA went into effect. This new regulation formally establishes the Deferred Action for Childhood Arrivals (DACA) policy.
This is an effort by the Biden Administration to strengthen the legal underpinnings of DACA. This rule does not make any changes to who is eligible for DACA, it does not reopen DACA to first-time applicants, and it is not guaranteed to protect DACA from ongoing or future legal challenges.
What is in the rule?
The Deferred Action for Childhood Arrivals final rule contains the following:
- Maintains the original 2012 eligibility guidelines—they are not changed or expanded
- The process for requesting DACA remains the same, as does the total cost ($495); however, the $85 biometrics fee has been replaced with an $85 DACA application fee. The employment authorization fee ($410) remains the same
- Clarifies that DHS will automatically terminate work authorization/EAD validity if someone’s DACA grant is terminated
- Provides a formal definition of “deferred action”
- Affirms that DACA recipients are considered “lawfully present” (but do not have a “lawful immigration status”)
Frequently Asked Questions
The rule does not make any significant changes to DACA eligibility, protections, or the application process. Current DACA recipients can continue to renew if they are eligible, but the government is still barred under court order from processing new, first-time applications.
The rule is in effect as of October 31, 2022. Due to the ongoing court case, USCIS continues to process DACA renewals under the new rule but cannot process first-time applications.
On October 14, 2022, Judge Hanen of the U.S. District Court for the Southern District of Texas declared that USCIS cannot process and grant new, first-time applications for DACA, even under the new rule.
DACA has faced multiple legal challenges. One part of the initial ruling against DACA said that the government should have allowed for more public comment when creating the policy. The Biden Administration has gone through a formal rulemaking process to strengthen DACA; this will not address every issue cited in court rulings against DACA.
On October 5, 2022, the Fifth Circuit Court of Appeals published a decision in the Texas v. United States DACA case, agreeing with the lower court’s judgment that DACA is unlawful, and sending the case back to Judge Hanen to rule on the legality of the new rule. Legal experts continue to believe that this rule is unlikely to fundamentally shift the legal outcomes enough to protect DACA.
As noted above, one of the reasons Judge Hanen initially ruled that DACA is unlawful was because the government did not go through a full public comment process when it first issued the policy. While the DACA final rule responds to the procedural argument about public comment, it does not fundamentally shift the arguments regarding the issue of the government’s authority to implement the DACA policy in the first place, which was also under consideration by the Fifth Circuit. Despite the issuance of the new rule, the Fifth Circuit still determined that DACA is illegal, and remanded the case back to Judge Hanen to evaluate the new rule.
While we absolutely believe DACA is legal, we want to make sure people are prepared for future negative rulings that could impact the existence of the DACA policy, despite the issuance of the new rule.
A timeline of this rulemaking process:
- January 20, 2021: President Biden issued a presidential memorandum calling on the Department of Homeland Security (DHS) to take all actions appropriate to “preserve and fortify DACA.”
- September – November 2021: DHS published a proposed new rule and opened the comment period, receiving 16,361 public comments and submissions.
- August 30, 2022: DHS published the final rule, which reflects feedback from the public comment period.
- October 31, 2022 Implementation: The rule is currently in effect as of October 31, 2022. Though USCIS continues to process DACA renewals under the new rule, they cannot process first-time applications.
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