August 30, 2022

In today’s Federal Register, the Department of Homeland Security (DHS) published a final rule to re-establish the Deferred Action for Childhood Arrivals (DACA) program. As you may recall, the DACA program was established through a memo issued by President Obama’s Homeland Security Secretary in 2012. Last year, a federal judge invalidated the DACA program because it was established through an internal departmental memorandum instead of through the federal notice-and-comment rulemaking process.

Today’s final rule largely reinstates the 2012 DACA program with an eye towards shielding the program from legal challenges that could again imperil its continued operation. The final rule maintains longstanding eligibility rules for the DACA program and would allow workers who received work authorization pursuant to the DACA program to continue to work legally.

To be eligible under today’s DACA final rule, applicants must have: (1) come to the United States under the age of 16; (2) continuously resided in the United States from June 15, 2007, to the time of filing of the request; (3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request; (4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request; (5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (6) not been convicted of a felony (defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year), a misdemeanor described in the rule (i.e., an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence, or one for which the individual was sentenced to time to be served in custody of more than 90 days), or three or more other misdemeanors (a federal, state, or local criminal offense for which the maximum term of imprisonment authorized is one year or less but greater than five days) not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety; and (7) been born on or after June 16, 1981 and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order.

SWACCA’s recent member survey on immigration issues revealed strong support among SWACCA members for the continuation of the DACA program.

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