The new Deferred Action for Childhood Arrivals (DACA) final rule is in effect – to the extent permitted by court orders.

DACA allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. There are approximately 600,000 immigrants, known as “Dreamers,” who are protected by DACA.

The DACA policy instituted in 2012 during the Obama Administration was just that – a policy. The policy was issued without going through the rulemaking process. DACA has been in limbo for years because the program has been challenged in court and by the Trump administration. Litigation regarding DACA has been ongoing since 2018 – even making it the U.S. Supreme Court. Most recently, on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit, affirmed that the original DACA policy is unlawful. Despite that, the court continued the partial stay that allows USCIS to adjudicate DACA renewals and to accept (although not adjudicate) new initial DACA applications.

To overcome some of the problems identified in the litigation, the Biden Administration issued a new rule essentially codifying the old policy through the notice-and-comment process to fortify DACA. The new final rule, which went into effect on October 31, 2022, maintains the existing threshold criteria for DACA, allows for two-year renewable Employment Authorization Documents (EADs), and confirms that DACA is not a form of lawful status, but rather DACA recipients are considered lawfully present in the United States. Unfortunately, the final rule has not solved the problem and the program remains limited to the extent permitted by court orders, such as the Fifth Circuit Court of Appeals’ decision on October 5, 2022. The Fifth Circuit also remanded the case back to the district court to consider the new DACA final rule.

The Fifth Circuit’s ruling does not affect the validity of current grants of DACA or EADs already issued by USCIS. Those with DACA and/or EADs may continue to renew their DACA status and their EADs. There is no need to conduct reverifications until the EAD expires. The FAQs issued by USCIS in July 2021 are still applicable.

Because of the “instability” of the program and because the administration would like to see it expanded to cover more individuals, President Joe Biden has continued to call for Congressional action. Secretary of Homeland Security Alejandro Mayorkas has said, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”