On September 28, 2021, the Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking (NPRM) as part of a process intended to preserve and fortify Deferred Action for Childhood Arrivals (DACA), a critical immigration policy. This NPRM was spurred in part by a ruling by Judge Andrew Hanen of the Southern District of Texas, who ruled that DACA violated the Administrative Procedure Act, and then blocked the government from approving any new applications. In addition to the NPRM, DHS is currently appealing the Texas ruling.
Below are answers to frequently asked questions about the NPRM, the Texas ruling, and their impact on immigrants and Dreamers.
What is the goal of this rulemaking process?
Are there any changes to DACA proposed in the NPRM?
As stated by Homeland Security Secretary Alejandro Mayorkas, the purpose of this process is to protect Dreamers and preserve DACA.
I qualify for DACA but have not applied. Does this process or the Texas ruling prevent me from applying now?
On the whole, the NPRM is intended to maintain DACA as it exists today. As such, its proposed regulations do not change DACA’s existing criteria. That means that, if the proposed regulations are implemented as they are written, DACA will be available only to people who 1) arrived in the U.S. before age 16, 2) have resided in the U.S. continuously since June 15, 2007, and 3) were present in the U.S. on June 15, 2012.
Additionally, the NPRM includes a proposed change to allow DACA applications to be submitted without requests for employment authorization. In this case, the applicant would only submit the DACA application (Form 821D). The fee for this application would be $85.00.
I’m a Dreamer, but my DACA grant has expired. Can I still renew my status?
No. You may still apply for the program. DHS has determined that, while the Texas ruling blocks them from approving new applications, they can still accept new applications. Requests that were pending as of the ruling on July 16, 2021, have been put on hold but not closed or rejected until either a Final Rule is issued, the Appeals Court reverses the ruling, or the Appeals Court expands the injunction to apply to new applications.
If you are considering applying for DACA, you should speak with an immigration lawyer about your eligibility and whether you should apply. You can find an immigration lawyer using the resources on this page.
When is a final rule expected to be issued?
Maybe. If your DACA grant has been expired for less than one (1) year, you may still submit a renewal request, and it will still be processed by DHS. If your DACA grant has been expired for more than one (1) year, you should speak with an immigration lawyer about your eligibility and whether you should re-apply.
This depends on many factors. Current estimates indicate spring 2022 or after.
Last updated: 10/13/2021