Biden Administration Proposes New DACA Rule Aimed at Preserving the Program

In the wake of a recent legal decision declaring the Deferred Action for Childhood Arrivals (DACA) program illegal, the Department of Homeland Security (DHS) has proposed a new regulation for the program in an attempt to ward off future legal challenges.

The recent ruling, which the Department of Justice is in the process of appealing, found the DACA program illegal because its creation by an executive order did not subject it to the notice and comment rulemaking process that is typical of major regulatory action. This new proposal by DHS will involve a full comment period that the administration hopes will prevent similar legal action in the future.

The proposed rules do not change the eligibility criteria for the DACA program or make major substantive changes. If enacted, the rules would decouple work authorization for individuals from protection against deportation so applicants could choose to seek one without also having to apply for the other. This change would ensure that even if future legal action strikes down the work authorization component of the program, recipients still could benefit from deferred deportation protections.

Since the DACA program’s creation in 2012,  it has faced numerous legal proceedings, including a 2020 Supreme Court ruling, and attempts to both bolster and limit it. While this formal regulatory action would strengthen the legal underpinnings of the DACA program, NACUBO and other higher education associations continue to call on Congress to pass legislation codifying the program, which would eliminate the near-constant uncertainty that DACA recipients contend with as they complete their postsecondary education.

Additional higher education resources for DACA recipients and their institutions are available here.