Reacting to a ruling from a federal district court judge in Texas, the Biden Administration proposed a new DACA (Deferred Action for Childhood Arrivals) rule that would strengthen protections for the “Dreamers.”

DACA has been under attack since 2017, when the Trump Administration announced it would terminate the program. Litigation has prevented that from happening, but in July 2021, U.S. District Court Judge Andrew Hanen in State of Texas et al. v. U.S. et al. ruled, primarily on technical grounds, that DACA was illegal. Judge Hanen, recognizing the substantial reliance interests involved, allowed current DACA beneficiaries to continue to review their statuses (at least while appeals were pending), but has prevented the approval of any new DACA applications.

To overcome the argument that DACA was illegal because it was created by President Barack Obama by a memorandum, the Biden Administration is basically recreating the program through the rulemaking process, including a 60-day comment period. The eligibility requirements are the same as in the old rule. Applicants:

• Must have come to the United States before turning 16 years of age;

• Must have continuously resided in the United States from June 15, 2007, to the time of filing;

• Must have been physically present in the United States on June 15, 2007, and on the date of filing;

• Must be enrolled in school, have graduated from high school, earned a GED, or been honorably discharged from the U.S. military (including the Coast Guard); and

• Cannot have any felonies nor certain misdemeanors on their record and cannot pose a threat to national security or public safety.

There are a few new wrinkles:

• The application process and filing fees are modified;

• A specific category for DACA Employment Authorization Documents is established; and

• The rule clarifies that DACA beneficiaries are “lawfully present” for Social Security purposes.

Many comments are expected during the Notice and Comment period, so it may take some time for this new rule to go into effect. In the meantime, legislation continues to be the best way to solidify DACA and give DACA beneficiaries a pathway to citizenship. The Senate Parliamentarian, however, has determined that DACA cannot fit into a reconciliation strategy and getting bipartisan agreement for the Dreamers will be a difficult task.

Meanwhile, the Biden Administration has appealed Judge Hanen’s ruling and those with DACA status may continue to renew their status and their employment authorization when necessary.