On September 27, 2021, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) seeking to codify the Deferred Action for Childhood Arrivals (DACA) policy first outlined in the 2012 Napolitano Memorandum. The DACA policy allows for certain young people who came to the United States as undocumented before they turned 16 and were generally low enforcement priorities to apply for deferred action, a form of prosecutorial discretion, and work authorization. If granted, applicants receive two years of protection from removal. Since the DACA policy was enacted in 2012, more than 825,000 individuals have successfully applied under the program.
The DACA policy has been met with significant pushback from advocates and detractors since its original announcement in 2012. Immigration advocates called for a more permanent solution, arguing that the policy was only a temporary stopgap for how to deal with the estimated 1.8 million undocumented immigrants who met the requirements for the program. Additionally, DACA only provided a grant of deferred action, a temporary reprieve from removal, and does not confer any right to remain in or re-enter the United States. Meanwhile, opponents of the policy argued that then-President Obama overstepped his authority and that only Congress had the power to enact immigration legislation.
With the NPRM the Biden-Harris Administration is attempting to safeguard the policy that has been under threat following years of litigation and an attempt by the Trump administration to unilaterally end the program in 2017. Most recently, in July 2021, the U.S. District Court for the Southern District of Texas ruled that the DACA policy was unlawful and partially ended the program for first-time applicants. Renewal applications were not affected by this ruling. The administration is currently appealing that ruling.
The current NPRM adopts many of the provisions outlined in the 2012 policy and does not expand who benefits from the policy. Generally, applicants must have come to the United States before the age of 16; been physically present and continuously resided in the United States from June 15, 2007, to the time of filing of the request; had no current lawful immigration status; be enrolled in or graduated from high school or GED program or honorably discharged veteran of the U.S. Coast Guard or Armed Forces; were not convicted of a felony or misdemeanor described in the rule; and were born after June 16, 1981.
In response to prior litigation, the NPRM makes a point of separately outlining the three main points of the policy in an attempt to preserve certain provisions in the event of a legal challenge. Both the District Court in Texas and the Supreme Court have raised concerns over the automatic work authorization aspect of the DACA policy. As a response to these concerns, DHS first reiterates that deferred action is discretionary determination to defer the removal of an individual as an act of prosecutorial discretion. Second, relying on prior regulations and statutes, DHS may authorize work authorization to individuals granted deferred action based on evidence of the individual's economic necessity for employment. The work authorization would be valid for the entire duration of the deferred action. Third, during the period of deferred action, individuals are considered lawfully present and do not accrue unlawful presence. If any of the provisions are held to be unlawful, DHS takes the position that the remaining provisions will remain in place. While a policy that provides work authorization is preferred, DHS contends that a forbearance-only policy would still benefit applicants as it would provide some measure of safety from removal.
The NPRM slightly modifies the application process and filing fees. Under the 2012 policy, applicants were required to file two forms with the United States Citizenship and Immigration Service (USCIS), an application for deferred action, and a request for work authorization. There was no filing fee for the deferred action, however, there was a $410 filing fee and an $85 biometric fee for the work authorization application. Under the NPRM, applicants will be required to pay an $85 filing fee, and filing a work authorization application would be optional. By severing the work authorization application from the request for deferred action, DHS hopes to decrease the financial burden for individuals who do not need or want work authorization. Applicants would be permitted to apply for work authorization at a future date.
The NPRM also outlines the economic contributions of DACA recipients, highlighting their employment across numerous industries including management and business, education and training, sales, office and administrative support, and food preparation. As of 2017, 72% of the top 25 Fortune 500 companies employed at least one DACA recipient. Of special note, an estimated 30,000 DACA recipients are health care workers, many of whom have been frontline workers during the COVID-19 pandemic. As it stands for many, DACA is their only option to live and work in the United States. However, the NPRM, by DHS's own admission, is not a perfect solution for the affected population and it highlights a need for legislative action to grant permanent relief.
Originally published in the October 14, 2021 edition of The Legal Intelligencer.
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