Q. I saw in the news that the Biden administration proposed a new regulation about the Deferred Action for Childhood Arrivals (DACA) program. What happened, and what does it mean for DACA holders as well as people interested in obtaining DACA?

A. On Aug. 24, 2022, the Department of Homeland Security (DHS) filed a new regulation in the Federal Register to codify the DACA policy in an attempt to defend it. This rule will take effect on Oct. 31 of this year, or 60 days after its official publication on Aug. 30, 2022.

As a quick overview, DACA emerged out of a memorandum signed by then DHS Secretary Janet Napolitano. To qualify for DACA, a person must have continuously resided in the US since June 15, 2007; be physically present in the US on June 15, 2012; be under the age of 31 on June 15, 2012; came to the country prior to turning 16 years old; meet the education requirement; and have not committed certain criminal acts. If USCIS grants a person DACA, that individual can apply for a work permit.

DACA’s legality remains a contentious subject. The policy is currently the subject of a lawsuit in the 5th Circuit Court. This lawsuit appeals a 2021 decision by a judge in the US District Court for the Southern District of Texas to vacate DACA and prevent DHS from processing initial DACA applications.

This newly published final rule replaces the prior memorandum, but little (unfortunately) changed in terms of eligibility. The requirements remain the same, and the regulation does not create any new eligibility categories. Approvals will continue to last for two years. All current DACA approvals remain in effect under the original memorandum, but any DACA renewals or new applications after October 31, 2022, will be governed by the regulation. One notable aspect of the regulation is that the document affirmatively states that USCIS will not refer any applicant to removal proceedings after a DACA denial unless the agency determines that the case involves fraud, a threat to national security, or public safety concerns.

If you believe that you qualify for DACA or if you currently have DACA and need to renew it, please contact Rian at 617-984-6542 to be scheduled for a consultation.

Disclaimer: These articles are published to inform the general public, not to advise in individual cases. All law, including immigration law, is always subject to change. If you seek legal advice you can contact Rian’s immigration legal staff at 617-984-6542.