The NCSL Blog


By Nicole Ezeh

The Department of Homeland Security (DHS) last week released a Notice of Proposed Rulemaking (NPRM) regarding its Deferred Action for Childhood Arrivals (DACA) policy.

Since June 2012, DACA has protected 825,000 undocumented childhood arrivals from deportation. In the proposed rule, DHS acknowledged the many positive contributions DACA recipients have made to the country and the economy.

A DACA recipient is photographed in Colorado, September 2018. Center for American ProgressThe notice states ACA recipients and their households have paid around $3.1 billion in state and local taxes since the policy began. In addition, over 30,000 DACA recipients are employed in frontline healthcare positions that have supported our communities throughout the pandemic.

Based on these contributions, DHS reiterated its position that due to the limited resources available for enforcement of immigration violations, DACA recipients should be deprioritized for enforcement considering the benefits DACA recipients bring to their communities and the United States as a whole.

This past July, the Southern District of Texas ruled the DACA program was “illegal” and violated the Immigration and Nationality Act of 1952 (INA). While DHS has appealed that decision, it has also proposed changes to attempt to preserve DACA and square it with existing legislation.

The bulk of the NPRM explains the background of the related litigation as well as the history of deferred action in immigration enforcement by DHS and its predecessor agencies.

The new rule would clarify that deferred action granted under DACA would make a DACA recipient “lawfully present” for purposes of the INA but does not give the DACA recipient authorization to stay in the U.S. DHS asserts that the term “lawfully present” has no universal definition as it applies to the nuances of immigration enforcement.

Accordingly, the proposed rule states DACA recipients are classified as “lawfully present” but that does not confer any rights that would generally be conferred to those who have “lawful status” as it relates to immigration status. This proposed rule would emphasize this distinction and answer questions posed by the Southern District of Texas in its July District Court opinion.

Filing requirements and fees would be codified in the Code of Federal Regulations at 8 C.F.R. 274a.12. The proposed rule change would keep existing eligibility requirements and total application fees the same for most applicants.

The rule does propose a change in the fee structure of the DACA application. The existing total fee is $495. This existing fee is composed of a $410 fee for Form I-795, the employment authorization form and a $85 fee for the biometrics portion of the application. The proposed rule would make the employment authorization form optional for those who are not interested in working.

This would lower the charge for the application to $85 for an applicant uninterested in work authorization and keep the total fee at $495 for an applicant who is interested in work authorization. The new policy would also automatically terminate a DACA recipient’s work authorization upon termination of the DACA grant.

The comment period for this proposed rulemaking package is open now and will end Nov. 29, 2021. Comments must be submitted online through the Federal eRulemaking Portal.

Nicole Ezeh is a legislative specialist in NCSL’s State-Federal Relations Program.

Email Nicole.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.