[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Proposed Rules]
[Pages 53736-53816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20898]



[[Page 53735]]

Vol. 86

Tuesday,

No. 185

September 28, 2021

Part II





Department of Homeland Security





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8 CFR Parts 106, 236, and 274a





Deferred Action for Childhood Arrivals; Proposed Rule

  Federal Register / Vol. 86 , No. 185 / Tuesday, September 28, 2021 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 236, and 274a

[CIS No. 2691-21; DHS Docket No. USCIS-2021-0006]
RIN 1615-AC64


Deferred Action for Childhood Arrivals

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On June 15, 2012, the U.S. Department of Homeland Security 
(DHS) established the Deferred Action for Childhood Arrivals (DACA) 
policy. The policy--which describes the Secretary of Homeland 
Security's (Secretary's) exercise of her prosecutorial discretion in 
light of the limited resources that DHS has for removal of undocumented 
noncitizens--directed U.S. Citizenship and Immigration Services (USCIS) 
to create a process to defer removal of certain noncitizens who years 
earlier came to the United States as children, meet other criteria, and 
do not present other circumstances that would warrant removal. Since 
that time, more than 825,000 people have applied successfully for 
deferred action under this policy. On January 20, 2021, President Biden 
directed DHS, in consultation with the Attorney General, to take all 
appropriate actions to preserve and fortify DACA, consistent with 
applicable law. On July 16, 2021, the U.S. District Court for the 
Southern District of Texas vacated the June 2012 memorandum that 
created the DACA policy and what the court called the ``DACA program,'' 
and it permanently enjoined DHS from ``administering the DACA program 
and from reimplementing DACA without compliance with'' the 
Administrative Procedure Act (APA). However, the district court 
temporarily stayed its vacatur and injunction with respect to most 
individuals granted deferred action under DACA on or before July 16, 
2021, including with respect to their renewal requests. The district 
court's vacatur and injunction were based, in part, on its conclusion 
that the June 2012 memorandum announced a legislative rule that 
required notice-and-comment rulemaking. The district court further 
remanded the ``DACA program'' to DHS for further consideration. DHS has 
appealed the district court's decision. Pursuant to the Secretary's 
broad authorities to administer and enforce the immigration laws, 
consistent with the district court's direction to consider a number of 
issues on remand, and after careful consideration of the arguments and 
conclusions on which the district court's decision is based, DHS puts 
forward for consideration the following proposed rule. DHS invites 
public comments on the proposed rule and possible alternatives.

DATES: Written comments and related material must be submitted on or 
before November 29, 2021.

ADDRESSES: You may submit comments on the entirety of this proposed 
rulemaking package, identified by DHS Docket No. 2021-0006, through the 
Federal eRulemaking Portal at https://www.regulations.gov. Follow the 
website instructions for submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS or USCIS officials, will not be 
considered comments on the proposed rule and may not receive a response 
from DHS. Please note that DHS and USCIS cannot accept any comments 
that are hand-delivered or couriered. In addition, USCIS cannot accept 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives. USCIS also is not accepting mailed comments 
at this time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at (240) 721-3000 for alternate instructions.
    For additional instructions on sending comments, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: Andria Strano, Acting Chief, Office of 
Policy and Strategy, Division of Humanitarian Affairs, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 5900 Capital 
Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Major Provisions of the Regulatory Action
    C. Costs and Benefits
III. Background, Authority, and Purpose
    A. History of Discretionary Reprieves From Removal
    B. Litigation History
    C. Forbearance From Enforcement Action
    D. Employment Authorization
    E. Lawful Presence
    F. Fees
    G. Advance Parole
    H. Further Analysis, Alternatives, and Call for Comments
IV. Provisions of Proposed Rule
    A. Section 106.2--Fees
    B. Section 236.21--Applicability
    C. Section 236.22--Discretionary Determination
    D. Section 236.23--Procedures for Request, Terminations, and 
Restrictions on Information Use
    E. Section 236.24--Severability
    F. Section 236.25--No Private Rights
V. Statutory and Regulatory Requirements
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 13132: Federalism
    F. Executive Order 12988: Civil Justice Reform
    G. Paperwork Reduction Act--Collection of Information
    H. Family Assessment
    I. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    J. National Environmental Policy Act
    K. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    L. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks

List of Abbreviations

APA Administrative Procedure Act
AST Autonomous Surveillance Tower
BLS Bureau of Labor Statistics
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CLAIMS Computer-Linked Application Information Management System
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
DAPA Deferred Action for Parents of Americans and Lawful Permanent 
Residents
DED Deferred enforced departure
DHS Department of Homeland Security
DOJ Department of Justice
DREAM Act Development, Relief, and Education for Alien Minors Act
EAD Employment authorization document
ELIS Electronic Immigration System
E.O. Executive Order
EOIR Executive Office for Immigration Review
EPS Egregious public safety
EVD Extended voluntary departure
FAIR Federation for American Immigration Reform
FLCRAA Farm Labor Contractor Registration Act Amendments of 1974

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FR Federal Register
FY Fiscal Year
GED General Education Development
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IMMACT 90 Immigration Act of 1990
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IRCA Immigration Reform and Control Act of 1986
MPI Migration Policy Institute
NEPA National Environmental Policy Act
NOA Notice of action
NOIT Notice of intent to terminate
NTA Notice to appear
OCFO Office of the Chief Financial Officer
OI Operations Instructions
OIRA Office of Information and Regulatory Affairs
OIS Office of Immigration Statistics
OMB Office of Management and Budget
OPQ Office of Performance and Quality
PRA Paperwork Reduction Act of 1995
PRWORA Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996
Pub. L. Public Law
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulation Identifier Number
RTI Referral to ICE
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Homeland Security
SORN System of Record Notice
Stat. U.S. Statutes at Large
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
VAWA Violence Against Women Act of 1994
VPC Volume Projection Committee
VTVPA Victims of Trafficking and Violence Protection Act of 2000

I. Public Participation

    DHS invites all interested parties to participate in this 
rulemaking by submitting written data, views, comments, and arguments 
on all aspects of this proposed rule. DHS also invites comments that 
relate to the economic, environmental, or federalism effects of this 
proposed rule. Comments must be submitted in English, or an English 
translation must be provided. Comments that will provide the most 
assistance to USCIS in implementing these changes will refer to a 
specific portion of the proposed rule; explain the reason for any 
recommended change; and include data, information, or authority that 
supports such recommended change. Comments submitted in a manner other 
than the one listed above, including emails or letters sent to DHS or 
USCIS officials, will not be considered comments on the proposed rule 
and may not receive a response from DHS.
    Instructions: If you submit a comment, you must include the agency 
name (U.S. Citizenship and Immigration Services) and the DHS Docket No. 
USCIS-2021-0006 for this rulemaking. All comments or materials 
submitted in the manner described above will be posted, without change, 
to the Federal eRulemaking Portal at https://www.regulations.gov and 
will include any personal information you provide. Therefore, 
submitting this information makes it public. You may wish to consider 
limiting the amount of personal information that you provide in any 
voluntary public comment submission you make to DHS. DHS may withhold 
from public viewing information provided in comments that it determines 
may impact the privacy of an individual or is offensive. For additional 
information, please read the Privacy Notice available at https://www.regulations.gov/privacy-notice.
    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing 
DHS Docket No. USCIS-2021-0006. You also may sign up for email alerts 
on the online docket to be notified when comments are posted or a final 
rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

    On June 15, 2012, then-Secretary Janet Napolitano issued a 
memorandum providing new guidance for the exercise of prosecutorial 
discretion with respect to certain young people who came to the United 
States years earlier as children, who have no current lawful 
immigration status, and who were already generally low enforcement 
priorities for removal.\1\ The Napolitano Memorandum states that DHS 
will consider granting ``deferred action,'' on a case-by-case basis, 
for individuals who:
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    \1\ Memorandum from Janet Napolitano, Secretary, DHS, to David 
V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection 
(CBP), et al. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (hereinafter Napolitano Memorandum).
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    1. Came to the United States under the age of 16;
    2. Continuously resided in the United States for at least 5 years 
preceding June 15, 2012, and were present in the United States on that 
date;
    3. Are in school, have graduated from high school, have obtained a 
General Education Development (GED) certificate, or are an honorably 
discharged veteran of the Coast Guard or Armed Forces of the United 
States;
    4. Have not been convicted of a felony offense, a significant 
misdemeanor offense, or multiple misdemeanor offenses, or otherwise do 
not pose a threat to national security or public safety; and
    5. Were not above the age of 30 on June 15, 2012.\2\
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    \2\ Id.
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    Individuals who request relief under this policy, meet the criteria 
above, and pass a background check may be granted deferred action.\3\ 
Deferred action is a longstanding practice by which DHS and the former 
Immigration and Naturalization Service (INS) have exercised their 
discretion to forbear or assign lower priority to removal action in 
certain cases for humanitarian reasons, administrative convenience, or 
other reasonable prosecutorial discretion considerations.\4\
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    \3\ Id.
    \4\ See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 
U.S. 471, 484 (1999) (AADC); 8 CFR 274a.12(c)(14).
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    In establishing this policy, known as DACA, then-Secretary 
Napolitano emphasized that for the Department to use its limited 
resources in a strong and sensible manner, it necessarily must exercise 
prosecutorial discretion. Then-Secretary Napolitano observed that these 
``young people . . . were brought to this country as children and know 
only this country as home'' and as a general matter ``lacked the intent 
to violate the law,'' reasoning that limited enforcement resources 
should not be expended to ``remove productive young people to countries 
where they may not have lived or even speak the language.'' \5\ The 
Napolitano Memorandum also instructs that the individual circumstances 
of each case must be considered and that deferred action should be 
granted only where justified.\6\
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    \5\ Napolitano Memorandum.
    \6\ Id.
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    Since 2012, more than 825,000 people have applied successfully for 
deferred action under the DACA policy.\7\ On average, DACA recipients 
arrived in the United States in 2001 and at the age of 6.\8\ In 
addition, 38 percent of recipients

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arrived before the age of 5.\9\ For many, this country is the only one 
they have known as home. In the nearly 10 years since this policy was 
announced, DACA recipients have grown into adulthood and built lives 
for themselves and their loved ones in the United States. They have 
gotten married and had U.S. citizen children. Over 250,000 children 
have been born in the United States with at least one parent who is a 
DACA recipient, and about 1.5 million people in the United States share 
a home with a DACA recipient.\10\ DACA recipients have obtained 
driver's licenses and credit cards, bought cars, and opened bank 
accounts.\11\ In reliance on DACA, its recipients have enrolled in 
degree programs, started businesses, obtained professional licenses, 
and purchased homes.\12\ Depending on the health insurance that their 
deferred action allowed them to obtain through employment or State-
sponsored government programs, DACA recipients have received improved 
access to health insurance and medical care and have sought treatment 
for long-term health issues.\13\ For DACA recipients and their family 
members, the conferral of deferred action has increased DACA 
recipients' sense of acceptance and belonging to a community, increased 
their sense of hope for the future, and given them the confidence to 
become more active members of their communities and increase their 
civic engagement.\14\
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    \7\ See USCIS, DACA Quarterly Report (FY 2021, Q1), https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf. As of the end of CY 2021, 
there were over 636,00 active DACA recipients in the United States. 
See USCIS, Count of Active DACA Recipients By Month of Current DACA 
Expiration (Dec. 31, 2020), https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf.
    \8\ DHS, USCIS, Office of Performance and Quality (OPQ), 
Electronic Immigration System (ELIS) and Computer-Linked Application 
Information Management System (CLAIMS) 3 Consolidated (queried Mar. 
2021).
    \9\ Id.
    \10\ Nicole Prchal Svajlenka and Philip E. Wolgin, What We Know 
About the Demographic and Economic Impacts of DACA Recipients: 
Spring 2020 Edition, Center for American Progress (Apr. 6, 2020), 
https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition (hereinafter Svajlenka and Wolgin (2020)).
    \11\ See Roberto G. Gonzales and Angie M. Bautista-Chavez, Two 
Years and Counting: Assessing the Growing Power of DACA, American 
Immigration Council (June 2014); Zen[eacute]n Jaimes P[eacute]rez, A 
Portrait of Deferred Action for Childhood Arrivals Recipients: 
Challenges and Opportunities Three Years Later, United We Dream 
(Oct. 2015), https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf (hereinafter Jaimes P[eacute]rez (2015)); 
Tom K. Wong, et al., Results from Tom K. Wong et al., 2020 National 
DACA Study, https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf (hereinafter Wong (2020)).
    \12\ See Roberto G. Gonzales, et al., The Long-Term Impact of 
DACA: Forging Futures Despite DACA's Uncertainty, Immigration 
Initiative at Harvard (2019), https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf (hereinafter Gonzales (2019)); Wong (2020).
    \13\ Gonzales (2019).
    \14\ Gonzales (2019); Jaimes P[eacute]rez (2015); Wong (2020).
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    The DACA policy has encouraged its recipients to make significant 
investments in their careers and education. Many DACA recipients report 
that deferred action--and the employment authorization that DACA 
permits them to request--has allowed them to obtain their first job or 
move to a higher paying position more commensurate with their 
skills.\15\ DACA recipients are employed in a wide range of 
occupations, including management and business, education and training, 
sales, office and administrative support, and food preparation; 
thousands more are self-employed in their own businesses.\16\ They have 
continued their studies, and some have become doctors, lawyers, nurses, 
teachers, or engineers.\17\ About 30,000 are health care workers, and 
many of them have helped care for their communities on the frontlines 
during the COVID-19 pandemic.\18\ In 2017, 72 percent of the top 25 
Fortune 500 companies employed at least one DACA recipient.\19\
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    \15\ Roberto G. Gonzales, et al., Becoming DACAmented: Assessing 
the Short-Term Benefits of Deferred Action for Childhood Arrivals 
(DACA), 58 Am. Behav. Scientist 1852 (2014); Wong (2020); see also 
Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred 
Action for Childhood Arrivals on Unauthorized Immigrants, 143 J. of 
Pub. Econ. 98 (2016), http://www.econweb.umd.edu/~pope/
daca_paper.pdf (hereinafter Pope (2016)) (finding that DACA 
increased participation in the labor force for undocumented 
immigrants).
    \16\ Nicole Prchal Svajlenka, What We Know About DACA Recipients 
in the United States, Center for American Progress (Sept. 5, 2019), 
https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states; Jie Zong, et al., A 
Profile of Current DACA Recipients by Education, Industry, and 
Occupation, Migration Policy Institute (Nov. 2017), https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf (hereinafter Zong 
(2017)).
    \17\ See Gonzales (2019); Nicole Prchal Svajlenka, A Demographic 
Profile of DACA Recipients on the Frontlines of the Coronavirus 
Response, Center for American Progress (April 6, 2020), https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response 
(hereinafter Svajlenka (2020)); Wong (2020); Zong (2017).
    \18\ Svajlenka (2020). DACA recipients who are health care 
workers also are helping to alleviate a shortage of health care 
professionals in the United States and they are more likely to work 
in underserved communities where shortages are particularly dire. 
Angela Chen, et al., PreHealth Dreamers: Breaking More Barriers 
Survey Report at 27 (Sept. 2019) (presenting survey data showing 
that 97 percent of undocumented students pursuing health and health-
science careers planned to work in an underserved community); Andrea 
N. Garcia, et al., Factors Associated with Medical School Graduates' 
Intention to Work with Underserved Populations: Policy Implications 
for Advancing Workforce Diversity, Acad. Med. (Sept. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635 (finding that 
underrepresented minorities graduating from medical school are 
nearly twice as likely as white students and students of other 
minorities to report an intention to work with underserved 
populations).
    \19\ Tom K. Wong, et al., DACA Recipients' Economic and 
Educational Gains Continue to Grow, Center for American Progress 
(Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow (hereinafter Wong (2017)).
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    As a result of these educational and employment opportunities, DACA 
recipients make substantial contributions in taxes and economic 
activity.\20\ According to one estimate, as of 2020, DACA recipients 
and their households pay about $5.6 billion in annual Federal taxes and 
about $3.1 billion in annual State and local taxes.\21\ In addition, 
through their employment, they make significant contributions to Social 
Security and Medicare funds.\22\ Approximately two-thirds of recipients 
purchased their first car after receiving DACA,\23\ and an estimated 
56,000 DACA recipients own homes and are directly responsible for 
$566.7 million in annual mortgage payments.\24\ DACA recipients also 
are estimated to pay $2.3 billion in rental payments each year.\25\ 
Because of this, the communities of DACA recipients--who reside in all 
50 States and the District of Columbia \26\--in addition to the 
recipients themselves, have grown to rely on the economic contributions 
this policy facilitates.\27\ In

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sum, despite the express limitations in the Napolitano Memorandum, over 
the 9 years in which the DACA policy has been in effect, the good faith 
investments recipients have made in both themselves and their 
communities, and the investments that their communities have made in 
them, have been, in the Department's judgment, substantial.
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    \20\ Please see the Regulatory Impact Analysis (RIA) for this 
proposed rule, which can be found in Section V.A. The RIA includes 
analysis and estimates of the costs, benefits, and transfers that 
DHS expects this rule to produce. Please note that the estimates 
presented in the RIA are based on the specific methodologies 
described therein. Figures may differ from those presented in the 
sources discussed here. As noted below, USCIS welcomes input on the 
methodologies employed in the RIA, as well as any other data, 
information, and views related to the costs, benefits, and transfers 
associated with this rulemaking.
    \21\ Svajlenka and Wolgin (2020). See also Misha E. Hill and Meg 
Wiehe, State & Local Tax Contributions of Young Undocumented 
Immigrants, Institute on Taxation and Economic Policy (Apr. 2017) 
(analyzing the State and local tax contributions of DACA-eligible 
noncitizens in 2017).
    \22\ Jose Maga[ntilde]a-Salgado and Tom K. Wong, Draining the 
Trust Funds: Ending DACA and the Consequences to Social Security and 
Medicare, Immigrant Legal Resource Center (Oct. 2017); see also Jose 
Maga[ntilde]a-Salgado, Money on the Table: The Economic Cost of 
Ending DACA, Immigrant Legal Resource Center (Dec. 2016) (analyzing 
the Social Security and Medicare contributions of DACA recipients in 
2016).
    \23\ Wong (2017).
    \24\ Svajlenka and Wolgin (2020).
    \25\ Id.
    \26\ USCIS, Deferred Action for Childhood Arrivals (DACA) 
Quarterly Report (Fiscal Year 21, Q1) 6, https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf.
    \27\ Reasonable reliance on the existence of the DACA policy is 
distinct from reliance on a grant of DACA to a particular person. 
Individual DACA grants are discretionary and may be terminated at 
any time but communities, employers, educational institutions, and 
State and local governments have come to rely on the existence of 
the policy itself and its potential availability to those 
individuals who qualify.
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    This proposed rule responds to President Biden's memorandum of 
January 20, 2021, ``Preserving and Fortifying Deferred Action for 
Childhood Arrivals (DACA),'' \28\ in which President Biden stated:
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    \28\ 86 FR 7053 (hereinafter Biden Memorandum).

    DACA reflects a judgment that these immigrants should not be a 
priority for removal based on humanitarian concerns and other 
considerations, and that work authorization will enable them to 
support themselves and their families, and to contribute to our 
economy, while they remain.\29\
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    \29\ Id.

This proposed rule embraces the consistent judgment that has been 
maintained by the Department--and by three presidential administrations 
since the policy first was announced--that DACA recipients should not 
be a priority for removal.\30\ It is informed by the Department's 
experience with the policy over the past 9 years and the ongoing 
litigation concerning the policy's continued viability. It is 
particularly meant to preserve legitimate reliance interests in the 
continued implementation of the nearly decade-long policy under which 
deferred action requests will be considered, while emphasizing that 
individual grants of deferred action are, at bottom, an act of 
enforcement discretion to which recipients do not have a substantive 
right.
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    \30\ See id.; Sept. 5, 2017 Statement from President Donald J. 
Trump, https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7 (``I have advised [DHS] that 
DACA recipients are not enforcement priorities unless they are 
criminals, are involved in criminal activity, or are members of a 
gang.''); Napolitano Memorandum.
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    The proposed rule recognizes that enforcement resources are 
limited, that sensible priorities must necessarily be set, and that it 
is not generally the best use of those limited resources to remove 
productive young people to countries where they may not have lived 
since early childhood and whose languages they may not even speak. It 
recognizes that, as a general matter, DACA recipients, who came to this 
country many years ago as children, lacked the intent to violate the 
law, have not been convicted of any serious crimes, and remain valued 
members of our communities. It reflects the conclusion that, while they 
are in the United States, they should have access to a process that, 
operating on a case-by-case basis, may allow them to work to support 
themselves and their families, and to contribute to our economy in 
multiple ways. This proposed rule also accounts for the momentous 
decisions DACA recipients have made in ordering their lives in reliance 
on and as a result of this policy, and it seeks to continue the 
benefits that have accrued to DACA recipients, their families, their 
communities, and to the Department itself that have been made possible 
by the policy. DHS emphasizes that the DACA policy as proposed in this 
rule is not a permanent solution for the affected population and does 
not provide lawful status or a path to citizenship for noncitizens who 
came to the United States many years ago as children. Legislative 
efforts to find such a solution remain critical. On July 16, 2021, the 
U.S. District Court for the Southern District of Texas vacated the 2012 
DACA policy, finding, among other things, that it was contrary to the 
Immigration and Nationality Act of 1952 (INA).\31\ DHS is carefully and 
respectfully considering the analysis in that decision and its 
conclusions about DACA's substantive legality and invites comment on 
how, if correct, those conclusions should affect this rulemaking.
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    \31\ Texas v. United States, No. 1:18-cv-00068, 2021 WL 3025857 
(S.D. Tex. July 16, 2021) (Texas II July 16, 2021 memorandum and 
order).
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B. Summary of Major Provisions of the Regulatory Action

    This proposed rule would preserve and fortify DHS's DACA policy for 
the issuance of deferred action to certain young people who came to the 
United States many years ago as children, who have no current lawful 
immigration status, and who are generally low enforcement priorities. 
The proposed rule would include the following provisions of the DACA 
policy from the Napolitano Memorandum and longstanding USCIS practice:
     Deferred Action. The proposed rule would provide a 
definition of deferred action as a temporary forbearance from removal 
that does not confer any right or entitlement to remain in or re-enter 
the United States, and that does not prevent DHS from initiating any 
criminal or other enforcement action against the DACA recipient at any 
time.
     Threshold Criteria. The proposed rule would include the 
following longstanding threshold criteria: That the requestor must have 
(1) come to the United States under the age of 16; (2) continuously 
resided in the United States from June 15, 2007, to the time of filing 
of the request; (3) been physically present in the United States on 
both June 15, 2012, and at the time of filing of the DACA request; (4) 
not been in a lawful immigration status on June 15, 2012, as well as at 
the time of request; (5) graduated or obtained a certificate of 
completion from high school, obtained a GED certificate, currently be 
enrolled in school, or be an honorably discharged veteran of the Coast 
Guard or Armed Forces of the United States; (6) not been convicted of a 
felony, a misdemeanor described in the rule, or three or more other 
misdemeanors not occurring on the same date and not arising out of the 
same act, omission, or scheme of misconduct, or otherwise pose a threat 
to national security or public safety; and (7) been born on or after 
June 16, 1981, and be at least 15 years of age at the time of filing, 
unless the requestor is in removal proceedings, or has a final order of 
removal or a voluntary departure order. The proposed rule also would 
state that deferred action under DACA may be granted only if USCIS 
determines in its sole discretion that the requestor meets the 
threshold criteria and otherwise merits a favorable exercise of 
discretion.
     Procedures for Request, Terminations, and Restrictions on 
Information Use. The proposed rule would set forth procedures for 
denial of a request for DACA or termination of a grant of DACA, the 
circumstances that would result in the issuance of a notice to appear 
(NTA) or referral to U.S. Immigration and Customs Enforcement (ICE) 
(RTI), and the restrictions on use of information contained in a DACA 
request for the purpose of initiating immigration enforcement 
proceedings.
    In addition to proposing the retention of longstanding DACA policy 
and procedure, the proposed rule includes the following changes:
     Filing Requirements. The proposed rule would modify the 
existing filing process and fees for DACA by making the request for 
employment authorization on Form I-765, Application for Employment 
Authorization, optional and charging a fee of $85 for Form I-821D, 
Consideration of Deferred Action for Childhood Arrivals. DHS would 
maintain the current total cost to DACA requestors who also file Form 
I-765 of

[[Page 53740]]

$495 ($85 for Form I-821D plus $410 for Form I-765).
     Employment Authorization. The proposed rule would create a 
DACA-specific regulatory provision regarding eligibility for employment 
authorization for DACA deferred action recipients in a new paragraph 
designated at 8 CFR 274a.12(c)(33). The new paragraph would not 
constitute any substantive change in current policy; it merely would 
create a DACA-specific provision in addition to the existing provision 
dealing with deferred action recipients more broadly. Like that 
provision, this one would continue to specify that the noncitizen \32\ 
must have been granted deferred action and must establish economic need 
to be eligible for employment authorization.
---------------------------------------------------------------------------

    \32\ For purposes of this discussion, USCIS uses the term 
``noncitizen'' to be synonymous with the term ``alien'' as it is 
used in the INA.
---------------------------------------------------------------------------

     Automatic Termination of Employment Authorization. The 
proposed rule would automatically terminate employment authorization 
granted under 8 CFR 274.12(c)(33) upon termination of a grant of DACA.
     ``Lawful Presence.'' Additionally, the proposed rule 
reiterates USCIS' codification in 8 CFR 1.3(a)(4)(vi) of agency policy, 
implemented long before DACA, that a noncitizen who has been granted 
deferred action is considered ``lawfully present''--a specialized term 
of art that does not in any way confer authorization to remain in the 
United States--for the discrete purpose of authorizing the receipt of 
certain Social Security benefits consistent with 8 U.S.C. 1611(b)(2). 
The proposed rule also would reiterate longstanding policy that a 
noncitizen who has been granted deferred action does not accrue 
``unlawful presence'' for purposes of INA sec. 212(a)(9) (imposing 
certain admissibility limitations for noncitizens who departed after 
having accrued certain periods of unlawful presence in the United 
States).

