Almost a decade after Deferred Action for Childhood Arrivals (DACA) was first implemented, the Biden administration directed the Department of Homeland Security (DHS) in January 2021 to “take all appropriate action to preserve and fortify DACA, consistent with applicable law.” DHS published its long-awaited proposed rule on Sept. 28, 2021, in response to the decision in State of Texas, et al. v. United States of America, et al, finding that DHS violated the Administrative Procedures Act (APA) in creating DACA. The court issued an order vacating the 2012 memorandum creating DACA. However, the court temporarily stayed the order while DHS completes the “notice and comment” rulemaking process under the APA.

The rule maintains the original DACA eligibility requirements and codifies certain longstanding policies in an attempt to protect the program from legal challenges. While many key elements of DACA would remain unchanged, the rule would change the existing application fees and significantly modify the DACA application process by making Form I-765, Application for Employment Authorization, optional. This would greatly reduce the cost of applying for DACA in cases where an individual does not want or need an employment authorization document (EAD). Under the proposed rule, DHS may terminate an individual’s DACA in its discretion without notice. CLINIC’s summary of these and other key provisions in the proposed rule are available here.

DHS welcomes public comments on any and all aspects of the proposed regulation. Comments are due on or before Nov. 29, 2021. View the proposed rule and options for how to submit a comment here.

For additional DACA related resources visit CLINIC’s DACA page.