The Department of Homeland Security on Wednesday issued a final regulation codifying the Deferred Action for Childhood Arrivals (DACA) program amid continued threat of litigation against it.
The rule formally replaces the 2012 memo issued by the Obama administration, under which undocumented immigrants who arrived in the country as minors — also known as Dreamers — were allowed to live and work in the United States.
“Today, we are taking another step to do everything in our power to preserve and fortify DACA, an extraordinary program that has transformed the lives of so many Dreamers,” Secretary of Homeland Security Alejandro Mayorkas said.
“Thanks to DACA, we have been enriched by young people who contribute so much to our communities and our country. Yet, we need Congress to pass legislation that provides an enduring solution for the young Dreamers who have known no country other than the United States as their own,” he added.
The final regulation, which went through a public comment period, will formally replace the memo on Oct. 31.
In its decadelong history, the policy has been subject to extensive litigation, often targeting the validity of implementing a deferral program through a memo.
In July 2021, U.S. District Court Judge Andrew Hanen of Texas ruled that DACA was illegal, largely based on the fact that it was created by a memo, rather than a formal rule.
That ruling, under appeal in the 5th Circuit, did not strip the 600,000 or so DACA recipients of their benefits, but it did prevent the Biden administration from signing on new applicants.
Once the new DACA rule is in place, the Biden administration will be able to accept new applicants.
But states like Texas, which filed the lawsuit that led to Hanen’s ruling, are certain to open up new litigation that’s likely to succeed in delaying enforcement of the new rule.
And the rule maintained the cutoff dates from the original memo, meaning that only Dreamers who arrived in the United States by 2007 are eligible to apply.
According to a new report by FWD.us, a tech industry-linked immigration advocacy group, only about a quarter of the 100,000 Dreamers graduating U.S. high schools this year are eligible for DACA under the current cutoff dates.