C. Costs and Benefits

    The proposed rule would result in new costs, benefits, and 
transfers. To provide a full understanding of the impacts of DACA, DHS 
considers the potential impacts of this proposed rule relative to two 
baselines. The first baseline, the No Action Baseline, represents a 
state of the world under the current DACA policy; that is, the policy 
initiated by the guidance in the Napolitano Memorandum in 2012. For 
reasons explained in Section V.A.4.a.(1) below, this baseline does not 
directly account for the July 16, 2021 district court decision. The 
second baseline, the Pre-Guidance Baseline, represents a state of the 
world where the DACA policy does not exist, a world as it existed 
before the guidance in the Napolitano Memorandum. DHS emphasizes that 
the Pre-Guidance Baseline gives clarity about the impact of the DACA 
policy as such, and that it is, therefore, the more useful baseline for 
understanding the costs and benefits of that policy. Relative to that 
baseline, the monetized benefits, including above all income earnings, 
greatly exceed the monetized costs. DHS also notes that the Pre-
Guidance Baseline analysis also can be used to better understand the 
state of the world under the July 16, 2021 district court decision, 
should the stay of that decision ultimately be lifted.
    Table 1 provides a detailed summary of the proposed provisions and 
their potential impacts relative to the No Action Baseline. Table 2 
provides a detailed summary of the proposed provisions and their 
potential impacts relative to the Pre-Guidance Baseline.
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BILLING CODE 9111-97-C

III. Background, Authority, and Purpose

    Section 102 of the Homeland Security Act of 2002 \33\ and section 
103 of the INA \34\ generally charge the Secretary with the 
administration and enforcement of the immigration and naturalization 
laws of the United States.\35\ The INA further authorizes the Secretary 
to ``establish such regulations; prescribe such forms of bond, reports, 
entries, and other papers; issue such instructions; and perform such 
other acts as he deems necessary for carrying out his authority under 
the provisions of'' the INA.\36\ In the Homeland Security Act of 2002, 
Congress also provided that the Secretary ``shall be responsible for . 
. . [e]stablishing national immigration enforcement policies and 
priorities.'' \37\ The Homeland Security Act also provides that the 
Secretary, in carrying out their authorities, must ``ensure that the 
overall economic security of the United States is not diminished by 
efforts, activities, and programs aimed at securing the homeland.'' 
\38\
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    \33\ Public Law 107-296, sec. 102(a)(3), 116 Stat. 2135, 2143 
(codified at 6 U.S.C. 112(a)(3)).
    \34\ Public Law 82-414, 66 Stat. 163 (as amended).
    \35\ INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also vests 
certain authorities in the President, Attorney General, and 
Secretary of State, among others. See id.
    \36\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
    \37\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 
(codified at 6 U.S.C. 202(5)).
    \38\ 6 U.S.C. 111(b)(1)(F).
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    The Secretary proposes in this rule to establish specified 
guidelines for considering requests for deferred action submitted by 
certain individuals who came to the United States many years ago as 
children. This proposed rule would help appropriately focus the 
Department's limited immigration enforcement resources on threats to 
national security, public safety, and border security where they are 
most needed. In doing so, the proposed rule also would serve the 
significant humanitarian and economic interests animating and 
engendered by the DACA policy. In addition, the proposed rule would 
preserve not only DACA recipients' serious reliance interests, but also 
those of their families, schools, employers, faith groups, and 
communities.\39\ Above all, DHS is committed to a rulemaking process 
and outcome that is entirely consistent with the broad authorities and 
enforcement discretion conferred upon the Secretary in the INA and the 
Homeland Security Act.
---------------------------------------------------------------------------

    \39\ See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 
1914 (2020) (Regents) (``DACA recipients have `enrolled in degree 
programs, embarked on careers, started businesses, purchased homes, 
and even married and had children, all in reliance' on the DACA 
program. The consequences of the rescission, respondents emphasize, 
would `radiate outward' to DACA recipients' families, including 
their 200,000 U.S.-citizen children, to the schools where DACA 
recipients study and teach, and to the employers who have invested 
time and money in training them. In addition, excluding DACA 
recipients from the lawful labor force may, they tell us, result in 
the loss of $215 billion in economic activity and an associated $60 
billion in federal tax revenue over the next ten years. Meanwhile, 
States and local governments could lose $1.25 billion in tax revenue 
each year.'' (internal citations omitted)).
---------------------------------------------------------------------------

    As the head of the Department, and the official responsible for 
``the administration and enforcement'' of the nation's immigration 
laws, the Secretary is directed to set national immigration enforcement 
policies and priorities.\40\ While other officials, such as the 
Directors of ICE and USCIS and the Commissioner of CBP, may set 
policies within their respective spheres, and individual immigration 
officers are able to make case-by-case enforcement discretion decisions 
in the course of their duties, the Secretary holds the ultimate 
responsibility and authority for establishing the Department's 
priorities and for setting the parameters for other officials' exercise 
of discretion. Unlike officers in the field, the Secretary is uniquely 
positioned to make informed judgments regarding the humanitarian, 
public safety, border security, and other implications of national 
immigration enforcement policies and priorities. The Secretary is 
ultimately accountable for

[[Page 53746]]

appropriately using the resources available to the Department as a 
whole and for taking a comprehensive view of the enforcement landscape. 
A regulation codifying a national enforcement discretion policy for the 
DACA population would reinforce the Department's focusing its resources 
on those noncitizens who pose a threat to national security, public 
safety, and border security.
---------------------------------------------------------------------------

    \40\ INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1); see also 6 U.S.C. 
202(5).
---------------------------------------------------------------------------

    Of course, there are many tools available to the Secretary to 
execute such policy choices. Historically, DHS has implemented deferred 
action policies with respect to identified groups via general 
statements of policy and rules of agency organization, procedure, or 
practice. Such policies are not legally binding on any private parties 
(and do not bind the agency from making changes), do not constitute 
legislative rules, and are not codified in the Code of Federal 
Regulations. In the case of DACA, DHS proposes to promulgate 
regulations to reflect the Secretary's enforcement priorities and 
implement the deferred action policy with respect to the DACA 
population. DHS has decided to propose this rule in consideration of 
the important reliance interests of DACA beneficiaries, their 
employers, and their communities; in response to the President's 
direction to take all actions appropriate to preserve and fortify DACA; 
and in light of the various issues and concerns raised in ongoing 
litigation challenging DACA.
    DHS's decision to proceed by rulemaking, rather than the less 
formal procedures typically associated with the creation of policy 
guidance, represents a departure from previous practice in light of 
current circumstances. DHS emphasizes that its approach here has 
important benefits, such as providing a more formal opportunity for 
public participation. DHS also recognizes that the use of less formal 
procedures, and the absence of notice-and-comment rulemaking, has been 
challenged in court, in some cases successfully. But the approach here 
should not be interpreted as suggesting that DHS itself doubts the 
legality of the 2012 DACA policy or any other past, present, or future 
deferred action policy. It is consistent with section 553 of the APA, 
and a longstanding principle, that an agency may use non-binding, non-
legislative guidance, lacking the force of law, ``to advise the public 
prospectively of the manner in which the agency proposes to exercise a 
discretionary power.'' \41\ DHS has consistently maintained, and 
continues to maintain here, that it has such discretionary power with 
respect to deferred action.\42\
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    \41\ See Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) 
(quoting Attorney General's Manual on the Administrative Procedure 
Act (1947)).
    \42\ That DHS has determined voluntarily to use notice-and-
comment procedures does not reflect any legal determination by the 
executive branch that it must do so or that it will be required to 
do so in the future. See, e.g., Hoctor v. U.S. Dep't of Agric., 82 
F.3d 165, 171-72 (7th Cir. 1996) (observing that courts should 
``attach no weight to [an agency]'s inconsistency'' in deciding 
whether to use notice-and-comment procedures for similar rules and 
that ``there is nothing in the [APA] to forbid an agency to use the 
notice and comment procedure in cases in which it is not required to 
do so''); Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 
698, 744 n.62 (D. Or. 1997) (``There are many reasons why an agency 
may voluntarily elect to utilize notice and comment rulemaking: The 
proposed rule may constitute a material amendment to the old rule, 
the agency may wish to avoid potential litigation over whether the 
new rule is legislative or interpretive, or the agency may simply 
wish to solicit public comment.''); cf. Perez v. Mort. Bankers 
Ass'n, 575 U.S. 92, 101 (2015) (``Because an agency is not required 
to use notice-and-comment procedures to issue an initial 
interpretive rule, it is also not required to use those procedures 
when it amends or repeals that interpretive rule.'').
---------------------------------------------------------------------------

    The proposed rule also would aid DHS's enforcement branches in 
identifying classes of noncitizens whose removal Congress has signaled 
should be prioritized \43\ and focus a greater portion of their limited 
time, space, and funds on these higher risk situations that pose a 
threat to public safety or national security. While a grant of deferred 
action may have additional consequences under other provisions of law 
and regulation, including State law, at its core it reflects a decision 
made by the Executive to forgo removal against an individual for a 
limited period while the individual remains a low priority. It reflects 
a policy of forbearance. It is well within the Department's authority, 
and consistent with historical practice, for DHS to create a nationwide 
policy for efficiently allocating limited enforcement resources.\44\
---------------------------------------------------------------------------

    \43\ See, e.g., INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1) 
(establishing ``expedited removal'' for certain noncitizens arriving 
in the United States); INA sec. 236(c), 8 U.S.C. 1226(c) (providing 
mandatory detention for certain criminal noncitizens); INA sec. 
236A, 8 U.S.C. 1226a (providing mandatory detention of suspected 
terrorists); see also, e.g., Public Law 114-113, 129 Stat. 2241, 
2497 (providing that ``the Secretary . . . shall prioritize the 
identification and removal of aliens convicted of a crime by the 
severity of that crime''); Public Law 113-76, 128 Stat. 5, 251 
(same); Public Law 113-6, 127 Stat. 198, 347 (same).
    \44\ See Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487 
(9th Cir. 2018) (deferred action ``arises . . . from the Executive's 
inherent authority to allocate resources and prioritize cases''), 
aff'd, 140 S. Ct. 1891 (2020).
---------------------------------------------------------------------------

A. History of Discretionary Reprieves From Removal

    Since at least 1956, DHS and the former INS have issued policies 
under which groups of individuals without lawful status may receive a 
discretionary, temporary, and nonguaranteed reprieve from removal, even 
outside the context of immigration proceedings.\45\ These policies have 
been implemented through a range of measures, including, but not 
limited to, extended voluntary departure (EVD) and deferred enforced 
departure (DED), indefinite voluntary departure, parole, and deferred 
action.\46\ From at least the early 1980s, each such measure resulted 
in not only the termination of immigration proceedings, but also the 
availability of collateral ``benefits'' such as work authorization. A 
brief history of some such policies follows.
---------------------------------------------------------------------------

    \45\ See generally Ben Harrington, An Overview of Discretionary 
Reprieves from Removal: Deferred Action, DACA, TPS, and Others, 
Congressional Research Service, No. R45158 (Apr. 10, 2018) 
(hereinafter CRS Report on Discretionary Reprieves from Removal). 
See also American Immigration Council, Executive Grants of Temporary 
Immigration Relief, 1956-Present (Oct. 2, 2014), https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-relief-1956-present (identifying 39 examples 
of temporary immigration relief); Sharon Stephan, Extended Voluntary 
Departure and Other Grants of Blanket Relief from Deportation, 
Congressional Research Service, No. 85-599 EPW (Feb. 23, 1985) 
(hereinafter CRS Report on EVD).
    \46\ See CRS Report on Discretionary Reprieves from Removal 
(cataloguing types of discretionary reprieves from removal, 
including reprieves that are generally only available in conjunction 
with the removal process, such as voluntary departure, stays of 
removal, orders of supervision, and administrative closure). See 
also generally Geoffrey Heeren, The Status of Nonstatus, 64 Am. U. 
L. Rev. 1115 (2015).
---------------------------------------------------------------------------

1. Extended Voluntary Departure and Deferred Enforced Departure
    Beginning in the Eisenhower administration, a string of executive 
actions authorized various classes of noncitizens to stay in the United 
States and work under the rubric of EVD. From 1956 to 1972, the INS 
offered EVD to certain noncitizen professionals and those with 
exceptional ability in the sciences or arts who were otherwise subject 
to deportation due to visa quotas applicable to natives of the Eastern 
Hemisphere.\47\ Through this policy, although a noncitizen's lawful 
status might have lapsed, ``[d]eportation, or even departure from the 
United States, was . . . entirely avoided.'' \48\ And beginning in 
1978, the INS offered EVD to certain former H-1 nurses whose ``lack of 
lawful immigration status [was] due only to the nurse's having changed 
employer without authority, or to his/her having failed the licensure 
examination.'' \49\ From at least 1960

[[Page 53747]]

until 1990, executive agencies granted EVD to nationals of at least 14 
countries.\50\ EVD was invoked repeatedly to allow discretionary 
reprieves from removal for groups of individuals without lawful status.
---------------------------------------------------------------------------

    \47\ See United States ex rel. Parco v. Morris, 426 F. Supp. 
976, 979-80 (E.D. Pa. 1977).
    \48\ Id. at 980.
    \49\ See, e.g., 43 FR 2776 (Jan. 19, 1978) (announcing a period 
of discretionary ``extended voluntary departure'' or ``deferred 
departure'' for certain H-1 nurses who no longer had lawful 
immigration status); 44 FR 53582 (Sept. 14, 1979) (extension of 
same).
    \50\ See Adam B. Cox and Cristina M. Rodr[iacute]guez, The 
President and Immigration Law Redux, 125 Yale L.J. 104, 122-24 
(2015) (discussing the origins and various applications of EVD); see 
also CRS Report on EVD; Lynda J. Oswald, Note, Extended Voluntary 
Departure: Limiting the Attorney General's Discretion in Immigration 
Matters, 85 Mich. L. Rev. 152, 152 n.1 (1986) (cataloguing grants of 
EVD based on nationality).
---------------------------------------------------------------------------

    The use of EVD abated following the passage of the Immigration Act 
of 1990 (IMMACT 90), which expressly authorized the Attorney General 
(whose authorities in this respect are now assigned to the Secretary), 
following consultation with the Secretary of State, to designate a 
foreign country for Temporary Protected Status (TPS) in certain 
circumstances.\51\ But even after 1990, Presidents of both parties have 
extended similar treatment to nationals of certain countries under the 
rubric of DED.\52\
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    \51\ See Public Law 101-649, sec. 302, 104 Stat. 4978, 5030-36 
(codified as amended at 8 U.S.C. 1254a). In fact, in establishing 
TPS in IMMACT 90, Congress understood that the Attorney General (now 
Secretary) had continuing authority to establish such policies on 
grounds other than the individuals' nationality, providing that TPS 
would be the exclusive authority for the Attorney General to permit 
otherwise removable aliens to remain temporarily in the United 
States ``because of their particular nationality.'' INA sec. 244(g), 
8 U.S.C. 1254a(g); see Statement by President George H.W. Bush upon 
Signing S. 358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), 1990 
U.S.C.C.A.N. 6801 (Nov. 29, 1990) (expressing concern with INA sec. 
244(g) because it would impinge on the Executive's prosecutorial 
discretion).
    \52\ See, e.g., 57 FR 28700 (June 26, 1992) (President George 
H.W. Bush directing DED for certain Salvadorans); 86 FR 6845 (Jan. 
25, 2021) (President Trump directing DED for certain Venezuelans); 
86 FR 43587 (Aug. 10, 2021) (President Biden directing DED for 
certain Hong Kong residents).
---------------------------------------------------------------------------

2. Indefinite ``Voluntary Departure'' Under the ``Family Fairness'' 
Policies
    In 1987, the INS announced a policy known as ``family fairness'' to 
allow for indefinite residence in the United States and work 
authorization \53\ for spouses and children of certain noncitizens who 
had been made eligible for legal immigration in the Immigration Reform 
and Control Act of 1986 (IRCA).\54\ In IRCA, Congress made millions of 
noncitizens eligible for temporary residency, lawful permanent 
residency, and eventually naturalization,\55\ but it did not similarly 
provide for such noncitizens' spouses and children who had arrived too 
recently or were otherwise ineligible.\56\ Notwithstanding the 
apparently intentional gap in eligibility,\57\ the INS provided for a 
discretionary reprieve from removal for many such spouses and 
children.\58\ Under the policy, the INS announced that it would 
``indefinitely defer deportation'' for (1) ineligible spouses and 
children who could show compelling or humanitarian factors; and (2) 
ineligible unmarried minor children who could show that both parents 
(or their only parent) had achieved lawful temporary resident 
status.\59\ Those individuals also could obtain work authorization.\60\ 
Ultimately such spouses and children might be able to benefit from an 
immediate relative petition filed on their behalf.
---------------------------------------------------------------------------

    \53\ The family fairness policies referred to this reprieve as 
indefinite voluntary departure or voluntary departure.
    \54\ See Alan C. Nelson, Commissioner, INS, Legalization and 
Family Fairness--An Analysis (Oct. 21, 1987) (hereinafter 1987 
Family Fairness Memorandum), reprinted in 64 No. 41 Interpreter 
Releases 1191, App. I (Oct. 26, 1987); see also Memorandum to INS 
Regional Commissioners from Gene McNary, Commissioner, INS, Re: 
Family Fairness: Guidelines for Voluntary Departure under 8 CFR 
242.5 for the Ineligible Spouses and Children of Legalized Aliens 
(Feb. 2, 1990) (hereinafter 1990 Family Fairness Memorandum).
    \55\ See 1987 Family Fairness Memorandum.
    \56\ See S. Rep. No. 132, 99th Cong., 1st Sess., at 16 (1985) 
(``It is the intent of the Committee that the families of legalized 
aliens will obtain no special petitioning rights by virtue of the 
legalization.'').
    \57\ See Paul W. Schmidt, Acting General Counsel, INS, Legal 
Considerations On The Treatment Of Family Members Who Are Not 
Eligible For Legalization (May 29, 1987) (``[IRCA] does not cover 
spouses and children of legalized aliens. . . . The legislative 
history on this issue is crystal clear.''). Two weeks prior to the 
announcement of the family fairness policy, Senator John Chafee 
proposed a legislative path to legalization for the spouses and 
children excluded from IRCA; however, the proposal was rejected. See 
Record Vote No. 311, S. Amend. 894 to S. 1394, 100th Cong. (1987), 
https://www.congress.gov/amendment/100th-congress/senate-amendment/894/actions. A narrower effort to block funding for deportations of 
such individuals was introduced soon after the 1987 Family Fairness 
Memorandum but also did not become law. See H.J. Res. 395, 100th 
Cong. Sec.  110 (as introduced Oct. 29, 1987); Act of Dec. 22, 1987, 
Public Law 100-202, 101 Stat. 1329; see also 133 Cong. Rec. 12,038-
43 (1987) (statement of Rep. Roybal).
    \58\ See 1987 Family Fairness Memorandum.
    \59\ See id.
    \60\ See Recent Developments, 64 No. 41 Interpreter Releases 
1191, App. II, at 1206 (Oct. 26, 1987).
---------------------------------------------------------------------------

    The INS expanded the family fairness policy in 1990, ``to assure 
uniformity in the granting of voluntary departure and work 
authorization for the ineligible spouses and children of legalized 
aliens,'' and ``to respond to the needs'' of legalized noncitizens and 
their family members ``in a consistent and humanitarian manner.'' \61\ 
As expanded, the policy provided indefinite voluntary departure for any 
ineligible spouse or minor child of a legalizing noncitizen who showed 
that they (1) had been residing in the country by the date of IRCA's 
1986 enactment; (2) were otherwise inadmissible; (3) had not been 
convicted of a felony or three misdemeanors; and (4) had not assisted 
in persecution.
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    \61\ See 1990 Family Fairness Memorandum. See also Record Vote 
No. 107, S. Amend. 244 to S. 358, 101st Cong. (1989), https://www.congress.gov/amendment/101st-congress/senate-amendment/244/actions; IRCA Amendments of 1989, H.R. 3374, 101st Cong. (1989), 
https://www.congress.gov/bill/101st-congress/house-bill/3374/all-actions (reflecting subcommittee hearings held as last action on the 
bill).
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    Estimates of the potentially eligible population varied, but many 
were very large.\62\ The INS Commissioner testified that 1.5 million 
people were estimated to be eligible.\63\ Congress ultimately responded 
by ratifying the family fairness program and by authorizing an even 
broader group to obtain lawful status beginning 1 year thereafter.\64\ 
Congress stated that this 1-year delay ``shall not be construed as 
reflecting a Congressional belief that the existing family fairness 
program should be modified in any way before such date.'' \65\
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    \62\ See, e.g., Recent Developments, 67 No. 8 Interpreter 
Releases 201, 206 (Feb. 26, 1990); see also, e.g., 55 FR 6058 (Feb. 
21, 1990) (anticipating requests from ``approximately one million'' 
people); J.A. 646 (internal INS memorandum estimating ``greater than 
one million'' people ``will file''); J.A. 642 (``potentially 
millions''); 67 No. 8 Interpreter Releases 206 (``no more than 
250,000''); Tim Schreiner, ``INS Reverses Policy That Split Alien 
Families,'' S.F. Chron., Feb. 3, 1990, at A15 (``more than 100,000 
people'' estimated to file); Paul Anderson, ``New Policy on Illegal 
Immigrants,'' Phila. Inquirer, Feb. 3, 1990, at A10 (it ``may run to 
a million'').
    \63\ Immigration Act of 1989: Hearings Before the Subcomm. on 
Immigration, Refugees, and International Law of the House Comm. on 
the Judiciary, 101st Cong., 2d Sess. Pt. 2, at 49, 56 (1990).
    \64\ See IMMACT 90, Public Law 101-649, sec. 301(g), 104 Stat. 
4978, 5030 (1990).
    \65\ Id.
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3. Deferred Action
    Beginning as early as 1959, INS Operations Instructions (OI) 
referred to ``nonpriority'' cases--a category that later became known 
as ``deferred action.'' \66\ In 1959, such instructions identified top 
priorities for investigative case assignments and provided that, ``[i]n 
every case involving appealing humanitarian factors, appropriate 
measures must be taken to insure that action taken by [INS] will not 
subject the law, its administration, or the Government of the United 
States to public ridicule. Form G-312 shall be used to report each such 
nonpriority

[[Page 53748]]

case.'' \67\ In 1972, the INS OI provided that
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    \66\ See AADC, 525 U.S. at 484.
    \67\ INS OI 103.1(a)(1) (Jan. 15, 1959).

[i]n every case where the district director determines that adverse 
action would be unconscionable because of the existence of appealing 
humanitarian factors, he shall recommend consideration for 
nonpriority. . . . If the recommendation is approved the alien shall 
be notified that no action will be taken by [INS] to disturb his 
immigration status, or that his departure from the United States has 
been deferred indefinitely, whichever is appropriate.\68\
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    \68\ INS OI 103.1(a)(1)(ii) (Apr. 5, 1972).

A 1975 version of the same policy called for interim or biennial 
reviews of each case in deferred action status, and further provided, 
---------------------------------------------------------------------------
inter alia, that

[w]hen determining whether a case should be recommended for deferred 
action category, consideration should include the following: (1) 
advanced or tender age; (2) many years presence in the United 
States; (3) physical or mental condition requiring care or treatment 
in the United States; (4) family situation in the United States--
effect of expulsion; (5) criminal, immoral or subversive activities 
or affiliations--recent conduct.\69\
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    \69\ INS OI 103.1(a)(1)(ii) (Dec. 31, 1975).

---------------------------------------------------------------------------
In short, from at least 1959 until the late 1990s,

deferred-action decisions were governed by internal INS guidelines 
which considered, inter alia, such factors as the likelihood of 
ultimately removing the alien, the presence of sympathetic factors 
that could adversely affect future cases or generate bad publicity 
for the INS, and whether the alien had violated a provision that had 
been given high enforcement priority.\70\
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    \70\ See AADC, 525 U.S. at 484 n.8 (citing 16 C. Gordon, S. 
Mailman, and S. Yale-Loehr, Immigration Law and Procedure Sec.  
242.1 (1998)).

    Although such internal guidelines were moved to the INS's Interim 
Enforcement Procedures in June 1997, the following year the Supreme 
Court noted that ``there is no indication that the INS has ceased 
making this sort of determination on a case-by-case basis.'' \71\ On 
the contrary, by the time of the enactment of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),\72\ ``the INS 
had been engaging in a regular practice (which had come to be known as 
`deferred action') of exercising [enforcement] discretion for 
humanitarian reasons or simply for its own convenience.'' \73\
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    \71\ Id. The INS began rescinding OI on an ongoing basis as it 
moved to a Field Manual model for policies and procedures for 
officers. See INS Field Manual Project to Eventually Replace 
Operations Instructions; 77 No. 3 Interpreter Releases 93 (Jan. 14, 
2000). The OI on deferred action were rescinded when the procedures 
were moved to the Interim Enforcement Procedures in June 1997, 
though the procedures remained substantively the same. See Interim 
Enforcement Procedures: Standard Operating Procedures for 
Enforcement Officers: Arrest, Detention, Processing and Removal 
(June 5, 1997) (accessed via USCIS historical archive).
    \72\ Public Law 104-208, 110 Stat. 3009.
    \73\ See AADC, 525 U.S. at 483-84.
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4. More Recent Deferred Action Policies
    In recent years, the INS and DHS have established a number of 
specific policies for consideration of deferred action requests by 
members of certain groups. For instance, in 1997, the INS established a 
deferred action policy for self-petitioners under the Violence Against 
Women Act of 1994 (VAWA).\74\ The INS policy required immigration 
officers who approved a VAWA self-petition to assess, ``on a case-by-
case basis, whether to place the alien in deferred action'' while the 
noncitizen waited for a visa to become available.\75\ The INS noted 
that, ``[b]y their nature, VAWA cases generally possess factors that 
warrant consideration for deferred action.'' \76\ Under this policy, 
from 1997 to 2000, no approved VAWA self-petitioner was removed from 
the country.\77\ In the Victims of Trafficking and Violence Protection 
Act of 2000 (VTVPA), Congress expanded the availability of this type of 
deferred action, providing that children who could no longer self-
petition under VAWA because they were over the age of 21 would 
nonetheless be ``eligible for deferred action and work authorization.'' 
\78\
---------------------------------------------------------------------------

    \74\ Public Law 103-322, tit. IV, 108 Stat. 1796.
    \75\ See Memorandum to INS Regional Directors, et al., from Paul 
W. Virtue, Acting Executive Associate Commissioner, INS, Re: 
Supplemental Guidance on Battered Alien Self-Petitioning Process and 
Related Issues at 3 (May 6, 1997).
    \76\ Id.
    \77\ See Battered Women Immigrant Protection Act: Hearings on 
H.R. 3083 Before the Subcomm. on Immigration and Claims of the House 
Comm. on the Judiciary, 106th Cong., at 43 (July 20, 2000).
    \78\ See Public Law 106-386, sec. 1503(d), 114 Stat. 1464, 1521-
22.
---------------------------------------------------------------------------

    In 2001, the INS instituted a similar deferred action policy for 
applicants for nonimmigrant status made available under the VTVPA's new 
nonimmigrant classifications for certain victims of human trafficking 
and their family members (T visas) and certain victims of other crimes 
and their family members (U visas).\79\ The INS issued a memorandum 
directing immigration officers to locate ``possible victims in the 
above categories,'' and to use ``[e]xisting authority and mechanisms 
such as parole, deferred action, and stays of removal'' to prevent 
those victims' removal ``until they have had the opportunity to avail 
themselves of the provisions of the VTVPA.'' \80\ The INS later 
instructed officers to consider deferred action for ``all [T visa] 
applicants whose applications have been determined to be bona fide,'' 
\81\ as well as for all U visa applicants ``determined to have 
submitted prima facie evidence of [their] eligibility.'' \82\ In 2002 
and 2007, INS and DHS promulgated regulations implementing similar 
policies.\83\
---------------------------------------------------------------------------

    \79\ See 8 U.S.C. 1101(a)(15)(T)(i) and (U)(i).
    \80\ See Memorandum for Michael A. Pearson, INS Executive 
Associate Commissioner, from Michael D. Cronin, Acting Executive 
Associate Commissioner, INS, Re: Victims of Trafficking and Violence 
Protection Act of 2000 (VTVPA) Policy Memorandum #2--``T'' and ``U'' 
Nonimmigrant Visas at 2 (Aug. 30, 2001).
    \81\ Memorandum for Johnny N. Williams, INS Executive Associate 
Commissioner, from Stuart Anderson, INS Executive Associate 
Commissioner, Re: Deferred Action for Aliens with Bona Fide 
Applications for T Nonimmigrant Status at 1 (May 8, 2002) 
(hereinafter Williams Memorandum).
    \82\ See Memorandum for the Director, Vermont Service Center, 
INS, from USCIS Associate Director of Operations William R. Yates, 
Re: Centralization of Interim Relief for U Nonimmigrant Status 
Applicants (Oct. 8, 2003).
    \83\ See 67 FR 4784 (Jan. 31, 2002) (providing for deferred 
action for certain T visa applicants) (codified as amended at 8 CFR 
214.11(j)); 72 FR 53014 (Sept. 17, 2007) (same for certain U visa 
applicants) (codified as amended at 8 CFR 214.14(d)).
---------------------------------------------------------------------------

    These policies, as well, were later ratified by Congress. In 2008, 
when Congress authorized DHS to grant an administrative stay of removal 
to a T or U visa applicant whose application sets forth a prima facie 
case for approval, Congress ratified the existing deferred action 
policies by clarifying that the denial of a request for an 
administrative stay of removal under this new authority would ``not 
preclude the alien from applying for a stay of removal, deferred 
action, or a continuance or abeyance of removal proceedings under any 
other provision of the immigration laws of the United States.'' \84\ 
And Congress also required DHS to submit a report to Congress covering, 
inter alia, ``[i]nformation on the time in which it takes to adjudicate 
victim-based immigration applications, including the issuance of visas, 
work authorization and deferred action in a timely manner consistent 
with the safe and competent processing of such applications, and steps 
taken to improve in this area.'' \85\
---------------------------------------------------------------------------

