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New Proposed Rule Set to Preserve DACA Program

What You Should Know About This Proposal

The Biden administration published a proposed rule on September 28, 2021, outlining a path for preserving the Deferred Action for Childhood Arrivals (DACA) program. This proposal comes after the Senate parliamentarian’s decision not to allow immigration provisions in the 2022 budget, in which the Democratic representatives were planning to create a path for citizenship for DACA recipients, also known as Dreamers.

This 205-page proposal may be encoded into law on November 29, 2021, following a 60-day comment period. Read on to learn more about what’s included.

New Provisions

Section IV. of this proposal outlines what provisions may be enacted. These cover the application process and associated fees, procedural information, and states that the U.S. Department of Homeland Security (DHS) reserves the right to create new policies related to DACA and immigration enforcement.

Fees and Applicability

In terms of application and fees, there are several new provisions that may be established and overturn previous rulings. The current fee structure is:

  • $410 for Form I-765 (Application for Employment Authorization)
  • $85 for the biometrics service fee

However, the requirement that DACA applicants must have employment authorization will be made optional. This may be reflected in the fees at the time of application. As such, DHS has proposed that an $85 fee be charged for Form I-812D, which is the standard Consideration for Deferred Action for Childhood Arrivals application, and removal of the biometrics service fee. You can view the entirety of the new fee proposal here.

Further outlined in Section 236.21 on applicability, the country will not enforce a removal policy of DACA applicants, as they are considered "low priority" cases for DHS and not unlawfully present under the new proposed rule. Determination of applicability will also be shifted to a case-by-case basis.

The U.S. Citizenship and Immigration Services (USCIS) and DHS reserves the right to discretionary determination of applicability and will evaluate candidates on this proposed criteria, among other factors:

  • Entered the United States before turning 16.
  • Continuously resided in the U.S. before June 15, 2007, and was physically present in the country on June 15, 2012, and at the time of request.
  • No lawful immigration status on June 15, 2012, and at the time of request.
  • Currently enrolled in school, graduated, obtained a GED, or is an honorably discharged member of the U.S. Armed Forces or Coast Guard.
  • No felony convictions, three or more misdemeanors, or misdemeanor as proposed.
  • Not a threat to national security or public safety.
  • Born on or before June 16, 1981, and are at least 15 years old at the time of request (with some limitations).

Applicants may be able to submit primary and secondary evidence that they meet certain criteria and be evaluated on those grounds.

Summary of Major Provisions

As this proposal aims to preserve and strengthen the current DACA policy, several additional provisions are being debated. Should these be enacted at the end of the comment period, the following would be codified into law:

  • Definition of deferred action as a temporary stay on removal but does not prevent criminal or enforcement action by DHS.
  • The criteria mentioned above for applicability.
  • USCIS ultimately grants deferred action under DACA.
  • The grounds for termination of deferred action for an individual and procedure for immigration enforcement proceedings.
  • Requirements for filing an application and the associated fees.
  • Employment authorization provisions and termination of this.
  • Dreamers are to be considered lawfully present in the U.S..

This proposal and its supporting documents are currently open for public comment. In addition to the rule itself, anyone is able to provide feedback on the:

You can submit a public comment in support or against this proposal here.

Why Was This Proposed?

Earlier this year, the U.S. District Court for the Southern District of Texas vacated the Obama-era memorandum that first enacted DACA, which President Biden's January Executive Order reinforced. In doing so, it challenged the reimplementation of this policy. However, individuals who had already been approved for DACA or requested to renew could still proceed in the process.

The U.S. Department of Homeland Security has since appealed this vacatur and put forward this proposal.

DACA Questions? Maney | Gordon | Zeller, P.A. Has Answers

Maney | Gordon | Zeller, P.A. has been providing guidance for individuals and their families looking to apply for DACA since the Obama administration formally enacted the policy in 2015. This process can be complex, and often, individuals who are denied this assistance may be left with many questions. From procuring the appropriate evidence in support of your application to providing representation following a denial, our attorneys are prepared to help you through each step of the process.

If you would like to discuss your eligibility or have questions regarding your application, please call (800) 708-4399 or fill out this short form to schedule a consultation with a member of our team. Our firm offers services in several languages, including German, Russian, Spanish, Urdu, Korean, Dutch, Pashto, Hindi, Amharic, Harari, Somali, and Thai.

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