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USCIS Publishes Final DACA Reinstatement Regulation

September 6, 2022

On August 24, 2022, United States Citizenship and Immigration Services (USCIS) published its long-awaited Deferred Action for Childhood Arrivals (DACA) Final Rule, which allows USCIS to grant DACA renewal requests after October 31, 2022. An injunction from July 16, 2021, issued by the U.S. District Court for the Southern District of Texas, currently in effect, prevents USCIS from approving initial DACA requests and employment authorization.  

As outlined in our previous alert the DACA program allows undocumented immigrants who arrived in the U.S. as children to apply for renewable, two-year work permits and to be protected from deportation from the U.S. based on their undocumented status. It requires that applicants are either “in school” or have completed a high school education. It has been extremely successful, allowing over 800,000 recipients to remain and work in the U.S.  Although the DACA program is not equivalent to a lawful permanent resident status, recipients of the program are considered “lawfully present” for purposes of lawful employment.

The impact of the DACA program over the past decade cannot be overstated, as evidenced by the following metrics:

  • Approximately 30,000 DACA recipients are healthcare workers, many of whom have fought on the frontlines during the COVID-19 pandemic.
  • DACA recipients pay about $5.6 billion in annual federal taxes and about $3.1 billion in annual state and local taxes.
  • An estimated 56,000 DACA recipients own homes and are directly responsible for $566.7 million in annual mortgage payments.

The new Rule features several key highlights, including:

  • It reinstates the DACA program and its eligibility criteria as a response to the program’s invalidation by a federal court in 2021. Current recipients with a valid work permit under DACA do not need to apply for new work permit cards or DACA status.
  • It allows current DACA recipients to continue to enjoy the benefits of the program and to apply for renewal of DACA in the future.
  • It does not expand the pool of eligible DACA applicants.
  • It allows for automatic termination of a DACA-employment based authorization document (work permit) upon termination of a grant of DACA status.
  • It codifies that DACA recipients are lawfully present in the U.S. for purposes of employment and social security benefits.
  • It specifies that DACA recipients do not accumulate unlawful presence in the U.S. during the duration of their DACA status.

We will continue to monitor developments related to DACA and other USCIS immigration programs and timely inform our clients. If you employ DACA recipients or you are a DACA recipient interested in renewing your DACA status and employment authorization, you may contact a member of our Immigration Practice.  

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Hernández García, Edwin M. Associate Associate 212.574.0320 VCard
Levine, Roxanne H. Partner Partner 212.216.1122 VCard

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