    \84\ See William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, Public Law 110-457, sec. 204, 122 Stat. 
5044, 5060 (codified as amended at 8 U.S.C. 1227(d)).
    \85\ See id. at sec. 238(b)(7), 122 Stat. at 5085.
---------------------------------------------------------------------------

    In 2005, following Hurricane Katrina, DHS issued another deferred 
action policy applicable to foreign students who lost their lawful 
status as F-1 nonimmigrant students by virtue of failing to pursue a 
``full course of study'' following the disaster.\86\ Eligible F-1

[[Page 53749]]

students were allowed to request deferred action individually by 
letter, which was required to include a written affidavit or unsworn 
declaration confirming that the applicant met eligibility requirements.
---------------------------------------------------------------------------

    \86\ USCIS, Interim Relief for Certain Foreign Academic Students 
Adversely Affected by Hurricane Katrina: Frequently Asked Questions 
(FAQ) at 1 (Nov. 25, 2005) (quoting 8 CFR 214.2(f)(6)).
---------------------------------------------------------------------------

    In 2009, DHS implemented a deferred action policy for (1) surviving 
spouses of U.S. citizens whose U.S. citizen spouse died before the 
second anniversary of the marriage and who are unmarried and residing 
in the United States; and (2) their qualifying children who are 
residing in the United States.\87\ USCIS explained that ``no avenue of 
immigration relief exists for the surviving spouse of a deceased U.S. 
citizen if the surviving spouse and the U.S. citizen were married less 
than 2 years at the time of the citizen's death'' and USCIS had not yet 
adjudicated an immigrant petition on the spouse's behalf.\88\ Congress 
subsequently eliminated the requirement that a noncitizen be married to 
a U.S. citizen ``for at least 2 years at the time of the citizen's 
death'' to retain their eligibility for lawful immigration status.\89\ 
USCIS later withdrew its guidance and treated all pending applications 
for deferred action under this policy as widow(er)s' petitions.\90\
---------------------------------------------------------------------------

    \87\ Memorandum to USCIS Field Leadership from Donald Neufeld, 
Acting Associate Director, USCIS Office of Domestic Operations, Re: 
Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and 
Their Children at 4 (June 15, 2009).
    \88\ Id. at 1.
    \89\ See Department of Homeland Security Appropriations Act, 
2010, Public Law 111-83, sec. 568(c), 123 Stat. 2142, 2186-87.
    \90\ See Memorandum to USCIS Executive Leadership from Donald 
Neufeld, Acting Associate Director, USCIS Office of Domestic 
Operations, Re: Additional Guidance Regarding Surviving Spouses of 
Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec. 
2, 2009).
---------------------------------------------------------------------------

    In sum, for more than 60 years, executive agencies have issued 
policies under which deserving groups of individuals without lawful 
status may receive a discretionary, temporary, and nonguaranteed 
reprieve from removal. Many of these policies, including all the 
deferred action policies, resulted in collateral ``benefits,'' such as 
eligibility to apply for work authorization. Many of these policies, 
including those involving the use of deferred action, also were 
subsequently ratified by Congress. The policy in this proposed rule is 
another such act of enforcement discretion and is similarly within the 
Executive's authority to implement.\91\
---------------------------------------------------------------------------

    \91\ See Section II.A above for a description of DACA's 
creation.
---------------------------------------------------------------------------

B. Litigation History

    When DACA was first implemented in 2012, 10 ICE officers and the 
State of Mississippi challenged both the Napolitano Memorandum and 
then-ICE Director John Morton's previously issued memorandum on 
prosecutorial discretion, ``Exercising Prosecutorial Discretion 
Consistent with the Civil Immigration Enforcement Priorities of the 
Agency for the Apprehension, Detention, and Removal of Aliens'' (Morton 
Memorandum).\92\ The plaintiffs in those cases were found to lack 
standing.\93\
---------------------------------------------------------------------------

    \92\ See Crane v. Napolitano, 920 F. Supp. 2d 724, (N.D. Tex. 
2013).
    \93\ See Crane v. Johnson, 783 F.3d 244, 255 (5th Cir. 2015).
---------------------------------------------------------------------------

    In 2014, DHS sought to implement the policy Deferred Action for 
Parents of Americans and Lawful Permanent Residents (DAPA) and to 
expand DACA to a larger population by removing the age cap for filing, 
providing grants of deferred action for a longer period of time, and 
making certain other adjustments (Expanded DACA).\94\ The State of 
Texas and 25 other States brought an action for injunctive relief to 
prevent implementation of DAPA and Expanded DACA, alleging that they 
violated the APA, the Take Care Clause of the Constitution, and the 
INA.\95\ On February 16, 2015, the U.S. District Court for the Southern 
District of Texas entered a nationwide preliminary injunction barring 
implementation of the policies in the 2014 DAPA Memorandum, which 
included both DAPA and Expanded DACA. On November 9, 2015, the Fifth 
Circuit affirmed the preliminary injunction, finding that the plaintiff 
States were substantially likely to establish that (1) DAPA and 
Expanded DACA required notice-and-comment rulemaking; and (2) DAPA and 
Expanded DACA violated the INA.\96\ On June 23, 2016, an equally 
divided Supreme Court affirmed, leaving the nationwide injunction in 
place.\97\ In the summer of 2017, Texas and the other plaintiff States 
voluntarily dismissed Texas I.
---------------------------------------------------------------------------

    \94\ Memorandum from Jeh Johnson, Secretary, DHS, to Le[oacute]n 
Rodriguez, Director, USCIS, et al., Exercising Prosecutorial 
Discretion with Respect to Individuals Who Came to the United States 
as Children and with Respect to Certain Individuals Who are the 
Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) 
(hereinafter 2014 DAPA Memorandum). The policy memorandum was 
rescinded on June 15, 2017. Memorandum from John Kelly, Secretary, 
DHS, to Kevin McAleenan, Acting Commissioner, CBP, et. al., 
Rescission of November 20, 2014 Memorandum Providing for Deferred 
Action for Parents of Americans and Lawful Permanent Residents 
(DAPA) (June 15, 2017).
    \95\ See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 
2015) (Texas I).
    \96\ Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (Texas 
I). The Fifth Circuit included the directives of Expanded DACA as 
part of DAPA for purposes of its decision. See id. at 147 n.11.
    \97\ United States v. Texas, 136 S. Ct. 2271 (2016) (per 
curiam).
---------------------------------------------------------------------------

    On September 5, 2017, then-Acting Secretary Elaine Duke issued a 
memorandum rescinding and beginning a wind-down of the 2012 DACA 
policy, citing the Supreme Court and Fifth Circuit decisions in Texas I 
and a letter from then-Attorney General Jefferson Sessions recommending 
rescission and an orderly wind-down of the 2012 DACA policy as it was 
likely to receive a similar decision in ``imminent litigation.'' \98\ 
In response to the Duke Memorandum, the Regents of the University of 
California, several States, a county, city, union, and individual DACA 
recipients brought suit in the U.S. District Court for the Northern 
District of California challenging the rescission as arbitrary and 
capricious under the APA, claiming that the rescission of DACA required 
notice and comment, violated the Regulatory Flexibility Act, and denied 
plaintiffs equal protection and due process.\99\ Other groups of 
plaintiffs filed similar challenges, or amended existing lawsuits, in 
the U.S. District Courts for the Eastern District of New York,\100\ the 
District of Columbia,\101\ the Southern District of Florida,\102\ and 
the District of Maryland.\103\
---------------------------------------------------------------------------

    \98\ Memorandum on Rescission of Deferred Action for Childhood 
Arrivals (DACA) from Elaine Duke, Acting Secretary, DHS (Sept. 5, 
2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca (hereinafter Duke Memorandum); see also Letter from Attorney 
General Sessions to Acting Secretary Duke on the Rescission of DACA 
(Sept. 4, 2017), https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf.
    \99\ Regents of the Univ. of Cal. v. DHS, No. 17-cv-5211 (N.D. 
Cal. 2017) (Regents v. DHS).
    \100\ See Batalla Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y.). 
Mr. Batalla Vidal's original complaint challenged DHS's revocation 
of the 3-year EAD issued under Expanded DACA and the Government's 
application of the Texas I preliminary injunction to New York 
residents such as himself. Compl., Vidal v. Baran, No. 16-cv-4756 
(E.D.N.Y.) (Aug. 25, 2016).
    \101\ See NAACP v. Trump, No. 17-cv-1907 (D.D.C.).
    \102\ See Diaz v. DHS, No. 17-cv-24555 (S.D. Fla.).
    \103\ See Casa de Maryland v. DHS, No. 17-cv-2942 (D. Md.).
---------------------------------------------------------------------------

    In two separate orders in January 2018, in Regents v. DHS, the U.S. 
District Court for the Northern District of California denied the 
Government's motion to dismiss, and, finding plaintiffs had a 
likelihood of success in proving the rescission was arbitrary and 
capricious, entered a preliminary nationwide injunction requiring DHS 
to maintain the DACA policy largely as it

[[Page 53750]]

was in effect prior to rescission.\104\ The injunction did not require 
the Government to accept requests from individuals who had never 
received DACA before, nor to provide advance parole to DACA recipients. 
In February 2018, in Batalla Vidal v. Nielsen, the U.S. District Court 
for the Eastern District of New York also entered a nationwide 
preliminary injunction on the basis that DHS's rescission of the DACA 
policy was likely arbitrary and capricious.\105\
---------------------------------------------------------------------------

    \104\ The Northern District of California previously 
consolidated the following cases: California v. DHS, No. 17-cv-5235 
(N.D. Cal.); Garcia v. United States, No. 17-cv-5380 (N.D. Cal.); 
City of San Jose v. Trump, No. 17-cv-5329 (N.D. Cal.); Regents v. 
DHS; and County of Santa Clara v. Trump, No. 17-cv-5813 (N.D. Cal.).
    \105\ See Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 
(E.D.N.Y. 2018); see also Batalla Vidal v. Trump, No. 18-485 (2d 
Cir.) (consolidating appeals from New York v. Trump, No. 17-cv-5228 
(E.D.N.Y.) and Batalla Vidal v. Baran, No. 16-4756 (E.D.N.Y.)).
---------------------------------------------------------------------------

    In April 2018, in NAACP v. Trump, the U.S. District Court for the 
District of Columbia granted plaintiffs partial summary judgment on one 
of their APA claims, finding the Government failed to explain the 
rescission adequately. The court vacated the Duke Memorandum, but it 
stayed its order for 90 days so that DHS could provide additional 
explanation of its action.\106\ Then-Secretary Kirstjen Nielsen issued 
a second memorandum (Nielsen Memorandum) further explaining DHS's 
decision to rescind DACA.\107\ Upon consideration of the Nielsen 
Memorandum, the NAACP v. Trump court declined to reconsider its order 
vacating the Duke Memorandum, again finding the rescission arbitrary 
and capricious under the APA.\108\
---------------------------------------------------------------------------

    \106\ NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
    \107\ Memorandum from Kirstjen M. Nielsen, Secretary, DHS (June 
22, 2018).
    \108\ NAACP v. Trump, 315 F. Supp. 3d 457, 474 (D.D.C. 2018).
---------------------------------------------------------------------------

    The Government appealed the orders to the U.S. Courts of Appeals 
for the Ninth, Second, and D.C. Circuits. While awaiting those courts' 
decisions, the Government petitioned the Supreme Court for a writ of 
certiorari before judgment in each case,\109\ asking the Court to grant 
similar petitions and consolidate the rescission cases.\110\ Before the 
Supreme Court acted on the Government's petitions, the Ninth Circuit 
affirmed the preliminary injunction in Regents, and the Supreme Court 
granted certiorari in that case and certiorari before judgment in the 
Second Circuit and D.C. Circuit cases. Over the course of the 
litigation, DHS continued to adjudicate DACA requests from previous 
DACA holders as required by the nationwide injunctions.
---------------------------------------------------------------------------

    \109\ The Ninth Circuit later affirmed the district court's 
preliminary injunction, 908 F.3d 476 (9th Cir. 2018), and the 
Government converted its petition to a petition for a writ of 
certiorari. DHS v. Regents of the Univ. of Cal., No. 18-587 (Supreme 
Court) (petition for writ of certiorari before judgment filed Nov. 
5, 2018; request to convert to petition for writ of certiorari filed 
Nov. 19, 2018).
    \110\ McAleenan v. Vidal, No. 18-589 (Supreme Court) (petition 
for writ of certiorari before judgment filed Nov. 5, 2018); Batalla 
Vidal v. Trump, No. 18-485 (2d Cir.) (consolidating appeals from New 
York v. Trump, 17-cv-5228 (E.D.N.Y.) and Batalla Vidal v. Baran, No. 
16-04756 (E.D.N.Y.)) (appeal filed Feb. 20, 2018); Trump v. NAACP, 
No. 18-588 (Supreme Court) (petition for writ of certiorari before 
judgment filed Nov. 5, 2018); Trustees of Princeton Univ. v. United 
States, No. 18-5245 (D.C. Cir.) (appeal filed Aug. 13, 2018) 
(Trustees of Princeton Univ. v. United States, No. 17-cv-2325 
(D.D.C.) consolidated with NAACP v. Trump, No. 17-cv-1907 (D.D.C.)). 
Although the district court granted the Government's motion for 
summary judgment in part in Casa de Maryland, the Fourth Circuit 
reversed, vacating the Duke Memorandum, though it stayed its order, 
and the Supreme Court denied cert. DHS v. Casa De Maryland, 18-1469 
(petition for writ of certiorari); Casa de Maryland v. DHS, 18-1521 
(4th Cir. May 17, 2019) (appeal and cross-appeal filed May 8, 2018) 
(Casa de Maryland v. DHS, No. 17-cv-2942 (D. Md.)).
---------------------------------------------------------------------------

    The Supreme Court heard the consolidated rescission cases to 
determine the issues of (1) whether the rescission was reviewable; (2) 
whether it was arbitrary and capricious under the APA; and (3) whether 
it violated the equal protection principles of the Fifth Amendment's 
Due Process Clause.\111\ On June 18, 2020, the Court issued its 
decision and found the policy's rescission reviewable under the 
APA.\112\ The Court found that the decision to rescind DACA was 
arbitrary and capricious under the APA because then-Acting Secretary 
Duke had not adequately considered alternatives to rescission, nor had 
she considered the reliance interests of DACA recipients. The Court 
held that plaintiffs failed to state a cognizable equal protection 
claim. And the Court declined to consider the Nielsen Memorandum. 
Ultimately, the Court remanded the matter to DHS ``to consider the 
problem anew.'' \113\ In a letter to then-Acting Secretary Chad Wolf, 
then-Attorney General William Barr withdrew the September 4, 2017 
Sessions letter, in order to ``facilitate that consideration.'' \114\
---------------------------------------------------------------------------

    \111\ Regents, 140 S. Ct. 1891 (2020).
    \112\ Id. at 1907, 1910.
    \113\ Id. at 1916.
    \114\ Attorney General William P. Barr's letter to Acting 
Secretary Chad F. Wolf on DACA (June 30, 2020), https://www.dhs.gov/sites/default/files/publications/20_0630_doj_aj-barr-letter-as-wolf-daca.pdf.
---------------------------------------------------------------------------

    Subsequently, then-Acting Secretary Chad Wolf issued a memorandum 
limiting grants of DACA to those individuals who had previously held 
DACA and reducing the grant from 2- to 1-year increments, while DHS 
considered the future of the policy.\115\ The Wolf Memorandum also 
required rejection of all pending and future advance parole 
applications from DACA recipients and a refund of the associated fees, 
absent ``exceptional circumstances.'' \116\ The plaintiffs in Batalla 
Vidal v. Nielsen and New York v. Trump amended their complaints to 
challenge the Wolf Memorandum.\117\ The U.S. District Court for the 
Eastern District of New York vacated the Wolf Memorandum after finding 
that Mr. Wolf had not been lawfully serving as the Acting Secretary 
under the Homeland Security Act at the time of the memorandum's 
issuance.\118\ The court ordered DHS to post public notice on DHS and 
USCIS websites that it was accepting initial DACA requests and 
applications for advance parole documents under the terms in place 
prior to the September 5, 2017 rescission, as well as to notify and 
provide a remedy to those applicants affected by processing under the 
now-vacated Wolf Memorandum.\119\ USCIS then returned to operating DACA 
in accordance with the Napolitano Memorandum, as a result of the 
Batalla Vidal court's order.\120\
---------------------------------------------------------------------------

    \115\ See Reconsideration of the June 15, 2012 Memorandum 
Entitled ``Exercising Prosecutorial Discretion with Respect to 
Individuals Who Came to the United States as Children,'' Memorandum 
from Chad F. Wolf, Acting Secretary, to heads of immigration 
components of DHS, dated July 28, 2020, at p. 7 (hereinafter Wolf 
Memorandum).
    \116\ Id. at p. 8.
    \117\ Plaintiffs in the previously consolidated cases in Regents 
v. DHS likewise filed amended complaints in the Northern District of 
California, challenging the Wolf Memorandum and the subsequent 
implementing guidance (Joseph Edlow, Deputy Director of Policy, 
USCIS, to Associate Directors and Program Office Chiefs, 
Implementing Acting Secretary Chad Wolf's July 28, 2020 Memorandum, 
``Reconsideration of the June 15, 2012 Memorandum `Exercising 
Prosecutorial Discretion with Respect to Individuals Who Came to the 
United States as Children' '' (Aug. 21, 2020)) on the basis that the 
memoranda were ultra vires and violated the APA, and also 
challenging then-Acting Secretary Wolf's appointment. See, e.g., 
Pls.' First Am. Compl. For Declaratory and Injunctive Relief, 
Regents v. DHS, No. 17-cv-5211, 2020 WL 8270391 (N.D. Cal. Nov. 2, 
2020). The parties stipulated to stay proceedings pending DHS's 
actions pursuant to the Biden Memorandum.
    \118\ Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 129-33 
(E.D.N.Y. 2020).
    \119\ See Batalla Vidal v. Wolf, No. 16-cv-4756, 2020 WL 7121849 
(E.D.N.Y. Dec. 4, 2020).
    \120\ DHS expects that the proposed rule would supersede both 
the Napolitano Memorandum and, to the extent necessary, the vacated 
Wolf Memorandum.
---------------------------------------------------------------------------

    Meanwhile, in May 2018 and prior to the Supreme Court's decision in 
Regents, Texas and nine other States filed suit in the U.S. District 
Court for

[[Page 53751]]

the Southern District of Texas, challenging the legality of the 
Napolitano Memorandum \121\ (which, despite the rescission, remained in 
place due to numerous court orders \122\). As the States had waited 6 
years to file suit, the court declined to enter a preliminary 
injunction against DACA ``due to their delay.'' \123\ The court 
explained that the plaintiff States could not show irreparable harm 
from continuation of the policy during the litigation.\124\ But the 
court found that the States had a likelihood of success on the merits 
on their substantive and procedural APA claims.\125\ After discovery, 
the court stayed the case awaiting the then-forthcoming decision in DHS 
v. Regents.
---------------------------------------------------------------------------

    \121\ Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 
2018) (Texas II denial of motion for preliminary injunction).
    \122\ See, e.g., NAACP v. Trump, 315 F. Supp. 3d 457, 474 
(D.D.C. 2018).
    \123\ See Texas II denial of motion for preliminary injunction 
at 740.
    \124\ Id.
    \125\ Id. at 736.
---------------------------------------------------------------------------

    Following the Supreme Court's decision in Regents, and after 
additional discovery, the parties in Texas II filed cross-motions for 
summary judgment. On July 16, 2021, the court in Texas II issued its 
memorandum and order on the motions for summary judgment, holding that 
the Napolitano Memorandum is contrary to the APA's rulemaking 
requirements and the INA, and vacating the Napolitano Memorandum.\126\ 
The court remanded the Napolitano Memorandum to DHS for further 
consideration. The court further issued a permanent injunction 
prohibiting DHS's continued administration and reimplementation of DACA 
without compliance with the APA, but temporarily stayed the vacatur and 
permanent injunction as to most individuals granted DACA on or before 
July 16, 2021, including with respect to renewal requests. The Texas II 
court also held that while DHS may continue to accept both DACA initial 
and renewal filings, DHS is prohibited from granting initial DACA 
requests and accompanying requests for employment authorization.
---------------------------------------------------------------------------

    \126\ Texas II July 16, 2021 memorandum and order.
---------------------------------------------------------------------------

    Currently, termination of an individual's grant of deferred action 
under DACA must adhere to the requirements of the nationwide 
preliminary injunction issued by the U.S. District Court for the 
Central District of California in Inland Empire-Immigrant Youth 
Collective v. Nielsen.\127\ The Inland Empire court certified a limited 
class of DACA recipients whose DACA grants had been or would be 
terminated without notice under particular circumstances, and it 
required USCIS to reinstate their deferred action under DACA and 
provide advance notice and an opportunity to respond prior to 
terminating a class member's grant of DACA. In accordance with the 
preliminary injunction and modified class definition and implementation 
procedures, USCIS is required to issue a notice of intent to terminate 
(NOIT) if it decides to terminate an individual's DACA grant, unless 
the individual (1) has a criminal conviction that is disqualifying for 
DACA; (2) has a charge for a crime that falls within the egregious 
public safety (EPS) grounds referenced in the USCIS 2011 NTA policy 
memorandum; \128\ (3) has a pending charge for certain terrorism and 
security crimes described in 8 U.S.C. 1182(a)(3)(B)(iii) and (iv) or 8 
U.S.C. 1227(a)(4)(A)(i); (4) departed the United States without advance 
parole; (5) was physically removed from the United States pursuant to 
an order of removal, voluntary departure order, or voluntary return 
agreement; or (6) maintains a nonimmigrant or immigrant status. As the 
Inland Empire class does not include these categories of DACA 
recipients, a NOIT is not required to terminate DACA. DHS is 
preliminarily enjoined from terminating a grant of DACA based solely on 
the issuance of an NTA that charges the individual as overstaying an 
authorized period of admission or being present without inspection and 
admission. DHS appealed the preliminary injunction to the U.S. Court of 
Appeals for the Ninth Circuit, which heard oral arguments on the appeal 
on June 13, 2019. The Ninth Circuit placed the case in abeyance on 
April 7, 2021, pending the present rulemaking.\129\
---------------------------------------------------------------------------

    \127\ Order Granting Preliminary Injunction and Class 
Certification, Inland Empire-Immigrant Youth Collective v. Nielsen, 
17-cv-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018), modified by 
Modified Class Definition and Implementation Procedures--Corrected, 
Inland Empire-Immigrant Youth Collective v. Nielsen, 17-cv-2048 
(C.D. Cal. Mar. 20, 2018).
    \128\ For an individual with an EPS charge for a crime of 
violence, as set forth in section IV(A)(1)(d) of the USCIS 2011 NTA 
policy memorandum, the minimum sentence for that charge must be at 
least 1 year of imprisonment before the individual will be deemed 
excluded from the class definition in Inland Empire. See id., 
Modified Class Definition and Implementation Procedures--Corrected, 
at pp. 2-3.
    \129\ Order Holding Appeal in Abeyance, Inland Empire-Immigrant 
Youth Collective v. Mayorkas, 18-55564 (9th Cir. Apr. 7, 2021).
---------------------------------------------------------------------------

C. Forbearance From Enforcement Action

    In every area of law enforcement--both civil and criminal--
executive agencies exercise enforcement discretion.\130\ When, as is 
the norm, legislatures provide law enforcement agencies with only 
enough resources to arrest, detain, or prosecute a fraction of those 
who are suspected of violating the law, these agencies must establish 
priorities. DHS and its predecessor agencies have long exercised 
enforcement discretion, prioritizing national security, border 
security, and public safety mandates over civil infractions that do not 
represent a similar threat to the United States and its citizens.\131\ 
Given DHS's limited resources to pursue immigration enforcement and the 
approximately 11 million noncitizens estimated to reside in the United 
States without legal status,\132\ the use of discretion and 
prioritization is a necessary element of fulfilling the DHS mission.
---------------------------------------------------------------------------

    \130\ See Heckler v. Chaney, 470 U.S. 821, 831 (1985).
    \131\ While the priorities have shifted between administrations, 
DHS and its components have issued enforcement priority and 
prosecutorial discretion policy memoranda since at least 1976, 
including in 2017 and 2021. See, e.g., Sam Bernsen, General Counsel, 
INS, Legal Opinion Regarding [Immigration and Naturalization] 
Service Exercise of Prosecutorial Discretion (July 15, 1976); John 
Kelly, Secretary, DHS, Enforcement of the Immigration Laws to Serve 
the National Interest (Feb. 20, 2017); Memorandum from Acting 
Secretary David Pekoske to Senior Official Performing the Duties of 
the CBP Commissioner, et al., Review of and Interim Revision to 
Civil Immigration Enforcement and Removal Policies and Priorities 
(Jan. 20, 2021) (hereinafter Pekoske Memorandum); Acting ICE 
Director Tae D. Johnson, Interim Guidance: Civil Immigration 
Enforcement and Removal Priorities (Feb. 18, 2021). On September 15, 
2021, the U.S. Court of Appeals for the Fifth Circuit partially 
stayed a preliminary injunction issued by the U.S. District Court 
for the Southern District of Texas with respect to the latter two 
policies. See State of Texas v. United States, No. 21-40618 (5th 
Cir. Sept. 15, 2021).
    \132\ See DHS, Office of Immigration Statistics (OIS), Estimates 
of the Unauthorized Immigrant Population Residing in the United 
States: January 2015-January 2018 (Jan. 2021), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf 
(hereinafter OIS Report) (``DHS estimates that 11.4 million 
unauthorized immigrants were living in the United States on January 
1, 2018, roughly unchanged from 11.4 million on January 1, 2015''); 
Randy Capps, et al., Unauthorized Immigrants in the United States: 
Stable Numbers, Changing Origins, Migration Policy Institute (2020), 
https://www.migrationpolicy.org/sites/default/files/publications/mpi-unauthorized-immigrants-stablenumbers-changingorigins_final.pdf 
(hereinafter Capps (2020)) (``As of 2018 . . . there were 11 million 
unauthorized immigrants in the country, down slightly from 12.3 
million in 2007.'').
---------------------------------------------------------------------------

    In Fiscal Year (FY) 2016-FY 2020, DHS resources appropriated by 
Congress allowed ICE to conduct an

[[Page 53752]]

average of 235,120 removals of noncitizens per fiscal year, a small 
proportion of the roughly 11 million undocumented noncitizens present 
in the United States.\133\ Because of this mismatch between available 
resources and the number of potential enforcement targets, DHS must 
prioritize those that pose the greatest risk to public safety, national 
security, and border security. For instance, in FY 2020, 92 percent of 
the noncitizens that ICE removed after arrest by ICE Enforcement and 
Removal Operations (as opposed to those arrested by CBP at or near the 
border) had criminal convictions or pending criminal charges.\134\ By 
contrast, USCIS data released in 2019 on arrests of DACA recipients 
reflect that just 10 percent of DACA recipients had ever been so much 
as arrested or apprehended for a criminal or immigration-related civil 
offense. Of those arrests, the most common offenses were non-DUI-
related driving offenses and immigration-related civil or criminal 
offenses.\135\ This suggests that even in the absence of the DACA 
policy, the vast majority of DACA recipients would not be enforcement 
targets and likely would remain in the country without becoming the 
subject of enforcement action.
---------------------------------------------------------------------------

    \133\ ICE, Fiscal Year 2020 Enforcement and Removal Operations 
Report 4 (2020); ICE, Fiscal Year 2019 Enforcement and Removal 
Operations Report 19 (2019); ICE, Fiscal Year 2018 Enforcement and 
Removal Operations Report 10 (2018); ICE, Fiscal Year 2017 
Enforcement and Removal Operations Report 12 (2017); ICE, Fiscal 
Year 2016 Enforcement and Removal Operations Report 2 (2016).
    \134\ See ICE Annual Report: Fiscal Year 2020, https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf. ICE's interior enforcement operations are most 
likely to encounter the DACA-eligible population because DACA 
recipients must have been continuously physically present in the 
United States since June 15, 2012, and, therefore, generally are not 
encountered by CBP's border security actions.
    \135\ See USCIS, DACA Requestors with an IDENT Response (Nov. 
2019), https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf.
---------------------------------------------------------------------------

