On August 24, DHS announced the final rule on DACA which was published on August 30. 2022, and be effective on October 31, 2022. The final rule replaces the DHS 2012 Memo that established DACA but keeps all of DACA’s essential elements with a few exceptions. Unfortunately, the rule does not expand the eligibility criteria beyond the 2012 DACA memo.
Does this rule affect people who have DACA now?
The basics of DACA are still the same. That means, current DACA recipients should continue to renew DACA, but no new DACA applications can be granted.
- If you’re a DACA recipient, you should continue to renew DACA
- If you are eligible for DACA but have not applied or if you previously applied for an initial DACA request, your application will not be granted at this time. DHS is not allowed to grant initial DACA requests because of an injunction from a federal court in Texas.
Beware of notarios or scammers
Initial DACA applications are not being granted. Beware of scammers promising that you will receive DACA status if you are an initial applicant. Find a reputable legal services provider near you.
What elements of 2012 DACA are maintained in the final rule?
- Deferred Action – temporary permission to live in the U.S.;
- Work authorization –if DACA is granted and upon showing economic need;
- Advance parole is available for travel outside the U.S. – if a parole application is submitted and approved
- Lawfully present – a person granted DACA will be considered “lawfully present” for specific purposes.
Criteria for DACA eligibility:
- In the United States before the age of 16;
- Continuously resided in the United States since 2007 and in the U.S. on that date;
- In school, graduated from high school, obtained a General Education Development (GED) certificate, or honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.;
- Not convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise not pose a threat to national security or public safety; and
- Not above the age of 30 on June 15, 2012.
What elements of 2012 DACA are changed in the final rule?
The final rule’s changes to 2012 DACA:
- DACA termination procedures:
- USCIS must provide DACA recipients with a Notice of Intent to terminate DACA before any termination except in cases of national security or egregious public safety offenses.
- Employment authorization continues until DACA is terminated and not when a DACA holder is placed in removal proceedings.
Why did the Biden administration issue a DACA rule?
In July 2021, a Texas federal judge struck down DACA but allowed current DACA recipients to continue to receive DACA benefits during the appeal process. The Texas judge stated, among other things, that DHS was required to go through a formal process that gives the public a chance to learn about and comment on the DACA program. On September 28, 2021, DHS released a proposed DACA rule and the public had time to make comments about this proposal The final rule that was published on August 30, 2022 includes some of the comments the public made about DACA.
Is DACA still in danger?
Yes, DACA is still in danger of ending. Immigrant youth led a campaign to win DACA 10 years ago. Their relentless work and organizing has helped young people thrive and contribute to their communities. But Republicans have attacked the program non-stop and continue to hold up progress that would provide a pathway to citizenship for DACA recipients and all undocumented people. Our fight continues.
On July 16, 2021, in the case Texas v. United States, challenging the legality of DACA, Texas federal court Judge Hanen decided that DACA was not a lawful policy. While individuals who are already DACA recipients are able to keep and renew DACA for now, his ruling prohibits U.S. Citizenship and Immigration Services (USCIS) from approving first-time DACA requests.
DACA recipients are able to keep and renew DACA for now
DACA remains valid for current DACA recipients for now. Current DACA recipients are also able to renew DACA and use the related Social Security number and work permit. USCIS will continue to accept and process DACA renewal requests until there is a court order deciding otherwise.
First-time DACA requests will not be approved
USCIS may accept, but not approve first-time DACA request:
- For individuals who had not yet submitted a first-time DACA request, USCIS may continue to accept first-time DACA requests, but may not approve DACA for any new applicants until further litigation says otherwise.
- For individuals who had submitted a first-time DACA request that had not been decided by USCIS, USCIS may not approve the DACA request.
- According to some reports, USCIS has already begun cancelling biometrics appointments for individuals who had filed first-time DACA requests with USCIS. We await further guidance from USCIS on how they will process pending first-time DACA requests, including the filing fee associated with the DACA request.
USCIS will continue to process advance parole for current DACA recipients
Advance parole gives people in various statuses permission to temporarily travel abroad and return. DACA recipients are still eligible to request and receive advance parole. USCIS has stated they will continue to process advance parole requests for DACA recipients, but we await further specific guidance from USCIS on this topic as well. We will update this section as soon as USCIS provides further notice.
DACA recipients, for now, are not at risk of deportation
President Biden and the Department of Homeland Security (DHS) have made it clear that Dreamers are not a priority for deportation. In fact, since the decision, DHS Secretary Mayorkas has stated: “DHS remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA.”
Even Judge Hanen directed in his order that his decision does not require “DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that either would not otherwise take.”
What happens next?
Any party can appeal Judge Hanen’s decision, and any appeal would have to go first to the Fifth Circuit Court of Appeals. Any appeal after that would go before the Supreme Court of the United States. The Biden administration has announced they intend to appeal Judge Hanen’s decision.
Any appeal or other litigation may affect the decision to end DACA for first-time applicants and how long current DACA recipients are able to keep and renew DACA.
Seek legal advice from a reputable legal service provider
It is important for DACA recipients, former DACA recipients, or individuals who were going to apply for DACA, who have questions about how Judge Hanen’s decision impacts them, to seek legal advice. Beware of “notarios” or scammers. Find a reputable legal service provider near you here.
What you can do now
Take action. This decision underscores the need for Congress to act and pass legislation that provides permanent solutions for DACA recipients, TPS holders, farm workers, essential workers, and their family members. Call Congress and urge them to act quickly to provide a path to citizenship for TPS holders, Dreamers, essential workers, and the 11 million undocumented: 1-888-204-8353
Stay tuned for updates on how developments in this case and litigation through the courts may impact Judge Hanen’s decision.
Here are a few simple things you can do to help:
- Call your senators and urge them to include a path to citizenship in the reconciliation package: 1-888-204-8353
- Support Dreamers. Many Dreamers cannot afford to pay $495 to renew their work permits and protection from deportation. Help them pay for their DACA renewal fee by visiting DACArenewalfund.com.
United We Dream explains how to easily renew DACA in 2022. Check it out!
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