Biden Administration Opens DACA Changes for Public Comment

The Department of Homeland Security (DHS) recently announced proposed rule changes to the Deferred Action for Childhood Arrivals (DACA) program that we hope will take place. These changes seem necessary to us as immigration lawyers and as people who believe in the promise of America, and while they seem incremental and bureaucratic, they help to address legal challenges to the program.

The proposed changes include: 

- Modifying the existing filing process and fees for DACA by making the request for employment authorization on Form I-765, Application for Employment Authorization, optional and charging a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals; the current cumulative fees for both a DACA request and optional employment authorization would remain $495, absent any separate fee increase for the Form I-765 generally

- Providing clarity in procedures for termination of DACA and employment authorization, including when DHS will provide an opportunity for the DACA recipient to respond before a DHS decision

- Providing clarity to DHS’s longstanding information sharing and use policy for information provided by DACA requestors

- Reiterating our long-standing policy that a noncitizen who has been granted deferred action is considered “lawfully present” for certain public benefits and does not accrue “unlawful presence” for purposes of section 212(a)(9) of the Immigration and Nationality Act.

There will now be a 60-day period for comments before any changes are made.

These changes are part of the Biden Administration’s effort to stabilize DACA, a program that the previous administration tried to terminate, then when that failed, prevent from receiving new applicants. In July, district court Judge Andrew Hanen blocked DACA, declaring that it is in violation of the Administrative Procedures Act (APA) because it does not go through the usual rule-making process. Hanen's decision had a disturbing symmetry, blocking DACA with a legal rationale similar to the one used by the courts to block many of the Trump Administration’s efforts to restrict immigration, that the government failed to adhere to the APA. Nonetheless, the effect is that at the moment DACA's future is uncertain and it can't take new applicants.

It is disturbing that there is actually a fight over DACA, and that there are those who want to preserve the possibility of deporting people who were brought to the United States by their parents, in many cases at such a young age that the country of their birth would be a foreign country for them in which they have few if any roots. 

We hope these regulatory changes will be the start of a process that solidifies a program that has now been in place for nine years so that we can start a more honest conversation about immigration in America. As we saw last year, America relies on undocumented workers to pick produce that can be sold at a price consumers are willing to pay. They were declared to be essential workers, even while they were not eligible for more permanent status. Our current immigration policy is rife with disjunctions like that one, and if the country wants to live the values it has made central to its identity, we need to address them.