    ICE is currently further focusing resources on the identification 
of those individuals with serious criminal convictions and those 
individuals who pose a threat to national security, border security, 
and public safety.\136\ DHS's focus on high-priority cases generally, 
as well as the DACA policy in particular, provides additional 
reassurance to people who present low or no risk to the United States, 
their families, and their communities. (This, in turn, has larger 
societal benefits, as discussed in Section V.A.4.b.(6) and elsewhere in 
this proposed rule.)
---------------------------------------------------------------------------

    \136\ See Acting ICE Director Tae D. Johnson, Interim Guidance: 
Civil Immigration Enforcement and Removal Priorities (Feb. 18, 
2021). As noted above, on September 15, 2021, the U.S. Court of 
Appeals for the Fifth Circuit partially stayed a preliminary 
injunction issued by the U.S. District Court for the Southern 
District of Texas with respect to this policy. See State of Texas v. 
United States, No. 21-40618 (5th Cir. Sept. 15, 2021).
---------------------------------------------------------------------------

    Adopting the proposed regulatory provisions would fortify DHS's 
prioritized approach to immigration and border enforcement by allowing 
DHS to continue to realize the efficiency benefits of the DACA policy. 
USCIS' determination that an individual meets the DACA guidelines and 
merits a favorable exercise of discretion assists law enforcement 
activities in several areas by streamlining the review required when 
officers encounter a DACA recipient. For example, when a CBP law 
enforcement officer encounters a DACA recipient in the course of their 
activities, they can see that USCIS confirmed that the noncitizen did 
not recently cross the border and had no significant criminal history 
at the time of the most recent DACA adjudication. Rather than 
conducting a full review of the DACA recipient's immigration and 
criminal history, in some circumstances, such as at the primary 
inspection booth at a checkpoint, the officer may be able to make a 
determination without necessitating further investigation (such as 
secondary inspection)--an effort that could involve multiple officers, 
with time costs ranging from minutes to hours.\137\ Additionally, while 
officers must exercise their judgment based on the facts of each 
individual case, the prior vetting of DACA recipients provides a 
baseline that can streamline an enforcement officer's review of whether 
a DACA recipient is otherwise an enforcement priority.
---------------------------------------------------------------------------

    \137\ In the U.S. Border Patrol (USBP) context, subject-matter 
experts estimate that potential time savings could range from 30 
minutes to 2 hours, depending on the circumstances of the encounter 
and available staff and resources. Time savings would accrue to the 
agent in the field as well as radio operators who work to confirm 
identity. Specific data on this point are not available because USBP 
does not separately collect data on this type of encounter.
---------------------------------------------------------------------------

    Similarly, when ICE encounters a DACA recipient in the course of 
operations, ICE may review that person's history to ascertain if a 
disqualifying conviction has been rendered against them since the 
granting or renewal of DACA and proceed with an appropriate law 
enforcement resolution in each case. As appropriate, a law enforcement 
action, such as an arrest or immigration detainer being issued, may be 
avoided if someone is a DACA recipient or eligible individual and has 
no disqualifying convictions subsequent to the granting or renewal of 
DACA and continues to merit a favorable exercise of prosecutorial 
discretion.
    In either scenario, DACA helps save time and resources, which then 
could be spent on priority matters. At the same time, the DACA 
recipient could avoid time in DHS custody, resulting in lower costs for 
the DACA recipients and greater resource availability for DHS.
    Likewise, ICE relies on the fact that a noncitizen has received 
DACA in determining whether to place the noncitizen into removal 
proceedings or, if the noncitizen is already in removal proceedings, in 
determining whether to agree to continue, administratively close, or 
dismiss the removal proceedings without prejudice.\138\ Depending on 
the surrounding circumstances, such decisions could allow priority 
cases to move through the overloaded immigration courts more quickly, 
reduce resource burdens on ICE attorneys and the immigration courts, 
provide more immediate respite to those who present low or no risk to 
the country, or avoid costs associated with detaining and ultimately 
removing a noncitizen.
---------------------------------------------------------------------------

    \138\ DHS cannot quantify the frequency with which ICE makes 
such decisions, because ICE does not track enforcement discretion 
decisions made based on DACA. Source: Enforcement and Removal 
Operations; Office of the Principal Legal Advisor. In addition, such 
decisions also can be affected by other policies (e.g., overall 
enforcement priorities), such that in some cases, the decision to 
forbear from enforcement action could be attributed to either DACA 
or those other policies. But even when DHS is operating under 
enforcement priorities that generally would produce the same 
decision to forbear from enforcement action, ICE benefits from being 
able to rely on the fact that USCIS already has vetted the 
noncitizen via the DACA framework.
---------------------------------------------------------------------------

    As was the case when the DACA policy was first established in 2012, 
DHS recognizes that it is unable now, or in the foreseeable future, to 
take enforcement action against every noncitizen who resides in the 
United States without legal status. Given this reality, it is necessary 
for DHS to focus its resources and efforts on higher priority cases, 
such as those individuals who present a threat to national or border 
security. DHS policy long has reflected a determination that strong 
humanitarian and practical considerations make these noncitizens, who 
entered the United States as children and were not aware of, or in 
control of, the manner or means of their entry, excellent candidates 
for designation as low enforcement priorities. Enforcement actions 
against this population are not aligned with a prioritization of border 
or national security or public safety, or with DHS's commitment to 
values-based enforcement policies.

[[Page 53753]]

    Therefore, in accordance with relevant statutory provisions, DHS's 
duty to enforce the immigration laws, and a long history of court 
decisions upholding acts of prosecutorial discretion, DHS is proposing 
this rule to continue and fortify its policy of exercising its 
enforcement discretion to defer removal as to a particular, identified 
class of noncitizens, so as to allow limited appropriated resources to 
be applied to higher priority cases.\139\
---------------------------------------------------------------------------

    \139\ There are roughly 636,410 active DACA recipients and an 
estimated total of 1.3 million individuals who could meet the 
criteria set out in this proposed rule. Migration Policy Institute, 
DACA Recipients & Eligible Population by State, https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles. Even if all such individuals are granted 
deferred action, that number represents only a small portion of the 
estimated 11 million undocumented noncitizens present in the United 
States and the available appropriated resources would remain grossly 
inadequate to the task of prosecuting and removing the estimated 
remaining 9.7 million undocumented individuals. This means that the 
proposed rule will not prevent DHS from continuing to enforce the 
immigration laws to the full extent that the resources Congress has 
given it will permit; to the contrary, as discussed below, these 
policies will facilitate still more effective use of the 
Department's finite resources.
---------------------------------------------------------------------------

1. The Secretary Is Authorized by Statute To Establish This Deferred 
Action Policy
    When Congress created DHS in 2002, it gave the Secretary authority 
over most immigration matters and placed both ICE and CBP, the two 
agencies responsible for immigration enforcement, under the Secretary's 
direction.\140\ Section 103(a)(1) of the INA states that ``the 
[Secretary] shall be charged with the administration and enforcement of 
this Act and all other laws relating to the immigration and 
naturalization of aliens.'' \141\ This sweeping grant includes 
authority to issue enforcement discretion policies such as the one 
proposed here.\142\ Congress also explicitly charged that ``the 
Secretary shall be responsible for . . . [e]stablishing national 
immigration enforcement policies and priorities,'' recognizing that the 
Secretary must provide guidance on the proper exercise of the 
Department's immigration enforcement authorities and on the allocation 
of scarce resources.\143\
---------------------------------------------------------------------------

    \140\ See Homeland Security Act of 2002, Public Law 107-296, 116 
Stat. 2136.
    \141\ See 8 U.S.C. 1103(a)(1).
    \142\ See Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 
(9th Cir. 2017) (``[T]he INA explicitly authorizes the [Secretary] 
to administer and enforce all laws relating to immigration and 
naturalization. INA 103(a)(1), 8 U.S.C. 1103(a)(1). As part of this 
authority, it is well settled that the Secretary can exercise 
deferred action, a form of prosecutorial discretion . . . .'').
    \143\ 6 U.S.C. 202(5).
---------------------------------------------------------------------------

    The review of historical practice above shows that deferred action 
has played an important role in immigration enforcement for more than 
60 years. Congress has affirmatively encouraged its use in various 
settings. In INA sec. 204(a)(1)(D)(i)(II) and (IV), 8 U.S.C. 
1154(a)(1)(D)(i)(II) and (IV), for example, Congress called attention 
to deferred action as a remedy for certain domestic violence victims 
and their children, by expressly providing that children who no longer 
could self-petition under VAWA because they were over the age of 21 
nonetheless would be ``eligible for deferred action and work 
authorization.'' Similarly, in INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2), 
Congress clarified that a denial of a request for a temporary stay of 
removal does not preclude deferred action for pending T and U 
nonimmigrant applicants. And through IMMACT 90, Congress provided post-
hoc ratification of the use of indefinite voluntary departure in the 
family fairness policy, stating that a delay in the effective date 
``shall not be construed as reflecting a Congressional belief that the 
existing family fairness program should be modified in any way before 
such date.'' \144\ Provisions like these reflect Congress' 
recognition--acting after the executive branch already has implemented 
such a policy--that identifying classes of individuals who may be 
eligible for deferred action, as an act of enforcement discretion,\145\ 
is both lawful and appropriate.\146\ Moreover, numerous regulations 
refer to deferred action, some which have been in force for nearly 40 
years, and Congress has allowed them to remain in force.\147\
---------------------------------------------------------------------------

    \144\ See IMMACT 90 sec. 301(g). As noted above, supra note 57, 
the 1987 Family Fairness Memorandum was promulgated against a 
backdrop of a failed legislative effort to provide a pathway to 
legalization for IRCA-excluded spouses and children. The 1990 Family 
Fairness Memorandum came amidst rejection of protection from 
deportation in a House bill mirroring a Senate provision. See supra 
note 61. As such, while Congress later ratified INS's administrative 
practice, there was little to no apparent prospect for legislative 
action prompting the family fairness policies at the time they were 
promulgated in 1987 and 1990. But see Texas I, 809 F.3d at 185 
(``Although the `Family Fairness' program did grant voluntary 
departure to family members of legalized aliens while they `waited 
for a visa preference number to become available for family 
members,' that program was interstitial to a statutory legalization 
scheme. DAPA is far from interstitial: Congress has repeatedly 
declined to enact the Development, Relief, and Education for Alien 
Minors Act (`DREAM Act'), features of which closely resemble DACA 
and DAPA.'') (footnotes omitted); Texas II July 16, 2021 memorandum 
and order at 66 (citing Texas I, 809 F.3d at 185) (``Family Fairness 
was `interstitial to a statutory legalization scheme,' because its 
purpose was to delay prosecution until Congress could enact 
legislation providing the same benefits, which it did when it passed 
[IMMACT 90].''). To whatever extent the 1990 Family Fairness 
Memorandum can be described as ``interstitial'' due to earlier 
passage of the Senate provision, DACA now occupies a similar 
interstitial space--the American Dream and Promise Act of 2021 
passed the House in March 2021, and the bill is currently under 
consideration in the Senate. See H.R. 6, 117th Cong., American Dream 
and Promise Act of 2021 (as passed by House, Mar. 18, 2021), https://www.congress.gov/bill/117th-congress/house-bill/6 (last visited 
Sept. 16, 2021). The Department maintains, however, that the DACA 
policy fits within the longstanding administrative practice of 
deferred action and is authorized by statute regardless of whether 
it is ``interstitial'' to a bill that is under active consideration 
by Congress.
    \145\ In the Texas II district court's July 16, 2021 memorandum 
and order, the court distinguished between ``prosecutorial 
discretion'' and ``adjudicative discretion,'' citing a past 
statement in congressional testimony by Secretary Napolitano and a 
memorandum from an INS General Counsel. DHS respectfully disagrees 
with the court's interpretation of those statements--which do not 
draw the distinction made by the district court--and also disagrees 
with the court's legal conclusions on this point. It is true, of 
course, that under the proposed rule, DHS does not simply forbear 
from initiating proceedings; it also creates a process by which 
applicants must seek forbearance through an adjudicative proceeding. 
But that process is designed to answer one question: is forbearance 
appropriate? Whenever an agency decides to exercise forbearance, it 
must engage in some kind of process. The process in the proposed 
rule is more formal and structured than many exercises of 
prosecutorial discretion, but that is deliberate and serves 
important goals; it ensures appropriate, consistent, and efficient 
consideration of the equities deemed most relevant by the Secretary.
    \146\ For other statutory references to deferred action, see, 
e.g., REAL ID Act of 2005, Public Law 109-13, div. B, sec. 
202(c)(2)(B)(viii), 119 Stat. 231, 313 (49 U.S.C. 30301 note) 
(including deferred action recipients among the classes of 
individuals with ``lawful status'' eligible for REAL ID-compliant 
driver's licenses or identification cards); National Defense 
Authorization Act for Fiscal Year 2004, Public Law 108-136, sec. 
1703(c)(1)(A) and (2), 117 Stat. 1693, 1694-95 (2003) (providing 
that the spouse, parent, or child of a U.S. citizen who died as a 
result of honorable service in combat and who was granted posthumous 
citizenship may self-petition for permanent residence and ``shall be 
eligible for deferred action, advance parole, and work 
authorization'').
    \147\ See, e.g., 8 CFR 109.1(b)(7) (1982); 8 CFR 274a.12(c)(14) 
(2014); 8 CFR 1.3(a)(4)(vi) (including noncitizens granted deferred 
action among categories of those deemed ``lawfully present in the 
United States'' for purposes of eligibility for benefits under title 
II of Social Security Act); 8 CFR 214.11(m)(2) (deferred action for 
trafficking victims who are provisionally approved for T 
nonimmigrant status and on waiting list for available visa number); 
8 CFR 214.14(d)(2) and (3) (same for U nonimmigrant status); 8 CFR 
245.24(a)(3) (``U Interim Relief means deferred action and work 
authorization benefits provided by USCIS or [INS] to applicants for 
U nonimmigrant status deemed prima facie eligible for U nonimmigrant 
status prior to publication of the U nonimmigrant status 
regulations.''); 8 CFR 245a.2(b)(5) (including among noncitizens 
eligible for adjustment to temporary resident status those who were 
granted deferred action before 1982); 28 CFR 1100.35(b) (encouraging 
the granting of deferred action and other forms of ``continued 
presence'' for victims of severe forms of trafficking in persons who 
are potential witnesses to that trafficking); 45 CFR 152.2 
(noncitizens ``currently in deferred action status'' --except those 
``with deferred action under [DHS's] deferred action for childhood 
arrivals process, as described in the [Napolitano Memorandum]''--are 
deemed ``lawfully present'' for purposes of the Pre-Existing 
Condition Insurance Plan Program).

---------------------------------------------------------------------------

[[Page 53754]]

    Finally, the fact that Congress has repeatedly considered but 
failed to enact legislative proposals to give legal status to a 
population that substantially overlaps with the population eligible for 
DACA does not call into question the Secretary's statutory authority to 
establish this deferred action policy. As the Supreme Court often has 
made clear, Congress can legislate only by following the constitutional 
procedure for enactment of law.\148\ The non-actions of a subsequent 
Congress, including its failure to do something significantly different 
from an agency action, are not themselves legislation, and they are ``a 
hazardous basis for inferring the intent of an earlier one,'' 
particularly with respect to determining whether the agency action is 
authorized by statutes that an earlier Congress enacted.\149\ When 
Congress does not act, it might be for a wide variety of reasons, 
including competing priorities and the sheer press of business.\150\ In 
any case, the DREAM Act \151\ is a substantially different policy from 
DACA. The DREAM Act proposed to grant individuals lawful status, first 
conditional and then permanent, which DHS cannot do and is not 
proposing here. By declining to enact the DREAM Act, then, Congress has 
not rejected or otherwise spoken to the Secretary's authority to 
establish the DACA policy. It bears repeating that, though well aware 
of DHS's longstanding administrative practice, including the Napolitano 
Memorandum, Congress has not taken any action to override or prohibit 
this use of deferred action.\152\
---------------------------------------------------------------------------

    \148\ See, e.g., INS v. Chadha, 462 U.S. 919, 951 (1983).
    \149\ Mackey v. Lanier Collection Agency & Serv., Inc, 486 U.S. 
825, 840 (1988) (quoting United States v. Price, 361 U.S. 304, 313 
(1960)); see also, e.g., Cal. Div. of Labor Stds. Enf. v. Dillingham 
Constr., N.A., 519 U.S. 316, 331 n.8 (1997).
    \150\ See, e.g., Central Bank of Denver, N.A. v. First 
Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994).
    \151\ The DREAM Act was first introduced in 2001 (see DREAM Act, 
S. 1291, 107th Cong., 1st Sess. (2001)) and subsequently has been 
reintroduced several times.
    \152\ Indeed, Congress has taken up, but never passed, bills to 
defund DACA processing by DHS. See, e.g., H.R. 5160, 113th Cong. 
(2014).
---------------------------------------------------------------------------

2. The Courts Have Long Recognized the Executive's Authority To 
Establish Enforcement Priorities and Grant Deferred Action
    It long has been recognized that executive agencies are entitled to 
exercise their discretion in setting enforcement priorities when they 
have limited resources. The Supreme Court explicitly recognized that 
authority in Heckler v. Chaney, when the Food and Drug Administration 
declined to proceed against an allegedly unlawful use of a particular 
drug for lethal injections.\153\ The decision whether to enforce was, 
the Court held, ``committed to agency discretion by law'' within the 
meaning of the APA.\154\ The Court said: ``This Court has recognized on 
several occasions over many years that an agency's decision not to 
prosecute or enforce, whether through civil or criminal process, is a 
decision generally committed to an agency's absolute discretion.'' 
\155\ The Court added that
---------------------------------------------------------------------------

    \153\ 470 U.S. 821 (1985) (Chaney).
    \154\ 5 U.S.C. 701(a)(2).
    \155\ Chaney, 470 U.S. at 831.

an agency decision not to enforce often involves a complicated 
balancing of a number of factors which are peculiarly within its 
expertise. Thus, the agency must not only assess whether a violation 
has occurred, but whether agency resources are best spent on this 
violation or another, whether the agency is likely to succeed if it 
acts, whether the particular enforcement action requested best fits 
the agency's overall priorities, and, indeed, whether the agency has 
enough resources to undertake the action at all.\156\
---------------------------------------------------------------------------

    \156\ Id.

    Regarding immigration enforcement, in Arizona v. United States, the 
Supreme Court relied on the Federal Government's broad immigration 
enforcement discretion to declare several provisions of an Arizona 
immigration enforcement statute unconstitutional.\157\ The Court 
described the scope of that enforcement discretion in sweeping terms: 
``A principal feature of the removal system is the broad discretion 
exercised by immigration officials. . . . Federal officials, as an 
initial matter, must decide whether it makes sense to pursue removal at 
all.'' \158\ Over a decade earlier, the Court emphasized that even 
after choosing to initiate enforcement action, immigration officials 
may ``abandon the endeavor'' of immigration enforcement ``at each 
stage'' of the process.\159\ Several Federal courts of appeals have 
made similar statements, recognizing that the Executive has extremely 
broad discretionary authority when deciding how to allocate enforcement 
resources, including when to forbear removal on humanitarian 
grounds.\160\
---------------------------------------------------------------------------

    \157\ 132 S. Ct. 2492 (2012).
    \158\ Id. at 2499, citing Brief for Former Commissioners of the 
United States Immigration and Naturalization Service as Amici Curiae 
8-13.
    \159\ AADC, 525 U.S. at 483-84.
    \160\ See AADC, 525 U.S. at 483-84 (``[A]t the time IIRIRA was 
enacted the INS had been engaging in a regular practice (which had 
come to be known as `deferred action') of exercising that discretion 
for humanitarian reasons or simply for its own convenience.''); 
Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487 (9th Cir. 
2018) (``Deferred action refers to an exercise of administrative 
discretion by the [immigration agency] under which [it] takes no 
action to proceed against an apparently deportable alien based on a 
prescribed set of factors generally related to humanitarian 
grounds.'' (internal quotation marks omitted)); Arpaio v. Obama, 797 
F.3d 11, 16 (D.C. Cir. 2015) (``Whether to initiate removal 
proceedings and whether to grant relief from deportation are among 
the discretionary decisions the immigration laws assign to the 
executive.''); Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015) 
(``Under the INA, the [Secretary] is `charged with the 
administration and enforcement of the INA and all other laws 
relating to the immigration and naturalization of aliens. . . .' 
Although the [Secretary] is charged with enforcement of the INA, `a 
principal feature of the removal system is the broad discretion 
exercised by immigration officials.' In fact, the Supreme Court has 
recognized that the concerns justifying criminal prosecutorial 
discretion are `greatly magnified in the deportation context.' '' 
(internal brackets and citations omitted)).
---------------------------------------------------------------------------

    Indeed, for more than 20 years the Supreme Court specifically has 
recognized deferred action--that is, the decision to temporarily 
forbear from pursuing the removal of a noncitizen--as a core feature 
and ``regular practice'' of the Executive's discretionary 
authority.\161\ The Court confirmed this understanding in the context 
of the 2012 DACA policy, stating that ``[t]he defining feature of 
deferred action is the decision to defer removal (and to notify the 
affected alien of that decision).'' \162\ One Federal court aptly 
described deferred action this way:
---------------------------------------------------------------------------

    \161\ See AADC, 525 U.S. at 483-84.
    \162\ Regents, 140 S. Ct. at 1911.

    [T]he executive branch has long used an enforcement tool known 
as ``deferred action'' to implement enforcement policies and 
priorities, as authorized by statute. Deferred action is simply a 
decision by an enforcement agency not to seek enforcement of a given 
statutory or regulatory violation for a limited period of time. In 
the context of the immigration laws, deferred action represents a 
decision by DHS not to seek the removal of an alien for a set period 
of time. In this sense, eligibility for deferred action represents 
an acknowledgment that those qualifying individuals are the lowest 
priority for enforcement.\163\
---------------------------------------------------------------------------

    \163\ Arpaio v. Obama, 27 F. Supp. 3d 185, 192-93 (D.D.C. 2014), 
aff'd, 797 F.3d 11 (D.C. Cir. 2015).

    The Court in Arizona recognized the Federal Government's 
appropriate focus on just the type of criteria for forbearance policies 
---------------------------------------------------------------------------
found in the 2012 DACA policy and in this proposed rule:

    Discretion in the enforcement of immigration law embraces 
immediate human concerns. Unauthorized workers trying to support 
their families, for example, likely pose less danger than alien 
smugglers or aliens who commit a serious crime. The equities of an 
individual case may turn on many factors, including . . . long ties 
to the community, or a record of distinguished

[[Page 53755]]

military service. . . . Returning an alien to his own country may be 
deemed inappropriate even where he . . . fails to meet the criteria 
for admission.\164\
---------------------------------------------------------------------------

    \164\ Arizona, 132 S. Ct. at 2499. See also Casa de Maryland v. 
DHS, 924 F.3d 684, 691 (4th Cir. 2019) (``Because of the `practical 
fact,' however, that the government can't possibly remove all such 
noncitizens, the Secretary has discretion to prioritize the removal 
of some and to deprioritize the removal of others.'').

    The Supreme Court's 8-1 decision in AADC, cited above, is 
noteworthy. Emphasizing the breadth of the Executive power to decide 
whether to grant deferred action, the Court observed that ``[a]t each 
stage the Executive has discretion to abandon [the removal process], 
and at the time IIRIRA was enacted the INS had been engaging in a 
regular practice (which had come to be known as `deferred action') of 
exercising that discretion for humanitarian reasons or simply for its 
own convenience.'' \165\
---------------------------------------------------------------------------

    \165\ AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------

    The lower courts have described this specific form of enforcement 
discretion in equally broad terms. In Regents of the Univ. of Cal. v. 
DHS, the U.S. Court of Appeals for the Ninth Circuit stated that 
``[d]eferred action is a decision by Executive Branch officials not to 
pursue deportation proceedings against an individual or class of 
individuals otherwise eligible for removal from this country.'' \166\ 
It likewise found that ``it is well settled that the Secretary can 
exercise deferred action, a form of prosecutorial discretion whereby 
[DHS] declines to pursue the removal of a person unlawfully present in 
the United States.'' \167\ The Fifth and Eleventh Circuits also have 
acknowledged deferred action as an appropriate exercise of enforcement 
discretion.\168\ Indeed, the courts' acceptance of this type of policy 
announcing enforcement discretion long predates DACA, including several 
cases that refer to deferred action by name (or in some cases by its 
earlier name, ``non-priority status'') as a nonreviewable exercise of 
immigration enforcement discretion.\169\
---------------------------------------------------------------------------

    \166\ 908 F.3d at 487.
    \167\ Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901 (9th Cir. 
2016).
    \168\ Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir. 1983) 
(granting or withholding deferred action ``is firmly within the 
discretion of the INS'' and, therefore, can be granted or withheld 
``as [the relevant official] sees fit, in accord with the abuse of 
discretion rule when any of the [then] five determining conditions 
is present''); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 
1976) (``The decision to grant or withhold non-priority status [the 
former name for deferred action] therefore lies within the 
particular discretion of the INS, and we decline to hold that the 
agency has no power to create and employ such a category for its own 
administrative convenience without standardizing the category and 
allowing applications for inclusion in it.'').
    \169\ See, e.g., AADC, 525 U.S. at 483-84; Botezatu v. INS, 195 
F.3d 311, 314 (7th Cir. 1999); Mada-Luna v. Fitzpatrick, 813 F.2d 
1006, 1008 (9th Cir. 1987); Pasquini v. Morris, 700 F.2d 658, 661 
(11th Cir. 1983); David v. INS, 548 F.2d 219, 223 (8th Cir. 1977); 
Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976).
---------------------------------------------------------------------------

    Of course, as explained above, the DAPA and Expanded DACA policies 
were subjected to court challenges and ultimately were not implemented, 
and the Napolitano Memorandum recently was vacated by a district court. 
But to the extent that courts have found substantive flaws in those 
policies, they have not found that DHS may not forbear from removing 
certain noncitizens, or identifying policy considerations and criteria 
relevant to such forbearance, because forbearance from removal is so 
strongly rooted in long-recognized executive enforcement discretion 
authorities.\170\ In focusing on those individuals who came to the 
country many years ago as children, have grown up here, have gone to 
school here, in some cases have served honorably in the Armed Forces, 
and do not pose a threat to public safety, national security, or border 
security, the DACA policy appropriately affords deferred action to some 
of the lowest priority removable noncitizens in the immigration system.
---------------------------------------------------------------------------

    \170\ See Texas I at 655-56. Texas v. United States, 787 F.3d 
733 (5th Cir. 2015), aff'd by equally divided Court, 136 S. Ct. 2271 
(2016); see also Texas II July 16, 2021 memorandum and order at 74.
---------------------------------------------------------------------------

3. This Deferred Action Policy Conforms to Legal Limitations on the 
Executive's Enforcement Discretion
    DHS recognizes that the Executive's enforcement discretion is not 
unlimited. Respect for Article I of the Constitution, the bedrock 
principles of separation of powers, and the rule of law compels careful 
consideration of the legal limits on all executive action, including 
enforcement discretion. After careful consideration, DHS proposes a 
rule that fully respects those limits.\171\
---------------------------------------------------------------------------

    \171\ Other cogent discussions of the legal constraints on 
enforcement discretion in immigration reach analogous conclusions. 
See Written Testimony of Stephen H. Legomsky, Washington University 
School of Law, in Unconstitutionality of Obama's Executive Actions 
on Immigration: Hearing Before the House Comm. on the Judiciary, 
114th Cong., at 74-76 (2015), https://www.govinfo.gov/content/pkg/CHRG-114hhrg93526/pdf/CHRG-114hhrg93526.pdf.
---------------------------------------------------------------------------

    One limit, as the Supreme Court has observed, is that an agency may 
not ``disregard legislative direction in the statutory scheme that the 
agency administers. Congress may limit an agency's exercise of 
enforcement power if it wishes, either by setting substantive 
priorities, or by otherwise circumscribing an agency's power to 
discriminate among issues or cases it will pursue.'' \172\
---------------------------------------------------------------------------

    \172\ Chaney, 470 U.S. at 833.
---------------------------------------------------------------------------

