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On June 15, 2012, the DHS established the DACA policy. The policy directed USCIS to create a process to defer removal of certain noncitizens who years earlier came to the United States as children, meet other criteria, and do not present other circumstances that would warrant removal. On January 20, 2021, President Biden directed DHS, to take all appropriate actions to preserve and fortify DACA, consistent with applicable law. On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the June 2012 Memorandum that created the DACA policy and permanently enjoined DHS from "administering the DACA program and from reimplementing DACA without compliance with the APA." However, the district court temporarily stayed its vacatur and injunction with respect to most individuals granted deferred action under DACA on or before July 16, 2021, including with respect to their renewal requests. The district court’s vacatur and injunction were based, in part, on its conclusion that the June 2012 Memorandum announced a legislative rule that required notice-and-comment rulemaking. The district court further remanded the DACA policy to DHS for further consideration. DHS has announced its intent to appeal the district court’s decision. Consistent with the Presidential Memorandum, DHS intends to engage in notice- and-comment rulemaking to consider all issues regarding DACA, including those identified by the district court relating to the policy’s substantive legality.

Statement of Need:

The Secretary proposes in this rule to establish specified guidelines for considering requests for deferred action submitted by certain individuals who entered the United States many years ago as children. This proposed rule will also address the availability of employment authorization for persons who receive deferred action under the rule, as well as the issue of lawful presence.  The Secretary will invite public comments on a number of issues relating to DACA, including issues identified by the district court regarding the authority of DHS to maintain the DACA policy, and possible alternatives.

Anticipated Costs and Benefits:

DHS is currently considering the specific cost and benefit impacts of the proposed provisions.