Responding to the history of legal challenges, the Biden Administration is trying to give the DACA (Deferred Action for Childhood Arrivals) program more heft by changing it from a policy to a regulation. On October 31, 2022, a new final rule will become effective.

To the dismay of many advocates for the “Dreamers,” however, the new final rule simply reinstates the previous policy without making any substantial changes. For instance, the new rule does not reach individuals who were brought to the United States by their parents after 2007 nor does it reach “Documentary Dreamers” who have aged out of their parents’ visas.

Under the new final rule, individuals without lawful permanent status in the United States may apply to defer removal for a renewable period of two years and receive employment authorization. To be eligible, such individuals must have come to the United States while under 16 years of age, have continuously resided in the United States since June 15, 2007, and must have been physically present in the United States on June 15, 2012, and at the time of the DACA application. In other words, the individual must have been in the United States when the original DACA policy was initiated by the Obama Administration.

A federal district court judge in Texas ruled in July 2021 that the DACA policy could not be enforced because it was not enacted correctly. That decision is still on appeal at the U.S. Court of Appeals for the Fifth Circuit. In the meantime, the district judge allowed that those already in DACA status could continue to renew their eligibility, but that new initial applications for DACA could not be accepted. That injunction will remain in effect until a ruling comes down that changes it — even after the new rule goes into effect.

That is why President Joe Biden has made clear that Congress is in the best position to make DACA protection permanent, to change DACA eligibility to encompass a larger group of individuals who have been brought to the United States by their parents, and to provide a pathway to citizenship for DACA and DACA-type beneficiaries.