    The proposed rule does not ``disregard'' legislative direction; it 
affirmatively effectuates it. As the Court pointed out in Chaney, 
Congress can limit executive discretion by ``setting substantive 
priorities.'' With respect to immigration enforcement, Congress in fact 
has directed the Secretary to prioritize three missions: National 
security, public safety through the removal of serious criminal 
offenders (by level of severity of the crime), and border 
security.\173\ Those are precisely the central priorities that the 
proposed rule expressly incorporates. Nor does any statutory provision 
attempt to ``limit [DHS's] exercise of enforcement power'' by 
``otherwise circumscribing [DHS's] power to discriminate among issues 
or cases it will pursue.''
---------------------------------------------------------------------------

    \173\ A mandate to prioritize the removal of criminal offenders, 
taking into account the severity of the crime, has been included in 
every annual DHS appropriations act since 2009. See, e.g., 
Consolidated Appropriations Act, 2014, Public Law 113-76, div. F, 
tit. II, 128 Stat. 5, 251; Consolidated Security, Disaster 
Assistance, and Continuing Appropriations Act, 2009, Public Law 110-
329, div. D, tit. II, 122 Stat. 3574, 3659 (2008); see also INA 
secs. 235(b)(1) and (c) and 236(c)(1)(D), 8 U.S.C. 1225(b)(1) and 
(c) and 1226(c)(1)(D) (prioritizing national security and border 
security).
---------------------------------------------------------------------------

    Further, as noted earlier, INA sec. 103(a), 8 U.S.C. 1103(a), 
confers broad powers on the Secretary in connection with ``the 
administration and enforcement'' of the immigration laws, and section 
402(5) of the Homeland Security Act, 6 U.S.C. 202(5), charges the 
Secretary with the more specific duty of ``establishing national 
immigration enforcement policies and priorities.'' In discharging that 
responsibility to establish immigration enforcement policies and 
priorities, the Secretary exercises their ``control, direction, and 
supervision'' over DHS employees, INA sec. 103(a)(2), 8 U.S.C. 
1103(a)(2), and may ``establish such regulations; prescribe such forms 
of bond, reports, entries, and other papers; issue such instructions; 
and perform such other acts as he deems necessary for carrying out his 
authority,'' INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). The proposed rule 
is thus consistent with another important congressional policy--the 
decision to entrust the optimal allocation of finite immigration 
enforcement resources to the Secretary's broad discretion.
    As discussed above, the enforcement priorities that animate the 
proposed rule include national security, public safety through the 
removal of serious criminal

[[Page 53756]]

offenders based on the severity of the particular crimes, and border 
security. At the same time, when resources do not permit universal 
enforcement, prioritizing some goals requires deprioritizing others. 
The proposed rule deprioritizes the removal of those individuals who 
came to the United States many years ago as children; have lived in the 
United States peacefully and productively for substantial periods; and 
have been or are likely to be productive contributors to American 
society, via education, employment, and national service.
    The use of deferred action as the particular vehicle for exercising 
this enforcement discretion is equally rational. This proposed deferred 
action policy would (1) encourage undocumented noncitizens to come 
forward, identify and present themselves to the Department, provide 
their addresses and other personal information, and supply fingerprints 
that will permit background checks; (2) enable USCIS--using funds 
raised by fees, provided in part by the deferred action requestors 
themselves--periodically to identify and investigate a large class of 
undocumented noncitizens who do not pose a threat to national security, 
border security, or public safety, thus permitting the DHS immigration 
enforcement agencies to focus their resources on the remaining higher 
priority individuals; (3) make communities safer by further enabling 
undocumented noncitizens who are crime victims or witnesses to report 
crimes to the police without fear of being arrested, detained, and 
removed; (4) significantly increase tax revenues as the wages and tax 
filing rates of deferred action recipients rise; and (5) protect the 
reliance interests of current DACA recipients--as well as their family 
members, employers, and educational institutions, among others--who 
have built lives and structured programs based on the existence of a 
national enforcement discretion program for this low-priority 
population.\174\
---------------------------------------------------------------------------

    \174\ See Regents, 140 S. Ct. at 1914 (``DACA recipients have 
`enrolled in degree programs, embarked on careers, started 
businesses, purchased homes, and even married and had children, all 
in reliance' on the DACA program. The consequences of the 
rescission, respondents emphasize, would `radiate outward' to DACA 
recipients' families, including their 200,000 U.S.-citizen children, 
to the schools where DACA recipients study and teach, and to the 
employers who have invested time and money in training them. In 
addition, excluding DACA recipients from the lawful labor force may, 
they tell us, result in the loss of $215 billion in economic 
activity and an associated $60 billion in federal tax revenue over 
the next ten years. Meanwhile, States and local governments could 
lose $1.25 billion in tax revenue each year.'' (internal citations 
omitted)).
---------------------------------------------------------------------------

    A second limit, to quote the Supreme Court's Chaney decision once 
more, is that an agency's enforcement policy cannot amount to an 
``abdication of its statutory responsibilities.'' \175\ The proposed 
rule comes nowhere close to an abdication, given the enormous resources 
that the Department would continue to dedicate toward immigration 
enforcement during implementation of the proposed rule, and the basic 
practical reality that Congress has not appropriated sufficient 
resources for DHS to pursue all immigration enforcement that is 
available.\176\ Indeed, the proposed rule would not prevent DHS from 
continuing to use all the resources Congress has appropriated for 
immigration enforcement. There can thus be no suggestion of abdication; 
DHS will continue to enforce the immigration laws as fully as its 
appropriated resources allow.
---------------------------------------------------------------------------

    \175\ Chaney, 470 U.S. at 833 n.4.
    \176\ The ``abdication'' standard was tested in Texas v. United 
States, 106 F.3d 661 (5th Cir. 1997). The State of Texas sued the 
Federal Government, alleging that the Government had failed to 
control undocumented immigration and that the State had incurred 
economic costs as a result. A unanimous panel of the U.S. Court of 
Appeals for the Fifth Circuit dismissed the claim. The court held: 
``We reject out-of-hand the State's contention that the federal 
defendants' alleged systemic failure to control immigration is so 
extreme as to constitute a reviewable abdication of duty.'' 106 F.3d 
at 667. The claim failed because ``[t]he State does not contend that 
federal defendants are doing nothing to enforce the immigration laws 
or that they have consciously decided to abdicate their enforcement 
responsibilities. Real or perceived inadequate enforcement of 
immigration laws does not constitute a reviewable abdication of 
duty.'' Id.; see also id. (``The State candidly concedes . . . that 
[INA sec. 103] places no substantive limits on the Attorney General 
and commits enforcement of the INA to her discretion.'').
---------------------------------------------------------------------------

    In view of these two limits, the Department does not believe that 
it could grant deferred action to every noncitizen in the United States 
who lacks lawful status, whether all at once or ``in smaller numbers, 
group-by-group.'' \177\ But the proposed rule, limited in nature and 
scope, would stop far short of such drastic action. And after careful 
consideration, the Department believes it does possess the authority to 
adopt the deferred action policy reflected in the proposed rule.\178\
---------------------------------------------------------------------------

    \177\ Texas II July 16, 2021 memorandum and order at 64.
    \178\ The district court in Texas II also concluded that ``DACA 
is an unreasonable interpretation of the law because it usurps the 
power of Congress to dictate a national scheme of immigration laws 
and is contrary to the INA.'' The Department respectfully disagrees 
and reiterates that its authority to create and implement DACA is 
vested in the Secretary's broad authority under the INA and the 
Homeland Security Act of 2002 to administer the immigration laws of 
the United States and establish national immigration enforcement 
policies and priorities, as explained above.
    Relying on a Supreme Court case, Arizona v. United States, 567 
U.S. 387, 406 (2012), the Texas II court concluded that the 
Department's interpretation of its authority is unreasonable because 
``Congress intended to completely preempt further regulation in the 
area of immigration,'' including regulation by the Department with 
respect to employment authorization of noncitizens. In the 
Department's view, the Texas II court's reliance on Arizona was 
misplaced. There, the Court held that an Arizona statute that made 
it a criminal offense for a noncitizen without work authorization to 
seek or engage in employment was preempted by Federal law because 
``it would interfere with the careful balance struck by Congress 
with respect to unauthorized employment of aliens.'' The DACA policy 
gives rise to no such interference. DACA is not a State statute that 
impinges or usurps Congress' plenary power over the ``field'' of 
immigration. Rather, DACA is a policy created by a department of the 
executive branch of government that, under Federal law, is vested 
with the authority to act on immigration matters.
---------------------------------------------------------------------------

D. Employment Authorization

    Since the inception of DACA in 2012, DACA recipients--like all 
other deferred action recipients--have been eligible for employment 
authorization under 8 CFR 274a.12(c)(14), a decades-old regulation that 
allows noncitizens who are provided deferred action from immigration 
enforcement the opportunity to apply for such authorization and receive 
an EAD if they establish an economic necessity for employment.\179\ 
``Economic necessity'' is based on the Federal Poverty Guidelines at 45 
CFR 1060.2, and existing regulations at 8 CFR 274a.12(e) define the 
criteria necessary to establish the noncitizen's economic need to work. 
This proposed rule would not change the eligibility of DACA recipients 
to apply for work authorization or alter the existing general rule for 
establishing economic necessity. This rule proposes to codify DACA-
related employment authorization in a new paragraph designated 8 CFR 
274a.12(c)(33).\180\ As with 8 CFR 274a.12(c)(14), the new paragraph 
(c)(33) would continue to specify that the noncitizen must have been 
granted deferred action and must establish economic need to be eligible 
for employment authorization.
---------------------------------------------------------------------------

    \179\ As discussed below, such discretionary employment 
authorization for individuals provided deferred action has been 
codified in similar regulations since publication of the predecessor 
regulation at 8 CFR 109.1(b)(6) in 1981. See Employment 
Authorization to Aliens in the United States, 46 FR 25079 (May 5, 
1981).
    \180\ Although currently issued under 8 CFR 274a.12(c)(14), a 
DACA-related EAD does not have the ``C-14'' code on its face, but 
rather ``C-33'' to assist DHS in distinguishing DACA recipients' 
EADs for operational and statistical tracking purposes.
---------------------------------------------------------------------------

    This rule also proposes a relatively modest change to existing DACA 
practice, which requires all DACA requestors to submit the Form I-765,

[[Page 53757]]

Application for Employment Authorization, and the Form I-765WS, 
Employment Authorization Worksheet. DHS proposes instead to make it 
optional for each DACA requestor to apply for employment authorization 
and an EAD. DHS proposes as well to modify the Form I-821D, 
Consideration of Deferred Action for Childhood Arrivals, to contain a 
place for the requestor to indicate whether they also are filing the 
Form I-765 and the Form I-765WS concurrently. A DACA requestor may also 
wait until after receiving a DACA approval notice before applying for 
employment authorization. A DACA requestor or recipient who chooses to 
request employment authorization must file Form I-765 and Form I-765WS 
and pay all associated fees.\181\ This rule does not propose any 
changes to the existing general rule for establishing economic 
necessity, which will continue to be determined on a case-by-case basis 
pursuant to 8 CFR 274a.12(e). This rule further proposes that the 
termination of a noncitizen's DACA, in accordance with 8 CFR 
274a.14(a), would result in the automatic termination of any DACA-
related employment authorization and employment authorization 
documentation obtained by the noncitizen.
---------------------------------------------------------------------------

    \181\ See discussion of fees at Section IV.A below.
---------------------------------------------------------------------------

    Since at least the 1970s, the INS and later DHS have made 
employment authorization available for noncitizens without lawful 
immigration status who nevertheless are provided deferred action or 
certain other forms of prosecutorial discretion.\182\ Although there 
was no general Federal prohibition on employing noncitizens without 
work authorization until the enactment of IRCA in 1986,\183\ working 
without authorization nevertheless could cause certain categories of 
nonimmigrants to violate their status. INS thus had a long practice of 
notating the I-94 of a nonimmigrant provided such authorization,\184\ 
and it continued the practice for certain categories of noncitizens 
without nonimmigrant status.\185\ In 1972, Congress made work 
authorization a prerequisite for certain noncitizens to obtain a Social 
Security number.\186\ Congress ratified the INS's position that it had 
discretion under the INA to authorize noncitizens to work in enacting 
the Farm Labor Contractor Registration Act Amendments of 1974 
(FLCRAA).\187\ The FLCRAA made it unlawful for farm labor contractors 
to employ knowingly any ``alien not lawfully admitted for permanent 
residence or who has not been authorized by the Attorney General to 
accept employment.'' \188\
---------------------------------------------------------------------------

    \182\ See generally Sam Bernsen, Employment Rights of Aliens 
Under the Immigration Laws, In Defense of the Alien, Vol. 2 (1979), 
at pp. 21, 32-33 (collecting former INS OI on employment 
authorization), reprinted at https://www.jstor.org/stable/23142996. 
For example, the former INS's OI in 1969 allowed for discretionary 
employment authorization to be issued to individuals who were 
provided voluntary departure, which permitted certain deportable 
noncitizens to remain in the United States until an agreed-upon date 
at which point they had to leave at their own expense but without 
the INS needing to obtain an order of removal. See INS OI 242.10(b) 
(Jan. 29, 1969).
    \183\ Public Law 99-603, 100 Stat. 3359.
    \184\ See, e.g., INS OI 214.2(j) (Nov. 16, 1962) and 214.2(f) 
(Aug. 15, 1958). See generally Sam Bernsen, Lawful Work for 
Nonimmigrants, 48 No. 21 Interpreter Releases, 168 (June 21, 1971) 
(noting that nonimmigrants were not subject to numerical limitations 
but were subject to work restrictions).
    \185\ See supra note 182.
    \186\ See Social Security Amendments of 1972, Public Law 92-603, 
sec. 137, 86 Stat. 1329, 1364-65 (codified as amended at 42 U.S.C. 
405(c)(2)(B)(i)(I) (1979)); see also Sam Bernsen, Leave to Labor, 52 
No. 35 Interpreter Releases 291, 294 (Sept. 2, 1975).
    \187\ Public Law 93-518, sec. 11(a)(3), 88 Stat. 1652, 1655.
    \188\ 7 U.S.C. 1045(f) (Supp. IV 1974); see 7 U.S.C. 2044(b) 
(1970 and Supp. IV 1974) (contractor's license could be revoked on 
same basis).
---------------------------------------------------------------------------

    In 1975, INS's General Counsel explained that INS authorized 
certain noncitizens to work in cases ``when we do not intend or are 
unable to enforce the alien's departure . . . .'' \189\ The broad 
authority in section 103(a) of the INA, 8 U.S.C. 1103(a), charging the 
``Attorney General'' and, ever since 2003, the Secretary, with ``the 
administration and enforcement of this chapter and all other laws 
relating to the immigration and naturalization of aliens'' consistently 
has been interpreted to allow for the granting of such discretionary 
employment authorization to noncitizens.\190\
---------------------------------------------------------------------------

    \189\ Sam Bernsen, Leave to Labor; 52 No. 35 Interpreter 
Releases 291, 294-95 (Sept. 2, 1975).
    \190\ See Proposed Rules for Employment Authorization for 
Certain Aliens, 44 FR 43480 (July 25, 1979) (first regulation 
collecting employment authorization policies). These provisions 
grant the Secretary broad discretion to determine the most effective 
way to administer the laws. See Narenji v. Civiletti, 617 F.2d 745, 
747 (D.C. Cir. 1979) (observing that the INA ``need not specifically 
authorize each and every action taken by the Attorney General [(now 
Secretary)], so long as his action is reasonably related to the 
duties imposed upon him'').
---------------------------------------------------------------------------

    By the late 1970s, INS work authorizations commonly were issued. In 
1979, the INS published a proposed rule that for the first time sought 
to codify its existing employment authorization practices.\191\ In the 
preamble, the INS stated that ``[t]he Attorney General's authority to 
grant employment authorization stems from section 103(a) of the 
Immigration and [Nationality] Act[,] which authorizes him to establish 
regulations, issue instructions, and perform any actions necessary for 
the implementation and administration of the Act.'' \192\ The INS also 
noted additional recognition by Congress of this authority in the 
enactment of an amendment that barred from adjustment of status to 
permanent residence any noncitizen (with certain exceptions) who after 
January 1, 1977, engages in unauthorized employment prior to filing an 
application for adjustment of status.\193\ The preamble further noted 
that employment authorization could be obtained by noncitizens who were 
prima facie entitled to an immigration benefit such as adjustment of 
status, suspension of deportation, or asylum, as well as
---------------------------------------------------------------------------

    \191\ 44 FR 43480 (July 25, 1979).
    \192\ Id. (further noting that the Attorney General had 
delegated the authority to the Commissioner of the INS).
    \193\ Id. (citing Pub. L. 94-571, sec. 6, 90 Stat. 2703, 2705-06 
(1976), which amended INA sec. 245(c) regarding adjustment of status 
to permanent resident--the INS mistakenly cited the law as ``Pub. L. 
95-571'').

    [a]n alien who, as an exercise of [INS's] prosecutorial 
discretion, has been allowed to remain in the United States for an 
indefinite or extended period of time . . . . The proposed 
regulation states that the application for employment authorization 
may be granted if the alien establishes that he is financially 
unable to maintain himself during the applicable period.\194\
---------------------------------------------------------------------------

    \194\ Id.

    When the final rule was published in 1981 as new part 109 to title 
8 of the Code of Federal Regulations,\195\ it not only enabled various 
classes of noncitizens authorized by specific statutes to work, but 
also permitted discretionary work authorization for certain other 
noncitizens without lawful status, such as those who (1) had pending 
applications for asylum, adjustment of status, or suspension of 
deportation; (2) had been granted voluntary departure; or (3) had been 
recommended for deferred action.\196\ The new 8 CFR 109.1(b)(6) 
published in 1981 specifically listed the following as a class of 
noncitizens who could apply for work authorization to the INS district 
director for the district in which the noncitizen resided:
---------------------------------------------------------------------------

    \195\ In 1980, the INS had issued a second proposed rule for 
notice and comment after modifying the initial rule based on public 
comments. See Employment Authorization, 45 FR 19563 (March 26, 1980) 
(preamble continued to note that INA sec. 103(a) provides legal 
authority for issuance of employment authorization).
    \196\ See Employment Authorization to Aliens in the United 
States, 46 FR 25079 (May 5, 1981).

    Any alien in whose case the district director recommends 
consideration of deferred action, an act of administrative 
convenience to the government which gives some cases lower priority: 
Provided, the alien

[[Page 53758]]

establishes to the satisfaction of the district director that he/she 
is financially unable to maintain himself/herself and family without 
employment.\197\
---------------------------------------------------------------------------

    \197\ Id. at 25081.

In November 1981, the INS moved the employment authorization provision 
for individuals granted deferred action to 8 CFR 109.1(b)(7) when it 
further expanded the categories of noncitizens who could be granted 
employment authorization to include paroled noncitizens and deportable 
noncitizens granted voluntary departure, either prior to or at the 
conclusion of immigration proceedings.\198\
---------------------------------------------------------------------------

    \198\ See Employment Authorization; Revision to Classes of 
Aliens Eligible, 46 FR 55920 (Nov. 13, 1981).
---------------------------------------------------------------------------

    When Congress passed IRCA in 1986,\199\ making it unlawful for the 
first time for employers knowingly to hire ``an unauthorized alien'' 
for employment, Congress was well aware of the INS's longstanding 
practice of granting employment authorization to noncitizens, including 
the regulations permitting the agency to provide employment 
authorization to certain categories of noncitizens who had no lawful 
immigration status.\200\ During the extensive legislative deliberations 
leading to IRCA, the INS also was considering a petition for rulemaking 
from the Federation for American Immigration Reform (FAIR) that 
directly challenged the 1981 employment authorization regulations as 
ultra vires, particularly INS's authority to provide such authorization 
to noncitizens who had not been specifically authorized by statute to 
work, which the INS had published for public comment.\201\ FAIR's 
petition sought to have the INS rescind 8 CFR 109.1(b) through a new 
rulemaking.
---------------------------------------------------------------------------

    \199\ Public Law 99-603, 100 Stat. 3359.
    \200\ See 8 U.S.C. 1324a(a)(1).
    \201\ See Employment Authorization, 51 FR 39385, 39386-39387 
(Oct. 28, 1986).
---------------------------------------------------------------------------

    Before the agency acted on FAIR's petition, Congress intervened and 
ratified the INS's interpretation of its legal authority to provide 
employment authorization by providing in IRCA that:

    the term ``unauthorized alien'' means, with respect to the 
employment of an alien at a particular time, that the alien is not 
at that time either (A) an alien lawfully admitted for permanent 
residence, or (B) authorized to be so employed by [the INA] or by 
the Attorney General.\202\
---------------------------------------------------------------------------

    \202\ See IRCA sec. 101(a)(1), 100 Stat. 3359, 3368 (codified at 
INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3)).

At the very same time that Congress made it unlawful for an employer 
knowingly to hire a person who is unauthorized to work, Congress 
recognized that a person could be authorized to work by the Attorney 
General.
    After publishing proposed regulations to implement IRCA and 
soliciting extensive public comment, including extending the comment 
period on the still-pending FAIR petition, the INS ultimately denied 
that petition.\203\ In its denial, the INS noted both its broad 
authority in section 103(a) of the INA, 8 U.S.C. 1103(a), to administer 
the immigration laws and the new definition of ``unauthorized alien'' 
in section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), by explaining 
that
---------------------------------------------------------------------------

    \203\ See Employment Authorization; Classes of Aliens Eligible, 
51 FR 45338 (Dec. 18, 1986); Control of Employment of Aliens, 52 FR 
8762 (Mar. 19, 1987); and Employment Authorization; Classes of 
Aliens Eligible, 52 FR 46092 (Dec. 4, 1987) (denial of FAIR 
petition).

    the only logical way to interpret this phrase is that Congress, 
being fully aware of the Attorney General's authority to promulgate 
regulations, and approving of the manner in which he has exercised 
that authority in this matter, defined ``unauthorized alien'' in 
such fashion as to exclude aliens who have been authorized 
employment by the Attorney General through the regulatory process, 
in addition to those who are authorized employment by statute.\204\
---------------------------------------------------------------------------

    \204\ See Employment Authorization; Classes of Aliens Eligible, 
52 FR at 46093 (Dec. 4, 1987).

This contemporaneous interpretation--which has remained undisturbed by 
Congress for nearly 35 years--is entitled to considerable weight.
    The final IRCA regulations incorporated the statutory definition of 
``unauthorized alien'' from section 274a(h)(3) of the INA, 8 U.S.C. 
1324a(h)(3), for employment purposes at 8 CFR 274a.1. The rules also 
redesignated the employment authorization regulations in part 109, with 
amendments, as part 274a, subpart B, in title 8 of the Code of Federal 
Regulations, with work authorization made available for noncitizens 
with deferred action who establish an economic necessity in 8 CFR 
274a.12(c)(14).\205\ In 8 CFR 274a.12(d) (1987), the rules further 
described the basic criteria and procedures to establish ``economic 
necessity'' as based on the Federal Poverty Guidelines. The new rules 
also included employment authorization for noncitizens who were members 
of a nationality group granted EVD, a form of prosecutorial discretion 
described in greater detail above.\206\
---------------------------------------------------------------------------

    \205\ See 52 FR 16216 (May 1, 1987).
    \206\ See 8 CFR 274a.12(a)(11) (1987). See also general 
discussion above of EVD and its successor, DED. After the term EVD 
became obsolete, the employment authorization provision was amended 
to cover noncitizens provided DED pursuant to a directive from the 
President to the Secretary and under the conditions established by 
the Secretary in accord with the presidential directive. See current 
8 CFR 274a.12(a)(11).
---------------------------------------------------------------------------

    In the years following the enactment of IRCA and promulgation of 
the employment authorization regulations, the provisions relating to 
employment authorization for noncitizens with deferred action have 
remained substantively the same. As noted above, under subsequent 
administrations since the 1987 promulgation of 8 CFR 274a.12(c)(14), 
the INS and then DHS have continued to provide deferred action to 
individuals who are members of specific groups and to grant them 
eligibility for employment authorization on a case-by-case basis.\207\
---------------------------------------------------------------------------

    \207\ See, e.g., Memorandum for Regional Directors, et al., INS, 
from Paul W. Virtue, Acting Executive Associate Commissioner, INS, 
Re: Supplemental Guidance on Battered Alien Self-Petitioning Process 
and Related Issues (May 6, 1997) (directing individualized 
determinations of deferred action for pending self-petitioners under 
VAWA); USCIS Announces Interim Relief for Foreign Students Adversely 
Impacted by Hurricane Katrina, press release, dated Nov. 25, 2005; 
Memorandum from Donald Neufeld, Acting Associate Director, USCIS 
Office of Domestic Operations, Guidance Regarding Surviving Spouses 
of Deceased U.S. Citizens and Their Children (Sept. 4, 2009) 
(directing deferred action and employment authorization for widows 
and widowers whose immigrant petitions had not been decided before 
their spouses died); Napolitano Memorandum (establishing DACA and 
directing that determinations be made as to whether eligible 
individuals qualify for work authorization during their period of 
deferred action).
---------------------------------------------------------------------------

    After IRCA, Congress made certain limited amendments to the 
employment-related provisions in the INA,\208\ but Congress never has 
modified INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3), the provision that 
recognizes that the Attorney General (now the Secretary) may authorize 
noncitizens to be lawfully employed.\209\ Congress also periodically 
has limited the classes of noncitizens who may receive employment 
authorization,\210\

[[Page 53759]]

but it never has altered the policy in existence since at least the 
1970s (and codified in regulations since 1981) that noncitizens granted 
deferred action may apply for and obtain discretionary employment 
authorization. In fact, as noted above, Congress has enacted statutes 
that recognized and adopted existing USCIS deferred action practices 
for certain noncitizens, such as pending T and U nonimmigrant 
applicants and petitioners, without altering 8 CFR 274a.12(c)(14), 
which provided for their ability to apply for employment 
authorization.\211\
---------------------------------------------------------------------------

    \208\ See, e.g., IMMACT 90, Public Law 101-649, tit. V, subtit. 
C, 104 Stat. 4978 (1990) (codified as amended at various sections of 
8 U.S.C. 1324a and 1324b--additional provisions related to employer 
sanctions and anti-discrimination in employment of noncitizens); 
IIRIRA, Public Law 104-208, div. C, tit. IV, 110 Stat. 3009, 3009-
655-3009-670 (codified as amended at various sections of 8 U.S.C. 
1324a and 1324b--adding provisions for pilot programs on identity 
and employment eligibility verification, amendments regarding 
employer sanctions, and amendments regarding unfair immigration-
related employment practices).
    \209\ Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), 
recognizes that employment may be authorized by statute or by the 
Secretary. See, e.g., Ariz. Dream Act Coal. v. Brewer, 757 F.3d 
1053, 1062 (9th Cir. 2014) (``Congress has given the Executive 
Branch broad discretion to determine when noncitizens may work in 
the United States.''); Perales v. Casillas, 903 F.2d 1043, 1050 (5th 
Cir. 1990) (noting the broad, discretionary employment authorization 
authority in INA sec. 274A(h)(3) and the implementing EAD 
regulations).
    \210\ See, e.g., 8 U.S.C. 1158(d)(2) (asylum applicants not 
otherwise eligible for employment authorization shall not be 
eligible for employment authorization prior to 180 days after filing 
asylum application if regulations authorize such employment); 8 
U.S.C. 1226(a)(3) (detained noncitizen may not be provided work 
authorization, even if released, unless the noncitizen is lawfully 
admitted for permanent residence or otherwise would--without regard 
to removal proceedings--be provided such authorization); 8 U.S.C. 
1231(a)(7) (limiting circumstances in which noncitizens ordered 
removed may be eligible to receive employment authorization). 
Indeed, those provisions restricting employment authorization 
reasonably can be construed as reflecting Congress' general 
understanding that the Attorney General, now the Secretary, 
otherwise has statutory authority to provide employment 
authorization to noncitizens, including those who do not have a 
lawful immigration status, except where expressly proscribed in the 
INA.
    \211\ See, e.g., INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2) (law 
enacted in 2008 following INS policy of using deferred action and 
other measures to forbear removing individuals who demonstrate 
eligibility for T or U nonimmigrant status).
---------------------------------------------------------------------------

