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Administration Proposes to Codify DACA Program

The Department of Homeland Security (DHS) has proposed to codify the Deferred Action for Childhood Arrivals (DACA) program, which was created by the Obama administration in 2012 through executive action.

DHS intends to use the notice-and-comment rulemaking process to formally codify the DACA program, which has been subject to a legal challenge, in part, on the basis the Obama administration violated the Administrative Procedure Act because it bypassed the rulemaking process in 2012.

DACA allows certain undocumented noncitizens who entered the United States before the age of 16 and meet other criteria to apply for a two-year deferral of removal. DACA does not grant immigration status but does allow applicants to seek employment. DHS notes that since the program’s inception, more than 800,000 people have been granted relief under DACA, including 30,000 health care workers. The proposed rule would codify existing DACA policies, with a few limited changes:

  • modifying the existing filing process and fees for DACA and related employment authorization applications;
  • clarifying procedures for termination of DACA and employment authorization, including when DHS will provide an opportunity for the DACA recipient to respond before a DHS decision;
  • clarifying DHS’ longstanding information sharing and use policy for information provided by DACA requestors; and
  • stating that a noncitizen who has been granted DACA status is considered “lawfully present” for certain public benefits and does not accrue “unlawful presence” under immigration law. The “lawfully present” standard does not grant a noncitizen legal status but does allow them to apply for certain federal and state benefits.

DHS is not currently accepting new first-time DACA applications or renewal applications because of a federal court injunction. Given the importance of immigrants to the health care workforce, America’s Essential Hospitals has previously expressed its support for DACA, including in an amicus brief filed with the Supreme Court in 2019. The association is currently evaluating the proposed rule for comment. Comments are due Nov. 29.

Contact Senior Director of Policy Erin O’Malley at eomalley@essentialhospitals.org or 202.585.0127 with questions.

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About the Author

Shahid Zaman is a senior policy analyst at America's Essential Hospitals.

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