Reacting to a ruling from a federal district court judge in Texas, the Biden Administration proposed a new DACA (Deferred Action for Childhood Arrivals) rule that would strengthen protections for the “Dreamers.”

DACA has been under attack since 2017, when the Trump Administration announced it would terminate the program. Litigation has prevented that from happening, but in July 2021, U.S. District Court Judge Andrew Hanen in State of Texas et al. v. U.S. et al. ruled, primarily on technical grounds, that DACA was illegal. Judge Hanen, recognizing the substantial reliance interests involved, allowed current DACA beneficiaries to continue to review their statuses (at least while appeals were pending), but has prevented the approval of any new DACA applications.

To overcome the argument that DACA was illegal because it was created by President Barack Obama by a memorandum, the Biden Administration is basically recreating the program through the rulemaking process, including a 60-day comment period. The eligibility requirements are the same as in the old rule. Applicants:

  • Must have come to the United States before turning 16 years of age;
  • Must have continuously resided in the United States from June 15, 2007, to the time of filing;
  • Must have been physically present in the United States on June 15, 2007, and on the date of filing;
  • Must be enrolled in school, have graduated from high school, earned a GED, or been honorably discharged from the U.S. military (including the Coast Guard); and
  • Cannot have any felonies nor certain misdemeanors on their record and cannot pose a threat to national security or public safety.

There are a few new wrinkles:

  • The application process and filing fees are modified;
  • A specific category for DACA Employment Authorization Documents is established; and
  • The rule clarifies that DACA beneficiaries are “lawfully present” for Social Security purposes.

Many comments are expected during the Notice and Comment period, so it may take some time for this new rule to go into effect. In the meantime, legislation continues to be the best way to solidify DACA and give DACA beneficiaries a pathway to citizenship. The Senate Parliamentarian, however, has determined that DACA cannot fit into a reconciliation strategy and getting bipartisan agreement for the Dreamers will be a difficult task.

Meanwhile, the Biden Administration has appealed Judge Hanen’s ruling and those with DACA status may continue to renew their status and their employment authorization when necessary.

Jackson Lewis attorneys are available to assist you with any questions about DACA and DACA employment authorization.


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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.