DHS Begins Partial Implementation of Final Rule on DACA

DHS begins partial implementation of final rule on DACA
November 10, 2022

The Department of Homeland Security’s (DHS) final rule for the Deferred Action for Childhood Arrivals (DACA) took effect on October 31, 2022. With it implemented, DACA will no longer fall under a policy memorandum. Instead, it will return to its previous regulation. Doing this helps to preserve the program while it faces litigation in court. DACA has permitted more than 800,000 young people to stay in the United States. For many recipients, the US is the only country they have lived in.

While the litigation continues, the United States Citizenship and Immigration Services (USCIS) will continue accepting and processing applications by current recipients for deferred action, advance parole, and work authorization. However, though the USCIS will accept initial DACA requests, they will not process them due to the continuing litigation.

According to Director Ur M. Jaddou of the USCIS, the final rule is an attempt to “preserve and fortify DACA” as much as possible. However, it does rely on Congress passing legislation to give the Dreamers permanent protection.

The director also stated that implementing the DACA final rule shows that the USCIS continues to be committed to Dreamers. Furthermore, though the USCIS cannot adjudicate initial requests, the agency will process renewals and provide continuing protections for current recipients.

The final rule affirms that:

  • “Current DACA recipients’ deferred action, employment authorization, and advance parole will continue to be recognized as valid under the final rule.
  • DACA is not a form of lawful status, but recipients are considered “lawfully present” for several purposes.
  • Non-citizens who meet eligibility criteria, clear all national security and public safety vetting, and merit a favorable exercise of discretion may be granted deferred action and obtain renewable two-year work authorization. Given pending litigation, however, the Department is currently barred from granting deferred action to any new DACA recipients.”

Meanwhile, the US Court of Appeals for the Fifth Circuit affirmed the decision made by the US District Court for the Southern District of Texas. The Court of Appeals declared that the DACA policy was unlawful but kept the partial stay issued by the district court. Furthermore, the Court of Appeals returned the case to the district court in light of the new DACA rule. The US District Court did extend its injunction and its partial stay of the DACA final rule on October 14, 2022.

Companies that hire recipients must fill out Form I-9, as is required for all new hires. However, completing this form for recipients could prove confusing due to the changing regulations. The best way to ensure Form I-9 is completed correctly for all employees is to use an electronic I-9 management system. This system guides employers through every step and safely and securely stores the forms and accompanying documentation.

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