DHS Finalizes DACA Regulations To Protect Young DREAMers


[For most update information on DACA health coverage, see this blog post.]

The Department of Homeland Security (DHS) recently finalized regulations on the Deferred Action for Childhood Arrivals (DACA) policy, bringing much needed reassurance to DACA grantees, sometimes called “DREAMers.” After the proposed rule was issued last fall, we submitted comments suggesting DHS adopt a few key program improvements in order to fulfill President Biden’s Executive Order to preserve and fortify DACA. Let’s see if DHS took our advice.

Update the eligibility 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. We suggested updating these reference dates to preserve the intent of the policy, but DHS did not adopt these suggestions. As a result, the group of people eligible for deferred action under DACA has not changed. Current DACA grantees are still protected and will be able to continue renewing. DHS will also continue accepting new applications, but a 2021 court order is preventing them from processing new applications.

Include notice and an opportunity to respond prior to terminating DACA

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. We suggested extending this policy to all DACA grantees, and on this point, DHS was persuaded by the commenters. The final rule requires that nearly all DACA grantees receive a notice of intent to terminate with an opportunity to respond prior to termination, except in the case of certain criminal convictions related to national security and public safety.

Continue to support a single-step application process for deferred action and employment authorization

The NPRM proposed separating the application for deferred action and the application for employment authorization, but we suggested DHS keep these two processes combined. Many commenters shared our concerns that separating deferred action and employment authorization would lead to confusion and could create harmful gaps in which DACA grantees are unable to work. DHS was persuaded by the comments and in the final rule, the process for requesting DACA remains the same.

Align the definition of “lawfully present” to allow DACA grantees access to critical health coverage programs

Despite being “lawfully present,” DACA grantees are ineligible for Medicaid and CHIP. We suggested DHS align the definition of “lawfully present” and treatment of people with different deferred action statuses to allow DACA grantees access to critical health coverage programs. However, in the final rule, DHS said they do not have the authority to do so. Therefore, DACA grantees will continue to be at greater risk of being uninsured.

The regulation is slated to go into effect on October 31, 2022. And while having the DACA policy codified in regulation is an important step in the right direction, it does not replace the need for a more permanent, legislative solution. For more information about proposed immigration reform bills, visit the National Immigration Law Center.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.