DHS posts text of final DACA regulation

The Department of Homeland Security (DHS) has posted the text of a rule to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA).

Key Points:

• The rule is scheduled to be published in the Federal Register Aug. 30 and take effect 60 days later. A prepublication version is available here.
• DACA shields hundreds of thousands of individuals who were brought to the U.S. unlawfully as children from deportation and allows them to apply for work authorization.
• While the program has strong support from employers, it has been the subject of extensive litigation. A three-judge panel with the Fifth Circuit Court of Appeals heard arguments last month in the U.S. Justice Department’s appeal of a 2021 district court ruling that DHS did not follow proper procedures when establishing DACA.
• The district court partially stayed its order in 2021, allowing DACA beneficiaries to continue to renew their DACA grants and work authorization. DHS may not adjudicate initial DACA applications.
• The DHS regulation was crafted to protect DACA from legal challenges; however, additional litigation is likely after the regulation is published.

Background: The Obama administration created DACA in 2012. Upon taking office, President Joe Biden directed DHS to “preserve and fortify” the program. DHS proposed the DACA regulation in September 2021 and received more than 16,000 comments on the proposal last fall. The final version of the rule cleared White House review last week.

BAL Analysis: While the Biden administration has taken steps to protect DACA, the publication of the rule will not immediately change the status quo. Currently, DHS continues to adjudicate only renewal applications (DACA and employment authorization) and advance parole requests for existing DACA recipients. For more information, please visit BAL’s DACA Resource Center here. BAL continues to review the rule and will provide updates on important developments in the ongoing litigation.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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