A proposed rule that would “preserve and fortify” Deferred Action for Childhood Arrivals (DACA) is under final White House review. The text of the rule is not yet available.

Key Points:

  • Review by the Office of Management and Budget (OMB) is one of the last steps in the rulemaking process before the proposed rule is published. After the proposed rule clears review, the Department of Homeland Security (DHS) will post the text of the regulation for public inspection and officially publish it in the Federal Register shortly after. The agency will then accept comments from the public and must review and consider them before finalizing the regulation.
  • Last month, a federal judge in Texas ruled that the DACA program was unlawful and enjoined the agency from continuing to implement it for new applicants.

Additional Information: In January, President Joe Biden issued a memorandum ordering DHS to take steps to protect DACA. Following this directive, Secretary of Homeland Security Alejandro N. Mayorkas announced that DHS would propose a regulation to preserve and fortify DACA. Secretary Mayorkas reaffirmed that while this action would be an important step in protecting the 640,000 people brought to the U.S. as children, Congress still needed to pass legislation to give Dreamers full protection and a path to citizenship. Since then, over 100 employers and trade associations have called on Congress to protect DACA, stating that “their work and commitment to our companies, their families and communities are critical to our nation’s strength, especially since there are tens of thousands of DACA recipients working as frontline doctors and nurses and in other critical industries fighting COVID-19.”

BAL Analysis: The rule is likely to take at least a few months to become a final rule, and expected legal challenges could further delay implementation. At this time, DHS continues to adjudicate only renewal applications for existing DACA recipients. BAL continues to monitor legislative, regulatory and judicial developments related to DACA, and will continue to provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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