The Department of Homeland Security, or DHS, published proposed regulations regarding Deferred Action for Childhood Arrivals, or DACA, on Sept. 28, 2021. The proposed regulations follow President Biden’s directive to DHS to take all appropriate action to preserve and fortify DACA, consistent with applicable law.

The summary below highlights key provisions from the proposed rule. Under the rule, the eligibility requirement for DACA would remain the same. Some proposed revisions would simply codify longstanding DACA policies, while others would make notable changes to the DACA program.

Defining Deferred Action and DACA Eligibility

The proposed rule:

• Maintains the DACA eligibility guidelines (“threshold criteria”) that have been in place since 2012 rather than expanding them.
• Does not make any changes to the DACA FAQs, which have been the primary USCIS guidance on DACA implementation.
• Codifies the definition of “deferred action” as “a temporary forbearance from removal that does not confer any right or entitlement to remain in or re-enter the United States, and that does not prevent DHS from initiating any criminal or other enforcement action against the DACA recipient at any time.”
• Reiterates that DACA provides lawful presence (which is distinct from lawful status) for purposes of eligibility for certain Social Security benefits and that DACA recipients do not accrue unlawful presence purposes of INA 212(a)(9)(B).

Employment Authorization and Advance Parole

The proposed rule:

• Would make applying for an employment authorization document, also known as an EAD, optional. DACA applicants would not be required to submit Forms I-765 and I-765WS along with their Form I-821D.
• Provides that work authorization (and EAD validity) would terminate automatically if someone’s DACA grant is terminated.
• Does not address advance parole but in supplemental information DHS asserts its authority to issue advance parole at its discretion and confirms it intends to preserve its longstanding policies regarding advance parole for DACA recipients.

Fees

• USCIS would charge an $85 application fee for Form I-821D. The Form I-765 fee would remain the same ($410), subject to future changes. No separate biometrics fee would be charged for the I-821D or I-765.

  Proposed Fees	I-821	I-765	Biometrics	Total
  With EAD	$85	$410	$0	$495
  Without EAD	$85	$0	$0	$85

• Those who request an EAD must still show economic necessity and submit Form I-765WS along with the I-765.
• No fee waiver is available and there are no changes to existing fee exemptions.

Discretionary Determination

• The proposed rule clarifies that USCIS makes a case-by-case determination when deciding whether or not to grant DACA. Even if all threshold requirements are met, DACA may be denied in the agency's discretion if negative factors make a grant of DACA inappropriate or outweigh the positive factors.

Procedures for Requesting DACA, Termination, and Restrictions on Information Use

• USCIS retains exclusive jurisdiction for DACA requests. Those in ICE detention may request DACA but may not be approved unless they are released from detention prior to a USCIS decision on the DACA request.
• USCIS may terminate a grant of DACA at any time in its discretion, with or without issuance of a notice of intent to terminate, or NOIT.
• Essential elements of the longstanding Notice to Appear, or NTA, policy regarding DACA are retained. USCIS would issue an NTA or referral to ICE (RTI) for possible enforcement action if the case involves denial for fraud, a threat to national security, or public safety concerns.
• A DACA grant would automatically terminate without notice upon:
  1. Filing of an NTA with the Executive Office for Immigration Review (unless issued solely as part of an asylum referral); or
  2. Departure from the U.S. without advance parole.
• Longstanding policy on confidentiality is codified to restrict use of information provided in a DACA request for immigration enforcement purposes.

60 Days for Public Comment (Must Be Submitted on or Before Nov. 29, 2021)

DHS welcomes comments on any and all aspects of the proposed regulation, including “potential changes to maximize the rule’s net benefits and provide necessary clarity to DHS officials and the public.” For example, the public may wish to comment on “whether specific provisions of the proposed rule should be changed; whether additional aspects of the existing DACA FAQs should be incorporated into the final rule; and whether any other aspect of the proposed rule could be improved materially.”