    The Department has carefully considered, but respectfully disagrees 
with, the Texas II court's decision finding that it is unlawful to 
provide employment authorization to persons who receive deferred action 
under DACA.\212\ The Texas II court found that DACA recipients are not 
in the categories of noncitizens whom Congress specifically has 
authorized to be employed, nor in the categories of noncitizens for 
whom Congress has allowed DHS to provide discretionary employment 
authorization.\213\ The Department believes that the court's conclusion 
is inconsistent with the long history of Congress' recognition of the 
former INS's and DHS's practice of providing discretionary employment 
authorization to individuals granted deferred action both before and 
after IRCA, as described earlier in this section, and the best 
interpretation of the Secretary's broad authorities under INA sec. 
103(a)(3), 8 U.S.C. 1103(a)(3), and INA sec. 274A(h)(3), 8 U.S.C. 
1324a(h)(3), which indicates that with respect to employment, an 
``unauthorized alien'' may be eligible and authorized to work either by 
the INA or ``by the Attorney General,'' now the Secretary. Nothing in 
INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3), indicates that there must be 
some underlying statute that separately provides the Secretary with 
discretion to authorize employment for a given category of noncitizens 
before the Secretary may exercise the discretion that is provided 
directly to the Secretary through INA sec. 274A(h)(3), 8 U.S.C. 
1324a(h)(3).\214\ In addition to individuals granted deferred action, 
DHS notes that DHS, and the Department of Justice (DOJ) before it, long 
has authorized employment for many categories of noncitizens for whom 
no additional statute expressly provides for employment 
authorization.\215\ Although these categories of noncitizens whom the 
Attorney General and later the Secretary have authorized for employment 
eligibility have been placed into regulations at various times, many of 
them were in the 1981 codification of the former INS employment 
authorization rules, while others were added later.\216\ The regulatory 
employment authorization categories have continued to exist to this 
day. Were DHS to adopt the interpretation of the Texas II court, many 
of these other employment authorization categories that also rely on 
the Secretary's broad authorities under INA secs. 103(a)(3) and 
274a(h)(3) might be called into question. DHS respectfully declines to 
adopt such a restrictive interpretation. In noting that DACA also 
applies to individuals in removal proceedings, the Texas II court 
interpreted INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), as making ``aliens 
not lawfully admitted for permanent residency with pending removal 
proceedings . . . ineligible for work authorization.'' \217\ But the 
last clause of INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), recognizes such 
an individual may have employment authorization even if they have not 
been afforded lawful permanent resident status:
---------------------------------------------------------------------------

    \212\ See Texas II July 16, 2021 memorandum and order at 76-77 
(granting summary judgment to plaintiff States and enjoining 
administration and implementation of DACA, but staying injunction 
with respect to DACA renewal requestors). See also Section III.B 
above.
    \213\ Texas II July 16, 2021 memorandum and order at 54-55.
    \214\ The Texas II court relied heavily on the opinion of the 
U.S. Fifth Circuit Court of Appeals decision in Texas I, which was 
based in part on that court's views that INA sec. 274A(h)(3), 8 
U.S.C. 1324a(h)(3), would not support DAPA and its attendant 
employment authorization. See Texas. v. United States, 809 F.3d 134, 
179-86 (5th Cir. 2015), aff'd by equally divided court, United 
States v. Texas, 136 S. Ct. 2271 (2016) (Texas I). The Department 
has considered the Fifth Circuit's opinion, and for the reasons 
stated in this section, the Department respectfully disagrees with 
this single appellate court. In particular, the Fifth Circuit's view 
that INA sec. 274A(h)(3) was a miscellaneous definitional provision 
(i.e., a provision that could not plausibly grant DHS the authority 
to grant work authorization) is contradicted by the statutory 
context recited above. That definition was added as part of the IRCA 
reforms (i.e., reforms to make it unlawful to knowingly employ 
unauthorized aliens). In that context, the definition of 
``unauthorized alien'' is an essential feature on which Congress 
acted with intentionality.
    \215\ See, e.g., 8 CFR 274a.12(a)(11) (noncitizens provided DED 
pursuant to a presidential directive); 8 CFR 274a.12(c)(9) (certain 
pending applicants for adjustment of status); 8 CFR 274a.12(c)(1) 
(foreign national spouses or unmarried dependent children of foreign 
government officials present on A-1, A-2, G-1, G-3, or G-4 visas); 8 
CFR 274a.12(c)(3)(i)(B) (nonimmigrant students present on an F-1 
visa seeking Optional Practical Training); 8 CFR 274a.12(c)(10) 
(noncitizens provided suspension of deportation/Cancellation of 
Removal (including NACARA)); 8 CFR 274a.12(c)(11) (noncitizens 
paroled in the public interest); 8 CFR 274a.12(c)(16) (foreign 
nationals who have filed ``application[s] for creation of record'' 
of lawful admission for permanent residence); 8 CFR 274a.12(c)(21) 
(S nonimmigrants who assist law enforcement in prosecuting certain 
crimes); and 8 CFR 274a.12(c)(26) (certain H-4 nonimmigrant spouses 
of H-1B nonimmigrants). This is a nonexhaustive list only.
    \216\ See 46 FR 15079 (May 5, 1981) (final rule codifying 
categories of employment-authorized noncitizens in former 8 CFR part 
109, later moved, as amended, to 8 CFR 274a.12).
    \217\ Texas II July 16, 2021 memorandum and order at 55 
(emphasis in original).

    [The Secretary] . . . may not provide the alien with work 
authorization (including an ``employment authorized'' endorsement or 
other appropriate work permit), unless the alien is lawfully 
admitted for permanent residence or otherwise would (without regard 
to removal proceedings) be provided such authorization. (Emphasis 
---------------------------------------------------------------------------
added)

    The Department interprets the last clause of INA sec. 236(a)(3), 8 
U.S.C. 1226(a)(3), to represent a further recognition by Congress that 
noncitizens who are not permanent residents also can be authorized to 
work by other means, and that there must necessarily be categories of 
noncitizens other than lawful permanent residents who can obtain work 
authorization under these circumstances. Moreover, the Texas II court's 
reading would render superfluous provisions of the INA that explicitly 
bar employment authorization for certain categories of noncitizens in 
the United States without lawful status.\218\ Read as a whole, the INA 
most naturally would permit work authorization for those individuals 
covered either by statute specifically or as authorized by the 
Secretary pursuant to INA sec. 103(a)(3), 8 U.S.C.

[[Page 53760]]

1103(a)(3), and INA sec. 274A(h)(3), 8 U.S.C 1324a(h)(3).
---------------------------------------------------------------------------

    \218\ See, e.g., 8 U.S.C. 1226(a)(3) (barring employment 
authorization for noncitizens released on bond or recognizance 
during removal proceedings); 8 U.S.C. 1231(a)(7) (barring employment 
authorization for noncitizens released on orders of supervision 
after final order of removal).
---------------------------------------------------------------------------

    To be clear, however, under the proposed rule DACA recipients would 
not ``have the `right''' to employment authorization.\219\ While DACA 
recipients are eligible to request employment authorization, they never 
have been in the category of individuals who are automatically 
authorized to work ``incident to status,'' such as asylees, TPS 
beneficiaries, and other groups identified in 8 CFR 274a.12(a) whose 
employment authorization is a component of their immigration status. 
DACA recipients have no lawful immigration status and have always been 
within the categories of noncitizens who apply for a discretionary 
grant of employment authorization under 8 CFR 274a.12(c). The Texas II 
court also was influenced by the fact that DACA requestors thus far 
have been required to apply for employment authorization when they seek 
DACA.\220\ However, the Department is proposing to change that practice 
in this rule by no longer making it compulsory for a DACA requestor to 
apply for employment authorization. Under the proposed rule, an 
application for employment authorization would be optional. A DACA 
recipient would need to apply for and be granted employment 
authorization in order to work lawfully.
---------------------------------------------------------------------------

    \219\ Texas II July 16, 2021 memorandum and order at 38.
    \220\ See id. at 55-56.
---------------------------------------------------------------------------

    Although DHS believes that the INA directly authorizes the 
Secretary to provide employment authorization to persons who receive 
deferred action under DACA, to the extent there is any ambiguity, 
humanitarian concerns, reliance interests, economic concerns, and other 
relevant policy concerns strongly weigh in favor of DHS continuing to 
make discretionary employment authorization available for individual 
DACA recipients who establish economic necessity. Existing DACA 
recipients have relied on deferred action and employment authorization 
for years, and planned their lives--and, in many cases, their families' 
lives--around them. Without work authorization, many DACA recipients 
would have no lawful way to support themselves and their families and 
contribute fully to society and the economy. At the same time, to make 
DACA recipients ineligible for work authorization would squander the 
important economic and social contributions that many DACA recipients 
are making as a result of their authorization to work (including by 
working in frontline jobs during the ongoing coronavirus 
emergency).\221\ In addition, it would increase the likelihood that 
they no longer would be able to support their families, including U.S. 
citizen children, or perhaps that they might perceive no alternative 
but to work without authorization. This proposed rule therefore seeks 
to serve an assortment of important public policy goals by providing 
discretionary employment authorization to DACA recipients who 
demonstrate an economic necessity to work, and by allowing employers to 
lawfully hire DACA recipients. The ability to work lawfully provides 
numerous benefits to DACA recipients, their families, and their 
communities, and contributes to the collection of income tax and other 
payroll taxes at the Federal, State, and local levels, where applicable 
under law.\222\
---------------------------------------------------------------------------

    \221\ Svajlenka (2020).
    \222\ See Cong. Budget Office, ``Budgetary Effects of 
Immigration-Related Provisions of the House-Passed Version of H.R. 
240, An Act Making Appropriations for the Department of Homeland 
Security'' (Jan. 29, 2015) (estimating that blocking deferral of 
removal for certain noncitizens would cost the Federal Government 
$7.5 billion from 2015 to 2025), https://www.cbo.gov/publication/49920; Wong (2020).
---------------------------------------------------------------------------

E. Lawful Presence

    Various Federal statutes draw distinctions between noncitizens who 
are ``lawfully present'' in the United States and those who are not. 
The INA does not contain a general definition of ``lawfully present'' 
or related statutory terms for purposes of Federal immigration 
law.\223\ The statutory provisions that use ``lawfully present'' and 
related terms (e.g., ``unlawfully present'') likewise leave those terms 
undefined, and they do not expressly address whether and in what sense 
individuals subject to a period of deferred action are to be considered 
``lawfully present'' or ``unlawfully present'' in the United States 
during that period for purposes of various statutes.
---------------------------------------------------------------------------

    \223\ See 8 U.S.C. 1101.
---------------------------------------------------------------------------

    Eligibility for certain Federal benefits depends in part on whether 
a noncitizen is ``lawfully present'' in the United States. The Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 
\224\ generally provides that noncitizens who are not ``qualified 
aliens'' are not eligible for ``federal public benefits.'' \225\ 
However, PRWORA includes an exception to this ineligibility rule for 
retirement and disability benefits under title II of the Social 
Security Act for ``an alien who is lawfully present in the United 
States as determined by the Attorney General'' (now the 
Secretary).\226\ The Balanced Budget Act of 1997 \227\ amended PRWORA 
to add similar exceptions for Medicare and railroad retirement and 
disability benefits.\228\
---------------------------------------------------------------------------

    \224\ Public Law 104-193, 110 Stat. 2105.
    \225\ 8 U.S.C. 1611(a).
    \226\ 8 U.S.C. 1611(b)(2); see also 8 U.S.C. 1641(b) (defining 
``qualified alien'').
    \227\ Public Law 105-33, 111 Stat. 251.
    \228\ 8 U.S.C. 1611(b)(3) and (4).
---------------------------------------------------------------------------

    PRWORA also limits the provision of ``state and local public 
benefits'' to noncitizens who are ``qualified'' noncitizens, 
nonimmigrants, or parolees, but it provides that States may 
affirmatively enact legislation making noncitizens ``who [are] not 
lawfully present in the United States'' eligible for such 
benefits.\229\ Moreover, IIRIRA limits the availability of residency-
based State post-secondary education benefits for individuals who are 
``not lawfully present.'' \230\
---------------------------------------------------------------------------

    \229\ 8 U.S.C. 1621(d).
    \230\ 8 U.S.C. 1623(a).
---------------------------------------------------------------------------

    In addition to making persons who are ``lawfully present'' 
potentially eligible for certain Federal public benefits for which they 
otherwise would be disqualified, and restricting eligibility for 
certain benefits under State law of persons who are ``not lawfully 
present,'' Congress has incorporated a formulation of the term ``lawful 
presence'' into the rules governing admissibility.\231\ IIRIRA provides 
that a noncitizen who departs the United States after having been 
``unlawfully present'' for specified periods is not eligible for 
admission for 3 or 10 years after the date of departure, depending on 
the duration of unlawful presence.\232\ IIRIRA further provides that, 
with certain exceptions, an individual who has been ``unlawfully 
present'' for more than 1 year and who enters or attempts to re-enter 
the United States without being admitted is inadmissible.\233\
---------------------------------------------------------------------------

    \231\ See generally 8 U.S.C. 1182.
    \232\ 8 U.S.C. 1182(a)(9)(B)(i).
    \233\ 8 U.S.C. 1182(a)(9)(C).
---------------------------------------------------------------------------

    ``For purposes of'' the 3-year and 10-year inadmissibility bars, 
IIRIRA provides that an individual is ``deemed to be unlawfully 
present'' if they are ``present in the United States after the 
expiration of the period of stay authorized by the Attorney General'' 
or are ``present in the United States without being admitted or 
paroled.'' \234\ But apart from that provision, which is limited by its 
terms to that paragraph of the statute, Congress has not attempted to 
prescribe the circumstances in which persons are or should be deemed to 
be ``lawfully present'' or ``unlawfully

[[Page 53761]]

present.'' \235\ Instead, Congress has left the definition of those 
terms under Federal laws to the executive branch. In some instances, it 
has done so explicitly, such as with respect to Social Security, 
Medicare, and railroad retirement benefits.\236\ In others, it has done 
so implicitly, such as with respect to restrictions on State and local 
public benefits and residency-based State post-secondary education 
benefits, by using the terms without defining them or addressing their 
applicability to particular circumstances.\237\
---------------------------------------------------------------------------

    \234\ 8 U.S.C. 1182(a)(9)(B)(ii).
    \235\ On this question DHS disagrees with the court in Texas II, 
which cited a number of statutory provisions in finding that ``the 
INA specifies several particular groups of aliens for whom lawful 
presence is available.'' Texas II July 16, 2021 memorandum and order 
at 53. However, these provisions confer lawful status, an entirely 
separate concept to lawful presence, and one that DHS agrees it does 
not have the authority to grant in this proposed rule.
    \236\ See, e.g., 8 U.S.C. 1611(b)(2) through (4) (``lawfully 
present in the United States as determined by the Attorney 
General''); 42 U.S.C. 402(y) (same).
    \237\ See, e.g., 8 U.S.C. 1621(d) and 1623(a).
---------------------------------------------------------------------------

    The executive branch has not previously promulgated an overarching 
and unified definition of ``lawfully present'' and related terms for 
the various Federal laws that use those terms. On several occasions, 
however, the executive branch has addressed whether persons who are 
subject to a period of deferred action should be deemed to be 
``lawfully present'' or ``unlawfully present'' not generally or in the 
abstract, but for the specific purposes of certain of those provisions. 
These phrases are terms of art, with specialized meanings for those 
purposes, as explained in more detail below.
    Shortly after Congress enacted PRWORA in 1996, and prior to the 
enactment of IIRIRA and the Balanced Budget Act of 1997, the Attorney 
General exercised her express authority under 8 U.S.C. 1611(b)(2) to 
define ``lawfully present'' for purposes of eligibility for Social 
Security benefits. The Attorney General issued an interim regulation 
that defines the term to include, inter alia, ``[a]liens currently in 
deferred action status.'' \238\ Following the Attorney General's 
administrative interpretation of the term ``lawfully present'' to 
include deferred action recipients for purposes of Social Security 
eligibility, Congress added the provisions in 8 U.S.C. 1611(b)(3) and 
(4) that permit the Attorney General to exercise the same authority 
with respect to eligibility for Medicare and railroad retirement 
benefits.
---------------------------------------------------------------------------

    \238\ 61 FR 47039 (Sept. 6, 1996) (codified as transferred at 8 
CFR 1.3(a)(4)(vi)); see also 76 FR 53778 (Aug. 29, 2011) 
(transferring the rule from 8 CFR 103.12 to 8 CFR 1.3).
---------------------------------------------------------------------------

    Subsequent administrative interpretations have taken a similar 
approach. The Government has interpreted ``lawfully present'' to 
include persons with a period of deferred action for purposes of other 
Federal programs.\239\ In addition, the Government has interpreted the 
deeming provision in 8 U.S.C. 1182(a)(9)(B)(ii) to mean that persons 
should not be deemed ``unlawfully present'' during ``period[s] of stay 
authorized by the Attorney General,'' including periods of deferred 
action.\240\
---------------------------------------------------------------------------

    \239\ See, e.g., 42 CFR 417.422(h) (eligibility for Medicare 
health maintenance organizations and competitive medical plans).
    \240\ See Memorandum to Field Leadership from Donald Neufeld, 
Acting Associate Director, USCIS Office of Domestic Operations, 
Consolidation of Guidance Concerning Unlawful Presence for Purposes 
of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 42 
(May 6, 2009); Williams Memorandum; USCIS Adjudicator's Field Manual 
ch. 40.9.2(b)(3)(J).
---------------------------------------------------------------------------

    Although the Federal Government has not adopted a comprehensive 
definition of ``lawfully present'' and related statutory terms, and 
although the implementation of those terms will depend on the specific 
statutory context in which they are used, the positions discussed above 
reflect certain more general views about the meaning of ``lawfully 
present.''
    As a general matter, DHS understands the phrase ``lawfully 
present'' as a term of art--not in a broad sense, or to suggest that 
presence is in all respects ``lawful,'' but to encompass situations in 
which the executive branch tolerates an individual being present in the 
United States at a certain, limited time or for a particular, well-
defined period. The term is reasonably understood to include someone 
who is (under the law as enacted by Congress) subject to removal, and 
whose immigration status affords no protection from removal (again, 
under the law as enacted by Congress), but whose temporary presence in 
the United States the Government has chosen to tolerate, including for 
reasons of resource allocation, administrability, humanitarian concern, 
agency convenience, and other factors.\241\ In the case of persons with 
deferred action, because DHS has made a non-binding decision to forbear 
from taking enforcement action against them (for a limited period), 
those individuals' presence has been tolerated by the officials 
executing the immigration laws.
---------------------------------------------------------------------------

    \241\ See AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------

    ``Lawful presence'' is a ``distinct concept'' from the much broader 
concept of ``lawful status,'' which refers to an immigration status 
granted pursuant to a provision of the INA, such as lawful permanent 
residence, a nonimmigrant student status, or asylum.\242\ Lawful status 
can be conferred only pursuant to statute because it provides a legally 
enforceable right to remain in the United States. Lawful presence, as 
understood and implemented by DHS, confers no such right. As noted by 
the court in Texas II, Congress has defined who is and is not entitled 
to lawful immigration status in the detailed provisions of the INA. DHS 
agrees that it is bound by those provisions and, except to the extent 
the INA itself includes a discretionary element in certain 
adjudications, does not have the ability to confer or deny lawful 
status beyond the terms laid out by Congress.\243\ By contrast, 
according persons a period of deferred action and regarding them as 
``lawfully present'' confers no substantive defense to removal or 
independent pathway to citizenship, and deferred action may be revoked 
at any time.
---------------------------------------------------------------------------

    \242\ Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013); see 
also 8 CFR 245.1(d)(1) (defining ``lawful immigration status'' as 
any one of several types of immigration status granted pursuant to 
the INA). See also Texas II July 16, 2021 memorandum and order at 
53.
    \243\ As noted above, however, the REAL ID Act of 2005 provides 
that deferred action serves as acceptable evidence of ``lawful 
status'' for purposes of eligibility for a REAL ID-compliant 
driver's license or identification card. See 49 U.S.C. 30301 note. 
In the regulations implementing the REAL ID Act, DHS clarified its 
view that this definition does not affect other definitions or 
requirements that may be contained in the INA or other laws. See 6 
CFR 37.3.
---------------------------------------------------------------------------

    After careful consideration and with respect, DHS believes that the 
Texas II court erred in conflating the two concepts of ``lawful 
presence'' and ``lawful status.'' As the U.S. Court of Appeals for the 
Fifth Circuit put it, ``lawful status'' implies a ``right [to be in the 
United States] protected by law'' while lawful presence ``describes an 
exercise of discretion by a public official.'' \244\ The statutory 
concept of lawful presence covers those individuals who may not have 
lawful status but whose presence the Federal Government has elected to 
tolerate. It is merely a recognition of the fact that DHS has decided 
to tolerate the presence of a noncitizen in the United States 
temporarily, under humanitarian or other particular circumstances, and 
that the individual is known to immigration officials and will not be 
removed for the time being.
---------------------------------------------------------------------------

    \244\ See Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013).
---------------------------------------------------------------------------

    The Napolitano Memorandum does not address lawful presence and does

[[Page 53762]]

not itself prescribe how DACA recipients are to be treated in the 
various arenas in which ``lawful presence'' is germane. However, DHS 
has treated persons who receive a period of deferred action under DACA 
like other deferred action recipients for these purposes. Thus, for 
example, DACA recipients are included in the Department's definition of 
``lawfully present'' at 8 CFR 1.3(a)(4)(vi) for purposes of eligibility 
for Social Security benefits under 8 U.S.C. 1611(b)(2), and DHS has not 
regarded their time in deferred action as ``unlawful presence'' for 
purposes of inadmissibility determinations.\245\
---------------------------------------------------------------------------

    \245\ See Consideration of Deferred Action for Childhood 
Arrivals: Frequently Asked Questions, Questions 1 and 5, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions (hereinafter DACA 
FAQs).
---------------------------------------------------------------------------

    As noted above, the executive branch has not previously proposed a 
singular definition of ``lawfully present'' that applies across the 
board to all statutes that include that and related terms. DHS 
recognizes that the statutory terms ``lawfully present'' and 
``unlawfully present,'' and the distinction between ``lawful presence'' 
and ``lawful status,'' have caused significant confusion in debate 
about and litigation over the legality of the 2012 DACA policy and 
related DAPA policy. Questions have been raised about whether it is 
appropriate for persons with deferred action under DACA to be treated 
as ``lawfully present'' for purposes of statutes governing eligibility 
for Federal benefits.\246\
---------------------------------------------------------------------------

    \246\ Cf. Texas v. United States, 809 F.3d 134, 184 (5th Cir. 
2015) (Texas I) (holding that, for purposes of DAPA, ``the INA 
flatly does not permit the reclassification of millions of illegal 
aliens as lawfully present and thereby make them newly eligible for 
a host of federal and state benefits''), aff'd by equally divided 
Court, 136 S. Ct. 2271 (2016).
---------------------------------------------------------------------------

    For the reasons discussed above, DHS believes that it is authorized 
to deem DACA recipients and other persons subject to deferred action to 
be ``lawfully present,'' as defined here, under these circumstances for 
the particular purposes in 8 U.S.C. 1611(b)(2) and 1182(a)(9). The 
proposed rule addresses two specific instances in which the term is 
used: eligibility for certain public benefits under 8 U.S.C. 
1611(b)(2), and the accrual of ``unlawful presence'' for purposes of 
admissibility under 8 U.S.C. 1182(a)(9)(B). Section 1611(b)(2) 
expressly refers to the Secretary's determination of who is lawfully 
present for the specific purpose of that provision, and longstanding 
agency regulations and policies treat persons with deferred action as 
lawfully present for purposes of both provisions. In the intervening 25 
years since the Attorney General issued her rule, Congress has not 
offered any indication to question or countermand that determination 
that the specified categories of noncitizens are eligible for Social 
Security benefits, and in fact, Congress only has enacted other similar 
provisions indicating that the Attorney General's determinations as to 
lawful presence for certain individuals make those individuals eligible 
for public benefits.\247\
---------------------------------------------------------------------------

    \247\ See 8 U.S.C. 1611(b)(3) and (4).
---------------------------------------------------------------------------

    The provisions of the proposed rule relating to lawful presence 
would not extend the benefits of lawful status to DACA recipients. From 
the beginning of the DACA policy (based on longstanding policies and 
regulations that far predate DACA), DHS has made clear that deferred 
action cannot and does not convey lawful status and, therefore, does 
not contradict the boundaries on lawful status that Congress has 
enacted via the INA. As then-Secretary Jeh Johnson said, ``[d]eferred 
action does not confer any form of legal status in this country, much 
less citizenship; it simply means that, for a specified period of time, 
an individual is permitted to be lawfully present in the United 
States.'' \248\ Indeed, being treated as ``lawfully present'' or not 
``unlawfully present'' for purposes of one or more of these statutes 
does not confer on noncitizens whose presence Congress has deemed 
unlawful the right to remain lawfully in the United States. They remain 
subject to removal proceedings at the Government's discretion, and they 
gain no defense to removal.
---------------------------------------------------------------------------

    \248\ 2014 DAPA Memorandum.
---------------------------------------------------------------------------

F. Fees

    The INA authorizes DHS to establish and collect fees for 
adjudication and naturalization services to ``ensure recovery of the 
full costs of providing all such services, including the costs of 
similar services provided without charge to asylum applicants or other 
immigrants.'' \249\ Through the collection of fees established under 
that authority, USCIS is funded primarily by immigration and 
naturalization fees charged to applicants, petitioners, and other 
requestors.\250\ Fees collected from individuals and entities filing 
immigration requests are deposited into the Immigration Examinations 
Fee Account and used to fund the cost of providing immigration 
requests.\251\ Consistent with that authority and USCIS' reliance on 
fees for its funding, and as discussed in greater detail below, this 
rule would amend DHS regulations to require a fee for Form I-821D, 
Consideration of Deferred Action for Childhood Arrivals.
---------------------------------------------------------------------------

    \249\ INA sec. 286(m), 8 U.S.C. 1356(m).
    \250\ See INA sec. 286(m) and (n), 8 U.S.C. 1356(m) and (n); 8 
CFR 103.7(b)(1)(i) (Oct. 1, 2020) (current USCIS fees). On August 3, 
2020, DHS published a final rule, U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration 
Benefit Request Requirements (hereinafter 2020 Fee Schedule Final 
Rule), which was to be effective October 2, 2020. 85 FR 46788 (Aug. 
3, 2020). The 2020 Fee Schedule Final Rule, among other things, 
established a new USCIS fee schedule and effectively transferred the 
USCIS fee schedule from 8 CFR 103.7(b) to the new 8 CFR part 106 at 
8 CFR 106.2, Fees. However, before the 2020 Fee Schedule Final Rule 
took effect it was enjoined. See Immigr. Legal Resource Ctr. v. 
Wolf, 491 F. Supp. 3d 520 (N.D. Cal. Sept. 29, 2020); Nw. Immigrant 
Rts. Proj. v. USCIS, 496 F. Supp. 3d 21 (D.D.C. Oct. 8, 2020). At 
this time, DHS is complying with the terms of these orders and is 
not enforcing the regulatory changes set out in the 2020 Fee 
Schedule Final Rule, including the specific fees found in 8 CFR 
106.2. 86 FR 7493 (Jan. 29, 2021). Nothing in this proposed rule 
proposes any change to that ongoing compliance.
    \251\ See 81 FR 73292, 73292 (Oct. 24, 2016).
---------------------------------------------------------------------------

G. Advance Parole

    The INA authorizes the Attorney General, now the Secretary, ``in 
his discretion [to] parole into the United States temporarily under 
such conditions as he may prescribe only on a case-by-case basis for 
urgent humanitarian reasons or significant public benefit any alien 
applying for admission to the United States, but such parole of such 
alien shall not be regarded as an admission of the alien.'' \252\ On a 
case-by-case basis, and under appropriate circumstances consistent with 
the statute, DHS exercises its discretion to authorize advance parole, 
so that a noncitizen may leave the United States and then be paroled 
back in. The access of DACA recipients to ``advance parole'' under 8 
CFR 212.5(f) raises questions of both law and policy that were 
discussed by the Texas II district court in its July 16, 2021 
memorandum and order. DHS emphasizes that the same statutory standard, 
``for urgent humanitarian reasons or significant public benefit,'' 
applies to all noncitizens, including DACA recipients, and that this 
statutory standard does not depend on whether an individual is a DACA 
recipient. DHS reiterates that under the proposed rule, it would 
continue its adherence to that standard.
---------------------------------------------------------------------------

    \252\ 8 U.S.C. 1182(d)(5)(A); see also 8 U.S.C. 1103(a), 8 CFR 
212.5.
---------------------------------------------------------------------------

    Likewise, the INA lays out a comprehensive scheme for eligibility 
for adjustment of status to that of a lawful permanent resident. There 
are several relevant statutory provisions and requirements, including 
those laid out

[[Page 53763]]

at 8 U.S.C. 1255(a), which requires, among other things, that 
applicants for adjustment of status be eligible for an immigrant visa 
and be admissible under 8 U.S.C. 1182,\253\ and that applicants were 
``inspected and admitted or paroled'' into the United States. The 
parole authority at 8 U.S.C. 1182(d)(5), when read together with the 
adjustment of status provisions at 8 U.S.C. 1255(a), creates a 
statutory pathway to adjustment of status for individuals who meet all 
the other adjustment criteria, including eligibility for an immigrant 
visa, but entered without inspection. Congress clearly intended that 
parole be available to a subset of noncitizens, and that such parole 
would affect eligibility for adjustment of status in these limited 
ways. These effects of parole are entirely separate from DACA, and do 
not depend on any executive actions not explicitly authorized by 
statute. So long as DHS acts within the limits on its parole authority 
in 8 U.S.C. 1182(d)(5), which as discussed above DHS believes the DACA-
based advance parole guidance does, there is no conflict with Congress' 
expressed intent for eligibility for adjustment of status.
---------------------------------------------------------------------------

    \253\ Parole also satisfies the admissibility requirement at 8 
U.S.C. 1182(a)(6)(A)(i). Additionally, many of the inadmissibility 
provisions at 8 U.S.C. 1182 are waivable, including 8 U.S.C. 
1182(a)(9)(B). See 8 U.S.C. 1182(a)(9)(B)(v).
---------------------------------------------------------------------------

H. Further Analysis, Alternatives, and Call for Comments

    As noted by the Texas II district court in its July 16, 2021 
memorandum and order, the above features of the proposed rule--
forbearance from enforcement action, employment authorization, and 
lawful presence--are amenable to further analysis. DHS takes seriously 
the district court's suggestion that it may enact a forbearance-only 
policy, and that features of the DACA policy may be modified through 
the rulemaking process. DHS anticipates that presenting the full DACA 
policy in the notice-and-comment process, and giving full consideration 
to public comments, will enable it to determine whether such an 
alternative (or other alternative policies) is warranted.
    Further analysis of these features of the proposed rule, including 
an assessment of regulatory alternatives, also can be found in Section 
V. Specifically--
     Section V.A.4 contains estimates of wages earned and 
certain tax transfers by DACA recipients;
     Section V.A.4.d discusses the proposed rule's potential 
labor market impacts;
     Section V.A.4.f discusses a range of reliance interests 
and certain potential effects of the DACA policy identified by the 
Texas II district court (such as certain fiscal effects and effects on 
migration flows); and
     Section V.A.4.h discusses regulatory alternatives, 
including the alternatives of (1) implementing a policy of forbearance 
without employment authorization and lawful presence; and (2) 
implementing a policy of forbearance with employment authorization, but 
without lawful presence.
    With respect to the alternatives relating to employment 
authorization and lawful presence in particular, DHS welcomes comments 
on whether there is any basis or reason for treating deferred action 
under DACA differently from other instances of deferred action in these 
respects, as well as any suggestions for alternatives. And with respect 
to lawful presence in particular, DHS invites comments on whether 
persons who receive deferred action pursuant to the proposed rule 
should be regarded as ``lawfully present'' or ``unlawfully present'' 
for purposes of eligibility for specified Federal public benefits under 
8 U.S.C. 1611(b) and admissibility under 8 U.S.C. 1182(a)(9), 
respectively.

