The Department of Homeland Security has proposed a regulation to formally establish the Deferred Action for Childhood Arrivals program (DACA) to address the procedural aspects of a federal district court’s decision to vacate the program. Meanwhile, the fate of the program will depend on whether a higher court takes a different view of the substantive issues.
HR Policy will provide comments on the proposal, which maintains much of the original 2012 DACA program. The original program was effectively established in 2012 by a memorandum issued by the DHS Secretary.
The proposal has no immediate impact on current or future DACA beneficiaries or their employers. The federal ruling vacating DACA stayed the order for current DACA beneficiaries. DHS will continue to accept and issue DACA and work authorization extensions from current DACA beneficiaries.
Meanwhile, Democrats’ “plan B” to include immigration provisions in the budget reconciliation bill was rejected this week by the Senate Parliamentarian. These included protections for Dreamers. The ruling stated, “The change in status to [lawful permanent resident] remains a life-long change in circumstances, the value of which vastly outweighs its budgetary impact.”
The bottom line: The proposed rulemaking may address the federal court’s procedural grounds for vacating DACA, but the court also ruled that the program itself substantively violated U.S. law. The Biden administration will attempt to address these concerns in its appeal to the Fifth Circuit. However, legislation remains the only surefire way to protect Dreamers, who represent a valuable portion of the U.S. workforce.
