The Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) on the Deferred Action for Childhood Arrivals (DACA) policy in September, and comments are due Monday, November 29.
In the spirit of Thanksgiving, we applaud DHS for taking the important step of codifying the DACA policy in regulation, but we think there is some room for improvement to meet President Biden’s directive to preserve and fortify it.
First, we think DHS should expand the DACA policy by changing some reference dates. The DACA policy was originally laid out in what is known as the Napolitano Memo, which set a 5-year residency requirement prior to application, plus a requirement to be in the U.S. with an unlawful status on the date the Memo was issued. Preserving the intent of these policies requires updating the dates themselves. Rather than requiring a 5-year residency requirement as originally intended, continuing to use the same reference date now requires a 14-year residency requirement. Similarly, rather than requiring applicants to show residency and unlawful status contemporaneously with the issuance of the Memo, sticking with the same date would now require applicants to show their presence and status over nine years ago. Updating these reference dates would allow DHS to continue to offer deferred action on a case-by-case basis only to those applicants who can demonstrate longstanding ties to the U.S. and important contributions to local communities without intent to violate the law.
Second, we think DHS should require notice of intent to terminate DACA with an opportunity to respond to all DACA grantees. Currently, a subgroup of DACA grantees who are part of the class in the Inland Empire – Immigrant Youth Collective v. Nielsen case receive a notice of intent to terminate and have an opportunity to respond before a final decision is made. These minimal process changes have not undermined DHS’ discretionary authority, but rather have given DHS the information needed to make an accurate determination under the totality of the circumstances as outlined in the DACA policy. All DACA grantees should have the same opportunity.
Third, we think DHS should continue to support a single-step application process for deferred action and employment authorization, rather than separating the two as proposed in the NPRM. The NPRM suggests that separating the two applications would save applicants money because not all applicants want employment authorization and some applicants who are denied deferred action would never have to pay the extra fee associated with the employment authorization application. While it is laudable that DHS is trying to save applicants money, we think this policy could have serious negative consequences, including making the process more confusing and cumbersome and creating gaps in which DACA grantees are unable to work because their employment authorization application is still pending. Instead of separating the two applications, we suggest DHS expand use of fee waivers to make the process more affordable.
Finally, we believe that DHS should clarify that DACA grantees are lawfully present for purposes of eligibility for health coverage. In the NPRM, DHS describes an intent to treat those with DACA status the same as those with other deferred action statuses, but in order to do so, DHS needs to clarify that DACA grantees should be treated the same with respect to health coverage programs. Aligning the definition of lawfully present would allow DACA grantees to qualify for Medicaid and CHIP in states that have adopted the CHIPRA §214/ICHIA option or subsidized Marketplace coverage depending on family income.
The DACA policy has allowed over 825,000 young people to deepen their roots in the U.S. by giving them peace of mind and the ability to work. Our communities and economy have also benefited. Unfortunately, the Trump Administration’s efforts to repeal the policy as well as multiple lawsuits have made it harder and harder for DACA grantees to rely on the policy going forward. Finalizing this regulation, with some improvements, would go a long way toward bringing much needed reassurance to current DACA grantees and (hopefully) to a new class of DACA applicants too.