IV. Provisions of Proposed Rule

    In this section, DHS describes the DACA policy contained in the 
proposed rule. DHS proposes to amend 8 CFR part 236 by adding new 
subpart C, Deferred Action for Childhood Arrivals. Proposed 8 CFR 
236.21 through 236.23 establish the applicability, guidelines, and 
procedures for requests for DACA. Proposed 8 CFR 236.24 and 236.25 
incorporate provisions on severability and no private rights. Nothing 
in this proposed rule diminishes DHS's authority to issue deferred 
action policies through subregulatory or other means, or otherwise 
exercise its authorities to administer and enforce the immigration laws 
of the United States.
    DHS welcomes comments on all aspects of the proposed policy, 
including potential changes to maximize the rule's net benefits and 
provide necessary clarity to DHS officials and the public. For 
instance, DHS welcomes comment on whether specific provisions of the 
proposed rule should be changed; whether additional aspects of the 
existing DACA FAQs should be incorporated into the final rule; and 
whether any other aspect of the proposed rule could be improved 
materially.

A. Section 106.2--Fees

    Under current practice, DACA requestors must file a Form I-765, 
Application for Employment Authorization, and the Form I-765WS, 
Employment Authorization Worksheet, with the filing of their Form I-
821D, Consideration of Deferred Action for Childhood Arrivals. The 
current total fee for DACA requests is $495, which reflects the $410 
fee for Form I-765 and the $85 biometrics services fee; the total fee 
is not waivable.\254\ This proposed rule would modify existing practice 
for requesting DACA by making the request for employment authorization 
optional.\255\ Although USCIS did not provide a policy rationale for 
its 2012 decision to require Form I-765 for all DACA requestors, DHS 
believes that, overall, this policy change will benefit DACA 
requestors. It recognizes that some DACA requestors may not need 
employment authorization or the accompanying EAD and should be given 
the option either to apply for DACA alone or to apply for both DACA and 
employment authorization. In addition, this change allows DACA 
requestors who so desire to learn first whether they are approved for 
DACA before they file the Form I-765 and pay the fee for employment 
authorization. While providing the choice to delay filing the Form I-
765 means the EAD arrives later than the DACA approval notice, it 
potentially could provide some cost savings to those requestors who are 
found ineligible for DACA and previously would have been required to 
pay the filing fee for the Form I-765.
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    \254\ See USCIS, ``I-821D, Consideration of Deferred Action for 
Childhood Arrivals,'' https://www.uscis.gov/i-821d.
    \255\ See proposed 8 CFR 106.2(a)(38) and 236.23(a). This rule 
proposes to implement a fee for the Form I-821D, Consideration of 
Deferred Action for Childhood Arrivals. See proposed 8 CFR 
106.2(a)(38). This proposed amendment will be made in a section of 
the regulation DHS is not currently implementing. As noted above, 
through this rulemaking process, DHS is proposing to codify a new 
fee where one did not exist before. See 8 CFR 106.2(a)(38). The fee 
for the Form I-821D is not germane to either lawsuit, it was not 
included in the enjoined 2020 Fee Schedule Final Rule, and the basis 
for the fee is explained in this proposed rule. If DHS ultimately 
codifies the new Form I-821D fee as part of this rulemaking, 8 CFR 
106.2(a)(38) would provide the fee for the Form I-821D independent 
of other portions of 8 CFR part 106 that DHS is not enforcing at 
this time.
---------------------------------------------------------------------------

    To cover some of the costs associated with reviewing DACA requests 
that USCIS will continue to incur in the absence of an I-765 filing, 
DHS proposes to charge a fee of $85 for Form I-821D and remove the 
discrete biometrics fee from the fees required to file Form I-765 under 
the (c)(33) eligibility category. This rule does not propose any 
changes to the fees for Form I-765; therefore, the DHS proposal of an 
$85 fee for the Form I-821D request for DACA means that the

[[Page 53764]]

current total cost to DACA requestors who also file the optional Form 
I-765 remains at $495 ($85 for Form I-821D plus $410 for Form I-765) as 
of the time of this proposed rule.\256\ Individuals who choose to 
request DACA by filing Form I-821D but do not file Form I-765 would pay 
$85, which is $410 less than under the current fee structure for DACA. 
Should the fee for Form I-765 for employment authorization change in a 
separate DHS fee rulemaking, then DACA requestors who choose to file 
that form would pay the same filing fee for the Form I-765 as all other 
applicants for employment authorization who are required to pay the 
fee. DHS proposes no changes to the existing DACA fee exemptions, which 
would continue to apply to both the proposed Form I-821D fee and the 
Form I-765 fee if the requestor also seeks employment 
authorization.\257\
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    \256\ The current fee for the Form I-765 is based upon the USCIS 
fee schedule that USCIS currently is following. 8 CFR 
103.7(b)(1)(i)(II) (Oct. 1, 2020). Any future fees, including the 
fee for the Form I-821D or the Form I-765, may be affected by 
adjustments to the USCIS fee schedule.
    \257\ USCIS data suggest there is a negligible workload 
difference between adjudicating Form I-821D alone and the combined 
Forms I-821D/I-765 DACA adjudicative action. This is because the 
primary adjudicative decision is issued on Form I-821D. The 
adjudicative decision is conferred to the EAD, as the Form I-765 
will be denied if the Form I-821D is denied, and approved if the 
Form I-821D is approved and the requestor demonstrates an economic 
need to work. Because current policy requires that these forms be 
filed together, the Form I-765 DACA action is adjudicated in tandem 
with Form I-821D. Workload data suggest that the difference equals 
the I-765 DACA decision and/or issuance of an EAD card upon benefit 
adjudication.
---------------------------------------------------------------------------

    Under this proposed model, a DACA requestor or recipient who 
believes they can demonstrate economic need on the Form I-765WS, 
Employment Authorization Worksheet, may apply to USCIS for employment 
authorization on the Form I-765, Application for Employment 
Authorization, with the required fee.\258\ Under the current USCIS fee 
schedule, the fee for Form I-765 is $410. This rule proposes to modify 
the existing total fee for DACA with the following new fee structure:
---------------------------------------------------------------------------

    \258\ See proposed 8 CFR 236.21(c)(2).
---------------------------------------------------------------------------

     Required Form I-821D, Consideration of Deferred Action for 
Childhood Arrivals, $85 fee
     Optional Form I-765, Application for Employment 
Authorization, $410 fee (current fee as of date of publication)
[GRAPHIC] [TIFF OMITTED] TP28SE21.018

    USCIS is funded primarily by immigration and naturalization benefit 
request fees charged to applicants and petitioners. DHS believes that 
the proposed I-821D fee of $85 balances the need to recover some of the 
costs of reviewing DACA requests filed without Form I-765, including 
the costs of biometric services, with the humanitarian needs of the 
DACA-eligible population. Many DACA recipients are young adults who are 
vulnerable because of their lack of immigration status and may have 
little to no means to pay the fee for the request for deferred action. 
DHS therefore proposes to hold the fee for Form I-821D, Consideration 
of Deferred Action for Childhood Arrivals, below the estimated full 
cost of adjudication. DHS estimates that the full cost of adjudicating 
Form I-821D, including the cost of providing biometric services and 
indirect activities that support adjudication, is approximately $332, 
based on initial budget and volume projections for FY 2022 and FY 
2023.259 260 DHS proposes a fee of $85 for Form I-821D 
because it maintains the current total cost for DACA requestors who 
choose to file Form I-765, at its current fee level, to apply for 
employment authorization. Based on the estimated Form I-821D full cost 
of adjudication of approximately $332 and the proposed Form I-821D fee 
of $85, USCIS estimates that it would charge $247 ($332 minus $85) less 
than the full cost of adjudication for each Form I-821D filing. For 
budgetary purposes, at the time USCIS conducted its cost analysis for 
the proposed rule, the projected average number of Form I-821D filings 
was 379,500 for FY 2022 and FY 2023.\261\ This implies that USCIS would 
charge, on average, approximately $93,736,500 \262\ less than the 
estimated full cost of adjudication for Form I-821D annually in FY 2022 
and FY 2023.
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    \259\ Historically, USCIS excludes DACA volumes, costs, and 
revenues from its fee calculations. See 81 FR 73312. To estimate the 
projected full cost of adjudication for Form I-821D for the FY 2022/
FY 2023 biennial period, USCIS included projected DACA volumes, 
costs, and revenues, as well as a completion rate activity-driver, 
in its activity-based costing model. At its January 2021 meetings, 
the USCIS Volume Projection Committee forecasted an average Form I-
821D filing volume of 379,500 annually for FY 2022 and FY 2023. 
USCIS attributed the following activities to the adjudication of 
Form I-821D in its activity-based cost model: Intake; Inform the 
Public; Conduct TECS Check; Fraud Detection and Prevention; Perform 
Biometric Services; Make Determination; Management and Oversight; 
and Records Management. Based on the activity-based cost model, 
USCIS estimates that the full cost of adjudication for Form I-821D 
is approximately $332 for FY 2022 and FY 2023. Because the USCIS 
activity-based cost model relies on budget and volume projections, 
the estimated cost to adjudicate Form I-821D may change based on 
revisions to the budget or volume projections.
    \260\ OMB Circular A-25 defines ``full cost'' to mean the sum of 
direct and indirect costs that contribute to the output, including 
the costs of supporting services provided by other segments and 
entities. Available at https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf.
    \261\ This projection is used for budgetary planning purposes 
and is determined by USCIS' Volume Projection Committee (VPC). The 
quantitative and qualitative methodologies used by the VPC differ 
from the methodologies used in projecting future application volumes 
as part of the RIA for this proposed rule, which makes different 
volume projections based on the methodologies described therein. As 
noted below, USCIS welcomes input on the methodologies employed to 
estimate the size and nature of the population likely to be affected 
by this rule.
    \262\ Calculation: (Estimated annual average I-821D filing 
volume of 379,500) * (Estimated gap between adjudication cost and 
fee of $247) = $93,736,500.
---------------------------------------------------------------------------

    As the agency that administers this country's immigration system, 
USCIS has the expertise to assess on a case-by-case basis whether a 
DACA requestor has met the threshold criteria and warrants a favorable 
exercise of discretion in a uniform manner. Moreover, because USCIS 
operations are fee-funded, funds spent on DACA adjudications do not 
take any resources away from DHS's enforcement branches. Finally, DHS 
has an interest in encouraging eligible DACA requestors to come forward 
and apply for deferred action (aided by a low fee), because it allows 
DHS to proactively identify noncitizens who may be a low priority for 
removal should they be encountered by ICE or CBP in the field. For 
these reasons, DHS believes that USCIS' adjudication of DACA requests 
with the proposed $85 fee is reasonable.
    We invite public comments on how DHS should structure fees for the 
required Form I-821D, Consideration of Deferred Action for Childhood 
Arrivals, and the optional Form I-765,

[[Page 53765]]

Application for Employment Authorization.

B. Section 236.21--Applicability

    Paragraph (a) of proposed 8 CFR 236.21 makes clear that the 
proposed new subpart C would apply to requests for deferred action 
under the DACA policy only. Proposed subpart C would not apply to or 
govern any other request for or grant of deferred action or any other 
DHS deferred action policy. This provision is consistent with the 
exceptional circumstances giving rise to this rulemaking, as described 
above. This rulemaking is not intended to address issues that relate to 
deferred action more broadly and would not affect other deferred action 
policies and procedures.
    Proposed paragraph (b) provides that the provisions that govern 
benefit requests within 8 CFR part 103 would not apply to requests for 
DACA except as specifically provided in this proposed rule. DHS 
proposes to include this provision because, as discussed, a request for 
deferred action is a temporary forbearance from removal and is not a 
``benefit request'' as defined in 8 CFR 1.2. Benefit requests are 
subject to the provisions of 8 CFR part 103, which provides regulatory 
guidance on filings, evidence and processing, denials, appeals, 
precedent decisions, certifications, and motions to reopen and 
reconsider. Because deferred action is an exercise of prosecutorial 
discretion and not a benefit, these provisions do not apply to DACA 
requests.
    Proposed paragraph (c) explains that the Secretary has broad 
authority to establish national immigration enforcement policies and 
priorities under 6 U.S.C. 202(5) and section 103 of the INA. Deferred 
action is a temporary, favorable exercise of immigration enforcement 
discretion that gives some cases lower priority for enforcement action 
in order to permit DHS to focus its limited enforcement resources on 
those cases that are higher priorities for removal.\263\ As explained 
in the existing regulations, deferred action is ``an act of 
administrative convenience to the government which gives some cases 
lower priority.'' \264\ In exercising its discretionary authority to 
forbear a noncitizen's removal, DHS is recognizing that the noncitizen 
is, for a temporary period, not an immigration enforcement priority. 
The temporary forbearance from removal does not confer any right or 
entitlement to remain in or re-enter the United States, nor does it 
prevent DHS or any other Federal agency from initiating any criminal or 
other enforcement action against the DACA requestor at any time if DHS 
determines in its sole and unreviewable discretion not to continue to 
exercise favorable enforcement discretion with respect to the 
individual.\265\
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    \263\ Proposed 8 CFR 236.21(c)(1).
    \264\ 8 CFR 274a.12(c)(14).
    \265\ See Proposed 8 CFR 236.21(c)(1).
---------------------------------------------------------------------------

    In the Napolitano Memorandum, the Secretary determined that certain 
children and young adults without lawful immigration status or parole 
who came to this country years ago as children were low-priority cases 
and warranted, for humanitarian and other reasons, a favorable exercise 
of enforcement discretion.\266\ The memorandum explains that these 
vulnerable individuals ``know only this country as home'' and generally 
``lacked the intent to violate the [immigration] law[s].'' \267\
---------------------------------------------------------------------------

    \266\ See Napolitano Memorandum at 1.
    \267\ Id.
---------------------------------------------------------------------------

    During the period of forbearance from removal, a DACA recipient is 
considered ``lawfully present'' for purposes of 8 CFR 1.3(a)(4)(vi) and 
does not accrue ``unlawful presence'' for purposes of INA sec. 
212(a)(9). DACA recipients may apply for employment authorization based 
on economic necessity.\268\ The provision of employment authorization 
and consideration of ``lawful presence'' for DACA recipients is 
pursuant to longstanding and independent DHS regulations and 
implementing guidance promulgated for all recipients of deferred 
action, as discussed elsewhere in this proposed rule.\269\ Deferred 
action, however, is not a lawful immigration status and does not cure 
previous or subsequent periods of unlawful presence.
---------------------------------------------------------------------------

    \268\ See proposed 8 CFR 236.21(c) and 274a.12(c)(33).
    \269\ See 8 CFR 274a.12(c)(14); 8 CFR 1.3(a)(4)(vi).
---------------------------------------------------------------------------

C. Section 236.22--Discretionary Determination

    Section 236.22 contains the proposed provisions governing DHS's 
discretionary determination of requests for DACA. As explained, 
deferred action is a temporary, favorable exercise of immigration 
enforcement discretion that gives some cases lower priority for 
enforcement action. A pending request for deferred action does not 
authorize or confer any immigration benefits such as employment 
authorization or advance parole.\270\ Deferred action requests 
submitted under this section would be determined on a case-by-case 
basis.\271\
---------------------------------------------------------------------------

    \270\ Proposed 8 CFR 236.22(a)(2).
    \271\ Proposed 8 CFR 236.22(c).
---------------------------------------------------------------------------

    The proposed rule lays out several threshold discretionary criteria 
that USCIS would assess on a case-by-case basis as part of a review of 
the totality of the circumstances. Even if all the threshold criteria 
are found to have been met, USCIS would examine the totality of the 
circumstances in the individual case to determine whether there are 
negative factors that make the grant of deferred action inappropriate 
or outweigh the positive factors presented by the threshold criteria or 
by any other evidence. Under the proposed rule, even if the adjudicator 
finds that an individual meets all the enumerated guidelines, the 
adjudicator has the discretion to deny deferred action after 
supervisory review and concurrence if, in the adjudicator's judgment, 
the case presents negative factors that make the grant of deferred 
action inappropriate or that outweigh the positive factors.
    Although DHS could issue a policy from which individual 
adjudicators have no discretion to depart, and thus create something 
like a firm rule for adjudicators to apply,\272\ DHS recognizes that 
(1) case-by-case assessment is a longstanding feature of deferred 
action policies; and (2) case-by-case assessments can yield important 
benefits in cases where the balance of the circumstances and relevant 
equities suggests a result that could not have been codified in an ex 
ante policy. Nonetheless, DHS recognizes that there could be costs 
associated with maintaining adjudicator discretion to deny a request 
notwithstanding

[[Page 53766]]

satisfaction of the eligibility guidelines in the proposed rule. DHS 
believes that its proposed approach maintains the right mix of 
guidelines and discretion, but it welcomes comments on that 
approach.\273\
---------------------------------------------------------------------------

    \272\ See, e.g., Lopez v. Davis, 531 U.S. 230, 243-44 (2001) 
(observing that, `` `even if a statutory scheme requires 
individualized determinations,' . . . `the decisionmaker has the 
authority to rely on rulemaking to resolve certain issues of general 
applicability unless Congress clearly expresses an intent to 
withhold that authority' '' and that such categorical applications 
or rules help to order the exercise of discretion, avoiding 
``favoritism, disunity, and inconsistency'' (quoting Am. Hosp. Ass'n 
v. NLRB, 499 U.S. 606, 612 (1991))); Fook Hong Mak v. INS, 435 F.2d 
728, 730 (2d Cir. 1970) (holding that there is no legal principle 
``forbidding an [agency], vested with discretionary power, to 
determine,'' in a manner consistent with the APA, ``that he will or 
will not use it in favor of a particular class on a case-by-case 
basis'' and that the agency ``could select one characteristic as 
entitling a group to favorable treatment despite minor variables''); 
see also Reno v. Flores, 507 U.S. 292, 313 (1993) (observing that 
although the Attorney General's discretion in making immigration 
custody determinations required ``some level of individualized 
determination,'' the INS need not ``forswear use of reasonable 
presumptions and generic rules''); id. at 313-14 (``In the case of 
each detained alien juvenile, the INS makes those determinations 
that are specific to the individual and necessary to accurate 
application of the regulation,'' which established a ``blanket'' 
presumption against release to custodians other than parents, close 
relatives, and guardians, and ``[t]he particularization and 
individuation need go no further . . . .'').
    \273\ DHS notes that, historically, DACA requests have been 
approved at a relatively high rate. See USCIS, DACA Quarterly Report 
(FY 2021, Q1). DHS believes this is likely because DACA requestors 
generally have self-selected based on their belief that they qualify 
based on the Napolitano Memorandum criteria and public-facing 
guidance. See Texas v. United States, 809 F.3d 134, 174 (5th Cir. 
2015) (Texas I). Accurate self-selection has advantages for 
requestors, who may wish to pay a fee only if they are relatively 
certain that they will obtain deferred action, and DHS believes it 
likely that a similar approval rate would continue under the 
proposed rule, although it is possible that the rate will decline if 
more noncitizens with borderline cases choose to apply for DACA once 
Form I-765 (and accompanying filing fee) is not also required. In 
either case, DHS does not believe that a relatively high approval 
rate raises legal or policy concerns, because the proposed rule 
would continue to provide clear guidance to potential requestors 
while maintaining DHS's ability to deny those requests that do not 
meet the enumerated criteria or that otherwise do not merit a 
favorable exercise of prosecutorial discretion.
---------------------------------------------------------------------------

    In this section of the proposed rule, as well as in 8 CFR 236.23 
(which is discussed below), DHS has chosen generally to adhere to the 
threshold criteria for eligibility for DACA from the Napolitano 
Memorandum and as applied by DHS since 2012. DHS proposes to retain the 
threshold criteria of the DACA policy in part for reasons previously 
discussed and in part due to recognition of the significant reliance 
interests of individuals who have previously received DACA grants, as 
well as those similarly situated who have not yet requested DACA. This 
focus on reliance interests and preservation of the primary features of 
the policy is consistent with the President's direction to preserve and 
fortify DACA, as well as the Supreme Court's decision in Regents, as 
described above. This approach also is informed by DHS's assessment 
that the policy contained in the Napolitano Memorandum successfully 
advances DHS's important enforcement mission and reflects the practical 
realities of a defined class of undocumented noncitizens who are for 
strong policy reasons unlikely to be removed in the near future and who 
contribute meaningfully to their families, their communities, their 
employers, and the United States generally, as discussed elsewhere in 
this proposed rule. Moreover, the establishment and continued 
application of threshold discretionary criteria, while allowing for the 
residual exercise of discretion to account for other relevant 
considerations, serves to promote consistency and avoid arbitrariness 
in these determinations.
    DHS believes that the proposed rule is drafted at an appropriate 
level of specificity, but it anticipates the need for further guidance, 
along the lines of the current DACA FAQs, to interpret the regulations 
and guide adjudicators in the exercise of their duties. DHS welcomes 
comment on whether other aspects of the DACA FAQs should be codified in 
the final rule.
1. Threshold Criteria and Burden of Proof
    As proposed in this rule, and subject to the discretionary 
considerations described below, USCIS would consider requests for DACA 
from individuals who meet the following threshold criteria:
     Came to the United States before reaching their 16th 
birthday;
     Have continuously resided in the United States since June 
15, 2007, to the time of filing of the request;
     Were physically present in the United States on June 15, 
2012, and at the time of making their request for consideration of 
deferred action with USCIS;
     Had no lawful immigration status on June 15, 2012, as well 
as at the time of filing of the request for DACA;
     Are currently in school, have graduated or obtained a 
certificate of completion from high school, have obtained a GED 
certificate, or are an honorably discharged veteran of the Coast Guard 
or Armed Forces of the United States;
     Have not been convicted of a felony, a misdemeanor 
described in the rule, or three or more other misdemeanors, and do not 
otherwise pose a threat to national security or public safety; and
     Were born on or after June 16, 1981, and are at least 15 
years of age at the time of filing their request, unless, at the time 
of filing their request, they are in removal proceedings, have a final 
order of removal, or have a voluntary departure order.
    The burden would be on the DACA requestor to demonstrate that they 
meet the threshold criteria by a preponderance of the evidence.\274\ 
Under the preponderance of the evidence standard, the sufficiency of 
each piece of evidence would be examined for relevance, probative 
value, and credibility, both individually and within the context of the 
totality of the evidence, to determine whether the fact to be proven is 
probably true.\275\
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    \274\ See proposed 8 CFR 236.22(a)(3).
    \275\ Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).
---------------------------------------------------------------------------

    Consistent with current practice, DHS would accept either primary 
or secondary evidence to determine whether the DACA requestor meets the 
threshold criteria. As used in the proposed rule, primary evidence 
would mean documentation, such as a birth certificate, that, on its 
face, proves a fact. Secondary evidence would mean other documentation 
that is more circumstantial and could lead the reviewer to conclude 
that it is more likely than not that the fact sought to be proven is 
true. Examples of secondary evidence include baptismal records issued 
by a church showing that the DACA requestor was born at a certain time 
or rental agreements in the name of the DACA requestor's parents to 
demonstrate periods of residence in the United States. Secondary 
evidence may require corroboration with other evidence submitted by the 
requestor.
    DHS would evaluate the totality of all the evidence to determine if 
the other threshold criteria have been met. Consistent with practice 
under the Napolitano Memorandum, affidavits submitted in lieu of 
primary or secondary evidence would generally not be sufficient on 
their own to demonstrate that a requestor meets the DACA threshold 
criteria, except in certain circumstances as discussed in this proposed 
rule.
2. Arrival in the United States Under the Age of 16
    Under proposed 8 CFR 236.22(b)(1), a noncitizen requesting DACA 
would be required to demonstrate that they arrived in the United States 
when they were under 16 years of age. This is a codification of the 
requirement in the Napolitano Memorandum that the noncitizen ``came to 
the United States under the age of sixteen.'' \276\ Retaining this 
threshold requirement is also reflective of DHS's desire to limit DACA 
to those individuals who came to the United States as children and, as 
a result, present special considerations that may merit assigning lower 
priority for removal action due to humanitarian and other reasons, as 
described elsewhere in this proposed rule.
---------------------------------------------------------------------------

    \276\ Napolitano Memorandum at 1.
---------------------------------------------------------------------------

3. Continuous Residence in the United States From June 15, 2007
    A DACA requestor would be required to demonstrate that they have 
continuously resided in the United States since at least June 15, 
2007.\277\ This criterion is taken directly from the Napolitano 
Memorandum, such that the population of potentially eligible

