Updated September 21, 2021
Latest DACA Development: On September 28, 2021, the Biden administration published a notice of proposed rulemaking on deferred action for childhood arrivals (DACA). This means the government is planning to issue formal rules in the form of regulations that will set forth who may benefit from DACA and how they may apply. The proposed rules issued with the notice are not yet in effect, but rather a proposal on which the public – including DACA recipients – may provide feedback. Any changes to DACA as a result of the proposed rules will likely not happen for at least a few months. The government will announce final rules and a date those rules will be in effect in the future. The proposed rules are available here: https://public-inspection.federalregister.gov/2021-20898.pdf
This advisory is not intended as legal advice but rather to provide information on the current status of the DACA program. Individuals should seek a legal consultation from a qualified immigration attorney or DOJ accredited representative for a full assessment of their individual case. Please check our website or NIJC’s social media channels for future updates about DACA.
How Biden's proposed rules may impact the DACA program
1. Do the proposed rules change the DACA program?
The proposed rules contain the same DACA eligibility requirements that have been in places since the beginning of the program. The proposed rules do not change the date and age by which one must have arrived in the U.S. to qualify for DACA or the evidentiary requirements necessary to prove eligibility. Keep in mind that these are just proposed rules, and the final rules could be different from the proposed rules the government has published.
2. Can I submit comments on the proposed DACA rules?
Yes. You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. 2021-0006, through the Federal eRulemaking Portal at https://www.regulations.gov. Follow the website instructions for submitting comments. Comments are due 60 days after the publication date of September 28, 2021, so on November 27, 2021.
The impact of the July 2021 Texas court ruling
3. How are the proposed rules related to the July 16, 2021 decision from the federal court in Texas that found the DACA program was unlawful?
In the lawsuit Texas v. U.S., Judge Hanen found the DACA program to be unlawful. His judgment vacates (or cancels) the DACA program. However, the judge also issued a preliminary injunction which stays (or delays) the judgment for DACA renewals. This means that even though the judge found DACA to be unlawful in its entirety, people who already had approved DACA prior to the ruling can continue renewing DACA for the time being. If the judgment ever becomes final (the federal court appeal process ends or the stay is lifted by another court) then DACA renewals will also stop and USCIS will no longer accept or rule on renewal applications. In his decision, Judge Hanen criticized DACA, as adopted by Secretary Napolitano, for not having gone through the formal rulemaking process. That is what is happening now. Until the rulemaking process reaches a conclusion, Judge Hanen’s decision remains in force unless a higher court overturns it.
NIJC's updated DACA resources: