The Office of Management and Budget (OMB) has completed its review of the Department of Homeland Security’s (DHS) proposed rule to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA). The text of the rule is not yet available.

Key Points:

  • Now that the proposed rule has cleared OMB review, the next step is for DHS to post the text of the proposal for public inspection. The agency will officially publish it in the Federal Register shortly after.
  • DHS will then accept comments from the public and must review and consider them before finalizing the regulation.
  • In July, a federal judge in Texas ruled that the DACA program was unlawful and enjoined the agency from continuing to implement it for new applicants. The Justice Department appealed the ruling earlier this month; the case is now before the Fifth Circuit Court of Appeals.

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: Official publication of the proposed rule will begin a public comment period. DHS will need to review the comments before publishing a final regulation, 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 for 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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