The U.S. Department of Homeland Security (DHS) has announced a notice of proposed rulemaking (NPRM) that would preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy.

If finalized as proposed, this NPRM would codify the existing DACA policy with a few limited changes, including:

• Modifying the existing filing process and fees for DACA by making the request for employment authorization on Form I-765, Application for Employment Authorization, optional and charging a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals; the current cumulative fees for both a DACA request and optional employment authorization would remain $495, absent any separate fee increase for the Form I-765 generally;
• Providing clarity in procedures for termination of DACA and employment authorization, including when DHS will provide an opportunity for the DACA recipient to respond before a DHS decision;
• Providing clarity to DHS’s longstanding information sharing and use policy for information provided by DACA requestors; and
• Reiterating our long-standing policy that a noncitizen who has been granted deferred action is considered “lawfully present” for certain public benefits and does not accrue “unlawful presence” for purposes of section 212(a)(9) of the Immigration and Nationality Act.

Meanwhile, the NPRM allows for a 60-day public comment period that begins once published on September 28 and closes on November 29.

Comments may be submitted through Regulations.gov under DHS Docket No. USCIS-2021-0006.

On June 15, 2012, DHS established the DACA policy. The policy directed USCIS to create a process under which DHS exercises prosecutorial discretion, on an individual case-by-case basis, by deferring action against certain individuals who came to the U.S. as children, meet other guidelines, and warrant a favorable exercise of discretion. Since that time, more than 825,000 people have received deferred action under this policy.

On January 20, 2021, President Joe Biden directed DHS, in consultation with the attorney general, to take all appropriate action to preserve and fortify DACA, consistent with applicable law.

“Consistent with the president’s direction and the secretary’s broad authorities to administer and enforce the immigration laws, DHS is proposing to issue a rule to preserve and fortify DACA,” DHS said in a statement.