Everything you need to know about the newly implemented final rule
The Department of Homeland Security has announced a limited implementation of the DACA program under the new final rule starting October 31. The new DACA rule retains the original benefits granted by the program and foresees the incorporation of new applicants. However, due to the legal challenges that plague the program, USCIS cannot process any initial DACA applications.
DACA: the basic facts
The Deferred Action for Childhood Arrivals (DACA) is an immigration policy created during the Obama Administration in 2012. DACA was established through a policy memorandum issued by Janet Napolitano, who was the DHS Secretary at the time.
About 800,000 young immigrants who had arrived in the United States as children were able to obtain work authorization and deferred action, which radically improved their economic and professional opportunities in the country and allowed them to stay in the US with their families and loved ones.
The lawsuit against DACA
- Back in 2018 a coalition of states led by Texas filed a lawsuit against the DACA program. The lawsuit challenged the legality of the immigration policy, claiming that the Obama Administration had not followed proper procedures to implement the program, and it was therefore unlawful.
- In 2021, US District Court Andrew Hanen ruled that the program was unlawful given the way it had been implemented – via memorandum – but allowed current recipients to keep their immigration benefits. The Biden Administration appealed the verdict, and the case went to the US Court of Appeals for the Fifth Circuit.
- On October 5, 2022, the Court of Appeals affirmed Hanen’s previous ruling, and sent the case back to the Texas District Court. Judge Hanen will then have to decide whether the Biden Administration has implemented the necessary changes to fix DACA’s legal issue.
Measures taken by the Biden Administration to protect DACA
The Biden Administration has made a public commitment to preserve and fortify DACA, but the government can only do so much without proper legislation in place to protect the program.
Even if a final DACA rule has been issued to solve the legal status problem, the final decision is in the hands of judge Hanen. DHS Secretary Alejandro Mayorkas called for Congress to pass urgent legislation that provides a permanent solution for Dreamers, as government policies continue to be challenged via lawsuits.
Upcoming elections and DACA
Any plans the Biden Administration may have about passing legislation on immigration reform – including DACA – rely on the results of the midterm elections, as they will need to control Congress to ensure any of their projects come to fruition.
Voting forecasts were not particularly positive for the Democratic Party, as the first two years of Biden’s term were marked by crisis – economic, political, sanitary, international and humanitarian. However, they might still have a chance to turn the election around if there’s an uptick in voter turnout. Younger people are less likely to vote, but according to research data, their political views are more likely to align with the Democratic Party.
What can I do if I’m eligible for DACA?
You can present your initial DACA application with USCIS. However, your application will not be processed while the court-ordered partial stay is in place.
Even if you qualify for DACA under the final rule, you should consult an immigration lawyer before presenting your initial application. Because of the ongoing lawsuit, the continuity of the program is uncertain, and with no legislation in place to protect the program, you should explore all your immigration options to make an informed decision regarding your case.
Many immigrants qualify for other immigration benefits, such as family-based green cards or special visas like the U-Visa. If you would like to explore your immigration options, the Law Office of Shelle-Ann Simon provides legal advice for immigrant clients in Houston, Texas and all 50 states.
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