The Department of Homeland Security (DHS) finalized a rule codifying the Deferred Action for Childhood Arrivals (DACA) program, which was created by the Obama administration in 2012 through executive action.
In October 2021, DHS proposed to seek comment on codifying the DACA program, which has been subject to legal challenge, in part on the basis the Obama administration violated the Administrative Procedure Act because it bypassed the rulemaking process in 2012. The final rule is effective Oct. 31, 2022, but DHS notes that it is not currently granting initial DACA applications due to a federal district court injunction that DHS has appealed.
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 825,000 people have been granted relief under DACA, including 30,000 health care workers.
The final rule codifies existing DACA policies, with a few limited changes:
- The rule retains existing threshold requirements for eligibility for DACA, with the limited modification clarifying that expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under state laws do not automatically disqualify an individual from being granted deferred action.
- The rule maintains existing filing processes and fees for DACA and related employment authorization applications, which require the two applications to be submitted concurrently.
- It clarifies procedures for termination of DACA and employment authorization.
- The rule clarifies DHS’ longstanding information sharing and use policy for information provided by DACA requestors.
- The rule states 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.
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 and in comments on the 2021 proposed rule, urging DHS to formally codify DACA.
Contact Senior Director of Policy Erin O’Malley at firstname.lastname@example.org or 202.585.0127 with questions.