The United States Department of Homeland Security (DHS) published on August 24 the final rule to preserve and strengthen Deferred Action for Childhood Arrivals or DACA.
The final regulation of DACA published in August 2022, replaces the memorandum made in 2012 by the Obama administration, which was the beginning of the protection of certain undocumented youth in the United States. The new rule continues DACA policies from 2012 and builds on long-established US Citizenship and Immigration Services (USCIS) practices. Following a review of more than 16,000 opinions during the public comment period, the final DACA revision codifies the existing policy with limited changes and replaces the DACA policy guidance that was in place since its creation in 2012.
In this regard, the rule maintains existing threshold criteria for DACA and its recipients; maintains the current filing process for DACA petitioners to apply for the employment authorization that corresponds to them; and affirms the policy that DACA recipients are “lawfully present” for certain purposes.
But what does it mean to code? According to Cornell Law's Legal Information Institute, "codification" refers to an ordering of laws or regulations within a systematic code. In other words, by codifying DACA, it has become a federal regulation, rather than an immigration policy, which will facilitate its protection and defense against legal challenges that arise in the future.
The final rule will go into effect on October 31, 2022. However, following the July 16, 2021 court order issued by the United States District Court for the Southern District of Texas, the suspension of approving initial applications for DACA and employment authorizations by DHS will continue to apply. However, DHS may currently grant DACA renewal requests under the final rule, but not approve them.
