The Biden administration last week released the final version of regulations aiming to strengthen the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
The regulations mark the first time DACA has gone through a formal rulemaking process, and aim to provide protections for DACA against ongoing court challenges after years of legal wrangling under both the Obama and Trump administrations. A decision is pending in the Fifth Circuit Court of Appeals in a case asking the court to rule the program unlawful and to end it, though any decision likely will be appealed to the Supreme Court.
The final regulations largely stick to the current structure of DACA as established in 2012. The final rule provides a definition of "deferred action" as a temporary forbearance from removal from the United States, and "does not confer any right or entitlement to remain in or to re-enter the U.S." The regulations also include the eligibility criteria that have previously been used for the program: the applicant must have come to the United States at or before the age of 16; have continuously resided in the U.S. since June 15, 2007; have graduated, be currently enrolled in school, or be honorably discharged from the armed services; not have been convicted of a felony or certain misdemeanors; have been born on or after June 16, 1981; and be at least 15 years of age at the time of filing the request.
Comments submitted last fall by ACE on behalf of 45 other higher education associations asked the Department of Homeland Security to expand the eligibility criteria to include more Dreamers under the program, but the final rule failed to do that. However, the final rule did make one change requested by the higher education community comments: instead of separating work authorization and deferred action, as proposed by the draft regulations, the final rule keeps those tied together, as Bloomberg Law reported.
ACE President Ted Mitchell praised the final rule, but noted that it is only a limited step toward giving Dreamers the certainty they deserve. He called on Congress to take action now.
"These final regulations provide some clarity and certainty to the outstanding and talented young people caught for far too long in legal and political limbo," Mitchell said as a part of a statement released last week. "However, this must be viewed as a welcome but limited step on the path to a permanent legislative solution that will protect Dreamers and allow them to feel secure in the only country most have ever regarded as home."