[[Page 53767]]

noncitizens would remain substantially the same under the proposed 
rule. Applying this same continuous residence criterion in the codified 
DACA policy is in line with DHS's longstanding message that DACA is not 
available to individuals who have not continuously resided in the 
United States since at least June 15, 2007. Border security is a high 
priority for the Department, and we do not believe that codifying the 
DACA policy, with the continuous residence requirement included, would 
undermine DHS's enforcement messaging.
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    \277\ Proposed 8 CFR 236.22(b)(2).
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    To provide further clarity on the meaning of this requirement, DHS 
proposes to define ``residence'' for the purpose of 8 CFR 236.22(b)(2) 
to mean ``the principal, actual dwelling place in fact, without regard 
to intent,'' which aligns with the INA definition of ``residence'' at 
section 101(a)(33), 8 U.S.C. 1101(a)(33). The proposed regulatory text 
also explains that the term ``residence'' is ``specifically [the] 
country of actual dwelling place.'' \278\
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    \278\ See proposed 8 CFR 236.22(b)(2).
---------------------------------------------------------------------------

    As has been longstanding DHS policy generally, any brief, casual, 
and innocent absences from the United States prior to August 15, 2012, 
would not result in a break of continuous residence for the purpose of 
this requirement.\279\ Any travel outside of the United States on or 
after August 15, 2012, without prior DHS authorization, such as advance 
parole, would be considered an interruption in continuous 
residence.\280\ Section 236.22 delineates the circumstances under which 
absences prior to August 15, 2012, would be considered brief, casual, 
and innocent. An absence would be considered brief, casual, and 
innocent if:
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    \279\ See DACA FAQs.
    \280\ Proposed 8 CFR 236.22(b)(2).
---------------------------------------------------------------------------

     The absence was short and reasonably calculated to 
accomplish the purpose for the absence;
     the absence was not because of a post-June 15, 2007 order 
of exclusion, deportation, or removal;
     the absence was not because of a post-June 15, 2007 order 
of voluntary departure, or an administrative grant of voluntary 
departure before the requestor was placed in exclusion, deportation, or 
removal proceedings; and
     the purpose of the trip, and the requestor's actions while 
outside the United States, were not contrary to law.\281\
---------------------------------------------------------------------------

    \281\ Proposed 8 CFR 236.22(b)(2)(i) through (iv).
---------------------------------------------------------------------------

    This definition of continuous residence is rooted in case law and 
has been codified in other contexts, such as TPS and the Legal 
Immigration Family Equity Act legalization provisions.\282\ As 
discussed, affidavits in lieu of primary or secondary evidence would 
generally not be sufficient on their own to demonstrate that a 
requestor meets the DACA threshold criteria. However, affidavits may be 
used to support evidence that the requestor meets the continuous 
residence requirement if there is a gap in documentation for the 
requisite periods and primary and secondary evidence is not available. 
DHS requests comments on whether affidavits should be considered 
acceptable evidence of the start of the continuous residence period for 
new initial requestors for DACA who may have been very young at the 
time of entry to the United States and may have difficulty obtaining 
primary or secondary evidence to establish this threshold requirement.
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    \282\ See 8 CFR 244.9(a)(2) and 245a.16(b).
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4. Physical Presence in the United States
    For the same reasons described in the section on continuous 
presence immediately above, this proposed rule would codify the 
requirement from the Napolitano Memorandum and longstanding DACA policy 
that the requestor must demonstrate that they were physically present 
in the United States on June 15, 2012, which is the date of the 
issuance of the Napolitano Memorandum, as well as on the date of filing 
the DACA request.\283\ As with the other guidelines, DHS would 
generally not accept affidavits alone as proof of satisfying the 
physical presence requirement.
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    \283\ Proposed 8 CFR 236.22(b)(3).
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5. Lack of Lawful Immigration Status
    As discussed above, the proposed rule is intended to codify the 
DACA policy without significantly changing the potentially eligible 
population. It is longstanding DHS policy that to be considered for 
DACA, the requestor must demonstrate that they were not in a lawful 
immigration status on June 15, 2012.\284\ This explicit guideline was 
not in the Napolitano Memorandum issued on June 15, 2012, but it is 
implicit in the memorandum's reference to children and young adults who 
are subject to removal because they lack lawful immigration status. 
This requirement is consistent with the underlying purpose of the 
policy, inasmuch as it limits the availability of the program to those 
individuals who were subject to removal at the time the memorandum was 
issued. Individuals also must be without lawful immigration status at 
the time of the request for DACA in order to be eligible for deferred 
action from removal.
---------------------------------------------------------------------------

    \284\ DACA FAQs.
---------------------------------------------------------------------------

    DHS is proposing to codify this guideline by requiring that the 
requestor must not have been in a lawful immigration status on June 15, 
2012, as well as at the time of filing of the request for deferred 
action under this section. If the requestor was in lawful immigration 
status at any time before June 15, 2012, or at any time after June 15, 
2012, and before the date of the request, they would be required to 
submit evidence that that lawful status had expired prior to those 
dates.\285\ For purposes of this proposed rule, the requirement 
regarding lack of lawful immigration status would mean either that the 
requestor never had a lawful immigration status, or that any lawful 
immigration status that they obtained prior to June 15, 2012, had 
expired before June 15, 2012, and likewise any lawful immigration 
status acquired after June 15, 2012, must have expired before the date 
of filing the request for DACA. If the requestor was admitted for 
duration of status, USCIS would not consider the requestor to be a 
person who is not in lawful immigration status for purposes of 
eligibility for DACA, unless the Department of Justice, Executive 
Office for Immigration Review (EOIR), terminated their status by 
issuing a final order of removal against them or their status is listed 
as ``terminated'' in the Student and Exchange Visitor Information 
System on or before June 15, 2012. Requestors who were admitted for 
duration of status as dependent nonimmigrants who aged out of their 
nonimmigrant status on or before June 15, 2012, could be considered for 
deferred action under the proposed rule.
---------------------------------------------------------------------------

    \285\ Proposed 8 CFR 236.22(b)(4).
---------------------------------------------------------------------------

6. Education
    In accordance with longstanding DHS policy and the Napolitano 
Memorandum, DHS is proposing to codify the guideline that a DACA 
requestor must be currently enrolled in school, have graduated or 
received a certificate of completion from high school, have obtained a 
GED, or be an honorably discharged veteran of the Coast Guard or Armed 
Forces of the United States.\286\ This guideline is reflective of DHS's 
recognition of the importance of education and military service, as 
well as of the significant contributions to this country of noncitizen 
youth who have been educated in and/or served in the Coast

[[Page 53768]]

Guard or Armed Forces of the United States.
---------------------------------------------------------------------------

    \286\ Proposed 8 CFR 236.22(b)(5).
---------------------------------------------------------------------------

    To be considered currently enrolled in school, under longstanding 
DHS policy, as of the date of the request, the DACA requestor must be 
enrolled in:
     A public, private, or charter elementary school, junior 
high or middle school, high school, secondary school, alternative 
program, or homeschool program that meets State requirements;
     an education, literacy, or career training program 
(including vocational training) that has a purpose of improving 
literacy, mathematics, or English, or is designed to lead to placement 
in postsecondary education, job training, or employment and where the 
requestor is working toward such placement; or
     an education program assisting students either in 
obtaining a regular high school diploma or its recognized equivalent 
under State law (including a certificate of completion, certificate of 
attendance, or alternate award), or in passing a GED exam or other 
State-authorized exam (e.g., HiSet or TASC) in the United States.\287\
---------------------------------------------------------------------------

    \287\ DACA FAQs.
---------------------------------------------------------------------------

    Such education, literacy, or career training programs (including 
vocational training), or education programs assisting students in 
obtaining a regular high school diploma or its recognized equivalent 
under State law, or in passing a GED exam or other State-authorized 
exam in the United States, include programs funded, in whole or in 
part, by Federal, State, county, or municipal grants, or administered 
by non-profit organizations. Under longstanding policy, which DHS 
currently intends to maintain (but could revise to the extent 
consistent with law at a future date), programs funded by other sources 
would qualify if they are programs of demonstrated effectiveness.\288\ 
DHS does not consider enrollment in a personal enrichment class (such 
as arts and crafts) or a recreational class (such as canoeing) to be an 
alternative educational program. Therefore, enrollment in such a 
program would not be considered to meet the ``currently enrolled in 
school'' guideline for purposes of this proposed rule.
---------------------------------------------------------------------------

    \288\ Id.
---------------------------------------------------------------------------

    As noted above, DHS proposes to codify the longstanding policy that 
a DACA requestor also can meet the educational guideline if they have 
graduated from high school or received a GED.\289\ To meet this 
component of the educational guideline, consistent with longstanding 
policy, the DACA requestor would need to show that they have graduated 
or obtained a certificate of completion from a U.S. high school or have 
received a recognized equivalent of a high school diploma under State 
law; have passed a GED test or other equivalent State-authorized exam 
in the United States; or have graduated from a public or private 
college, university, or community college.\290\
---------------------------------------------------------------------------

    \289\ Proposed 8 CFR 236.22(b)(5).
    \290\ USCIS considers graduation from a public or private 
college, university, or community college as sufficient proof of 
meeting the educational guideline because a college or university 
generally would require a high school diploma, GED certificate, or 
equivalent for enrollment.
---------------------------------------------------------------------------

    As proposed, and consistent with longstanding policy, in lieu of 
being currently enrolled in school, having graduated from high school, 
or having received a GED, a DACA requestor may be an honorably 
discharged veteran of the Coast Guard or Armed Forces of the United 
States.\291\ This may include reservists who were honorably discharged. 
Current or ongoing service in the Coast Guard or Armed Forces of the 
United States would not qualify under this component of the guideline.
---------------------------------------------------------------------------

    \291\ Proposed 8 CFR 236.22(b)(5).
---------------------------------------------------------------------------

7. Criminal History/Public Safety
    Under the proposed rule, and consistent with longstanding policy, 
in order to be eligible for DACA, the requestor must not have been 
convicted of a felony, a misdemeanor described in Sec.  236.22(b)(6) of 
the proposed rule,\292\ or three or more other misdemeanors not 
occurring on the same date and not arising out of the same act, 
omission, or scheme of misconduct, or otherwise pose a threat to 
national security or public safety.\293\ DHS currently uses the 
following definitions for each type of offense, and it would continue 
to rely on such definitions under the proposed rule as they have been 
effective at ensuring that those individuals who are a high priority 
for removal are not eligible for DACA while allowing for an 
individualized, case-by-case determination about whether to grant 
deferred action to each requestor:
---------------------------------------------------------------------------

    \292\ Under the Napolitano Memorandum, this concept is described 
as a ``significant misdemeanor.'' Because some stakeholders have 
expressed confusion regarding this term, DHS proposes to revise this 
terminology as part of the rulemaking. The substantive policy would 
remain the same.
    \293\ Proposed 8 CFR 236.22(b)(6); DACA FAQs.
---------------------------------------------------------------------------

     A ``felony'' is a Federal, State, or local criminal 
offense punishable by imprisonment for a term exceeding 1 year;
     a ``misdemeanor'' is a Federal, State, or local criminal 
offense for which the maximum term of imprisonment authorized is 1 year 
or less but greater than 5 days; and
     a misdemeanor described in Sec.  236.22(b)(6) of this 
proposed rule refers to a misdemeanor that is an offense of domestic 
violence, sexual abuse or exploitation, burglary, unlawful possession 
or use of a firearm, drug distribution or trafficking, or driving under 
the influence; or is one for which the individual was sentenced to time 
to be served in custody of more than 90 days.
    The time to be served in custody does not include any time served 
beyond the sentence for the criminal offense based on a State or local 
law enforcement agency honoring a detainer issued by ICE. Immigration-
related offenses characterized as felonies or misdemeanors under State 
laws would not be treated as disqualifying crimes for the purpose of 
considering a request for consideration of deferred action pursuant to 
this process. Other offenses, such as foreign convictions and minor 
traffic offenses, would generally not be treated as a felony or 
misdemeanor, but they may be considered under a review of the totality 
of the circumstances. Under current policy, cases involving foreign 
convictions should be elevated for supervisory review. DHS does not 
currently anticipate changing this practice. DHS welcomes comments on 
whether a more detailed definition of these offenses, including ``minor 
traffic offenses,'' should be added to the rule (and if so, how the 
offenses should be defined) or whether the matter remains appropriate 
for subregulatory guidance.
    If the evidence establishes that an individual has been convicted 
of a felony, a misdemeanor described in Sec.  236.22(b)(6) of the 
proposed rule, or three or more other misdemeanors not occurring on the 
same date and not arising out of the same act, omission, or scheme of 
misconduct, USCIS would deny the request for deferred action. As 
discussed throughout this rule, the decision whether to defer action in 
a particular case is an individualized one, and thus would take into 
account the totality of the circumstances, including the nature and 
severity of the underlying criminal, national security, or public 
safety concerns. USCIS would retain the discretion to determine that an 
individual does not warrant deferred action on the basis of, for 
instance, a single criminal offense for which the individual was 
sentenced to time in custody of 90 days or less, or an arrest for an 
extremely serious crime where criminal proceedings are ongoing. 
Additionally, to the extent that the DACA guidelines may not align with 
other current or future DHS enforcement

[[Page 53769]]

discretion guidance, USCIS may consider that guidance when determining 
whether to deny or terminate DACA even where the DACA guidelines are 
met. Therefore, the absence or presence of a criminal history would not 
necessarily be determinative, but it would be a factor to be 
considered.
8. Age at Time of Request
    To simplify the guideline from the Napolitano Memorandum and 
longstanding DHS policy that the requestor must have been under the age 
of 31 on June 15, 2012, DHS is clarifying that the requestor must have 
been born on or after June 16, 1981.\294\ DHS also proposes to 
incorporate the longstanding guideline that a DACA requestor must be 
over the age of 15 at the time of filing the request, unless they are 
in removal proceedings, have a final removal order, or have a voluntary 
departure order.\295\ As noted above, these proposed provisions are in 
line with the Department's goal of preserving and fortifying the DACA 
policy as it currently exists.
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    \294\ Proposed 8 CFR 236.22(b)(7).
    \295\ Proposed 8 CFR 236.22(b)(7).
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D. Section 236.23--Procedures for Request, Terminations, and 
Restrictions on Information Use

1. USCIS Jurisdiction
    Consistent with longstanding policy, proposed Sec.  236.23 would 
provide that USCIS has exclusive jurisdiction over requests for DACA 
for non-detained individuals.\296\ Individuals who are in immigration 
detention may request DACA but may not be approved for DACA unless they 
are released from detention by ICE prior to USCIS' decision on the DACA 
request.\297\ A noncitizen in removal proceedings would be allowed to 
apply for deferred action regardless of whether those proceedings have 
been administratively closed. And a voluntary departure order or a 
final order of exclusion, deportation, or removal would not bar a 
noncitizen from requesting DACA under this subpart.\298\
---------------------------------------------------------------------------

    \296\ Proposed 8 CFR 236.23(a)(2).
    \297\ Id.; see also ICE, ``Deferred Action for Childhood 
Arrivals (DACA) and Deferred Action for Parents of Lawful Permanent 
Residents (DAPA),'' https://www.ice.gov/daca.
    \298\ Proposed 8 CFR 236.23(a)(2).
---------------------------------------------------------------------------

    USCIS would notify the requestor, and if applicable, the 
requestor's attorney of record or accredited representative, of the 
decision to approve or deny the request for DACA in writing.\299\ 
Continuing with current practice, this rule proposes that a grant of 
DACA generally will be provided for an initial period of 2 years.\300\ 
Consistent with longstanding policy and given the nature of deferred 
action as an exercise of prosecutorial discretion and not a benefit, 
USCIS is not proposing any new requirements to issue a request for 
evidence or a notice of intent to deny if the requestor does not meet 
the eligibility guidelines or if USCIS denies the request as a matter 
of discretion.\301\ Nor would USCIS be required to indicate the reasons 
for the denial, provide for the right to file an administrative appeal, 
or allow for the filing of a motion to reopen or motion to 
reconsider.\302\ USCIS would be permitted to reopen or reconsider 
either an approval or a denial of such a request on its own initiative, 
however, and in addition a denied requestor would be allowed to submit 
another DACA request on the required form and with the requisite fees 
or apply for any form of relief or protection under the immigration 
laws.\303\
---------------------------------------------------------------------------

    \299\ Proposed 8 CFR 236.23(c).
    \300\ Proposed 8 CFR 236.23(a)(4).
    \301\ See Proposed 8 CFR 236.23(a)(3).
    \302\ See Proposed 8 CFR 236.21(b).
    \303\ See Proposed 8 CFR 236.22(d) and 236.23(c).
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2. Issuance of a Notice To Appear or Referral to ICE
    USCIS' policy for issuance of an NTA or RTI for denied DACA 
requests has remained unchanged since the inception of DACA in 2012, 
and DHS proposes to retain the essential elements of that policy in 
this rule.\304\ USCIS would not issue an NTA or RTI for possible 
enforcement action against a DACA requestor as part of a denial unless 
the requestor meets DHS's criteria for enforcement action as proposed 
in this rule.\305\ Current DHS policy for DACA as described under the 
DACA FAQs provides that if a requestor's case is denied, they will not 
be referred to ICE for purposes of removal proceedings unless their 
case involves a criminal offense, fraud, a threat to national security 
or public safety, or where DHS determines there are exceptional 
circumstances.\306\ In this proposed rule, DHS intends to provide 
additional clarity for when an individual whose case has been denied 
would be referred to ICE or issued an NTA and has identified based on 
current practice the three general categories of cases that are 
prioritized as subject to immigration enforcement. Pursuant to these 
guidelines, USCIS would issue an NTA or RTI for possible enforcement 
action against a DACA requestor under this proposed rule if the case 
involves a denial for fraud, a threat to national security, or public 
safety concerns.\307\ This approach to enforcement is consistent with 
interim DHS guidelines to ``implement civil immigration enforcement 
based on sensible priorities,'' which include ``protecting national 
security, border security, and public safety.'' \308\ The appropriate 
charges on the Form I-862, Notice to Appear, will be determined on a 
case-by-case basis, and DHS may charge an individual who falls under 
any of these immigration enforcement priorities with grounds for 
removal that are unrelated to the underlying fraud, criminality, 
national security, or public safety factors.
---------------------------------------------------------------------------

    \304\ See DACA FAQs.
    \305\ See Proposed 8 CFR 236.23(c)(2).
    \306\ See DACA FAQs.
    \307\ Proposed 8 CFR 236.23(c)(2).
    \308\ See Pekoske Memorandum. Previous guidelines pertaining to 
enforcement and removal policies similarly have identified 
``national security, public security, and border security'' as the 
Department's top priorities. See Memorandum from Secretary Jeh 
Charles Johnson to Acting Director of ICE, et al., Policies for the 
Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 
20, 2014).
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3. Termination of Deferred Action
    The decision on whether to grant a request for DACA is determined 
on a case-by-case basis as an exercise of the agency's prosecutorial 
discretion. Accordingly, DHS maintains its position that USCIS also may 
terminate a grant of DACA at any time if it determines that the 
recipient did not meet the threshold criteria; there are criminal, 
national security, or public safety issues; or there are other adverse 
factors resulting in a determination that continuing to exercise 
prosecutorial discretion is no longer warranted. Despite its broad 
prosecutorial discretion to terminate DACA, USCIS generally has 
provided a NOIT with an opportunity for the DACA recipient to respond 
before USCIS makes its final decision on termination. However, subject 
to the Federal district court's 2018 nationwide preliminary injunction 
in Inland Empire,\309\ USCIS does exercise its discretion to terminate 
DACA immediately upon issuance of a Termination Notice in cases 
involving certain criminal, national security, or public safety 
concerns. For example, USCIS may issue a Termination Notice where there 
is a criminal charge based on an EPS offense described in the USCIS 
2011 NTA policy memorandum.\310\ In addition and except

[[Page 53770]]

with regard to class members in Inland Empire, DACA terminates 
automatically upon the issuance of an NTA in immigration court to a 
DACA recipient, although USCIS sends the individual a notice of action 
(NOA) informing the recipient that automatic termination has occurred 
as of the date of the NTA issuance. DACA also automatically terminates 
and an NOA is issued when the recipient departs the United States 
without having obtained an advance parole document from USCIS.\311\
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    \309\ For a full description of the Inland Empire litigation, 
including the preliminary injunction, see discussion of litigation 
history at Section III.B of this preamble.
    \310\ Available at https://www.uscis.gov/sites/default/files/document/memos/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf. 
As discussed in the litigation history section of this rule and 
below, individuals with pending EPS charges are not class members 
covered by the Inland Empire preliminary injunction.
    \311\ Unlike cases where USCIS makes an affirmative decision to 
terminate DACA, these two instances of automatic DACA termination 
currently occur upon issuance of the NTA or departure without 
advance parole and do not require any USCIS decision to terminate.
---------------------------------------------------------------------------

    Although the Inland Empire injunction currently prohibits USCIS 
from terminating a class member's DACA without issuance of a NOIT, a 
reasoned explanation, or an opportunity to respond prior to 
termination, or terminating DACA at all based on an NTA that charges 
the individual solely as being present without inspection and admission 
or being an overstay, it is significant that the court granted the 
parties' agreement to carve out from class membership individuals who: 
(1) Have a criminal conviction that is disqualifying for DACA; (2) have 
a charge for a crime that falls within the EPS grounds referenced in 
the USCIS 2011 NTA policy memorandum; \312\ (3) have a pending charge 
for certain terrorism and security crimes described in 8 U.S.C. 
1182(a)(3)(B)(iii) and (iv) or 8 U.S.C. 1227(a)(4)(A)(i); (4) departed 
the United States without advance parole; (5) were physically removed 
from the United States pursuant to an order of removal, voluntary 
departure order, or voluntary return agreement; or (6) maintain a 
nonimmigrant or immigrant status. In excluding these individuals from 
the Inland Empire class, the court effectively recognized USCIS' 
prosecutorial discretion to terminate DACA, with or without notice, 
including the automatic termination of DACA when an NTA is issued to a 
non-class member or when any DACA recipient departs the United States 
without advance parole.
---------------------------------------------------------------------------

    \312\ See supra note 128.
---------------------------------------------------------------------------

    Although DHS disagrees with the Inland Empire court's preliminary 
injunction and DHS's appeal of the order remains pending, DHS will 
continue to comply fully with the court's order, as it has for more 
than 3 years, unless and until that order is no longer in effect. 
Subject to such continued compliance if necessary when this rule 
becomes final, DHS currently proposes to codify USCIS' prosecutorial 
discretion to terminate a grant of DACA at any time, with or without 
the issuance of a NOIT.\313\ This provision would allow for 
terminations under this paragraph in circumstances where the DACA 
recipient does not meet the threshold criteria proposed in this rule, 
the recipient committed disqualifying criminal offenses or presents 
national security or public safety concerns, or other adverse factors 
result in a determination that continuing to exercise prosecutorial 
discretion is no longer warranted. Although the provision permits the 
termination of DACA without a NOIT, USCIS intends to maintain its 
longstanding practice of generally providing a NOIT where appropriate.
---------------------------------------------------------------------------

    \313\ Proposed 8 CFR 236.23(d).
---------------------------------------------------------------------------

    Non-automatic terminations of a grant of DACA, regardless of 
whether a NOIT is issued, would be made on a case-by-case basis 
pursuant to an assessment of the totality of the circumstances, 
including any documentary evidence. The proposed rule also would codify 
two bases for automatic termination: (1) Filing of an NTA for removal 
proceedings with EOIR, unless the NTA is issued by USCIS solely as part 
of an asylum referral to EOIR; or (2) departure of the DACA recipient 
from the United States without an advance parole document.\314\ 
Although the proposed grounds for automatic termination are consistent 
with longstanding policy, DHS is proposing to modify when termination 
will occur based upon an NTA by shifting from the current policy of 
termination at the time of issuance of an NTA to termination at the 
time the NTA is filed with EOIR, marking the commencement of 
proceedings before an immigration judge.\315\ DHS proposes this change 
to avoid termination in instances where NTAs are issued but later 
canceled prior to filing with EOIR. In addition, DHS is proposing to 
create a new exception to termination based upon an NTA where USCIS 
files an NTA with EOIR solely as part of an asylum referral. This 
exception would preserve DACA for those whose asylum cases are referred 
to the immigration court by the USCIS Asylum Division. Without such an 
exception, a DACA recipient either must lose DACA with the filing of 
the NTA referring the case to the immigration court, or keep DACA but 
forgo the opportunity to continue seeking asylum as a principal 
applicant or as a dependent on a parent or spouse's claim in 
immigration court (as allowed by existing DHS and DOJ 
regulations).\316\ DHS has determined that, in the balancing of the 
equities and for humanitarian reasons, DACA will not terminate 
automatically for reasons based solely on the filing of an NTA for 
purposes of referring an asylum case to EOIR. However, DHS continues to 
reserve its prosecutorial discretion to terminate the individual's 
DACA, as appropriate, for other reasons permitted by the rule.
---------------------------------------------------------------------------

    \314\ Proposed 8 CFR 236.23(d)(2).
    \315\ See 8 CFR 1003.14(a).
    \316\ See 8 CFR 208.14(c); 8 CFR 1208.14(c).
---------------------------------------------------------------------------

    Under proposed 8 CFR 236.23(d)(3), termination of a grant of DACA 
also would result in the automatic termination of any employment 
authorization granted under proposed 8 CFR 274a.12(c)(33) and any 
related employment authorization documentation as of the date DACA is 
terminated, as it would not be reasonable for employment authorization 
based on a grant of DACA to continue where the DACA has been 
affirmatively terminated by DHS. The individual retains the ability to 
seek employment authorization under any other ground applicable to the 
individual's particular circumstances in 8 CFR 274a.12.
    DHS also is considering other alternatives for this termination of 
DACA section of the proposed rule, on which DHS welcomes comment. One 
alternative would be to modify the provision regarding automatic 
termination of DACA solely based on the filing of an NTA so that such 
termination would be applicable only to certain categories of DACA 
recipients, such as individuals who are subject to an investigation 
regarding, have been arrested for, or have a conviction for an EPS 
offense, and certain individuals who fall within the terrorism or 
national security related provisions of the INA grounds for 
inadmissibility or deportability. A second alternative would be to 
strike the provision regarding automatic termination of DACA solely 
based on the filing of an NTA or to modify it to make termination 
automatic at a later point in the process for some or all DACA 
recipients (e.g., upon issuance of an administratively final order of 
removal).
    A third alternative, which could be implemented separately or in 
conjunction with the first or second, would be to specify the instances 
in which USCIS generally will issue a NOIT, with opportunity for the 
DACA recipient to respond before USCIS makes its final decision on DACA

[[Page 53771]]

termination. Under this alternative, USCIS would continue to retain the 
discretionary authority to terminate DACA without a NOIT in cases 
involving criminal offenses or concerns regarding national security or 
public safety. Depending upon whether other alternative proposals 
described here are adopted, this alternative also could allow for 
automatic DACA termination where the recipient leaves the United States 
without advance parole or an NTA is filed in a case, generally or only 
in cases involving certain EPS, national security, or other public 
safety concerns.
    Finally, DHS is considering an alternative related to automatic 
termination upon the DACA recipient's departure from the United States 
without an advance parole document. DHS is considering an alternative 
under which departure from the United States in certain exigent 
circumstances and without an advance parole document would not 
automatically result in termination, such as where the DACA recipient 
left the country temporarily in an emergency and did not have 
sufficient time to obtain an advance parole document.
    In short, although termination on the provided grounds, including 
automatic termination, is a longstanding feature of DACA and serves 
important policy interests, DHS recognizes that there may be 
potentially beneficial alternatives in this area. DHS welcomes comment 
on each of the above alternatives, and other alternatives that would 
address the same issues.
4. Information Use
    In order to mitigate a potential disincentive for noncitizens with 
no current lawful immigration status to file a request for DACA and 
make their presence known to the Government, DHS implemented an 
information use policy for DACA requests in 2012, which has not changed 
in any way since it was first announced in 2012 (including through 
previous attempts to rescind DACA) and remains in effect in its 
original form to this day. Under this longstanding policy, information 
provided by DACA requestors is collected and considered for the primary 
purpose of adjudicating their DACA requests and is safeguarded from use 
for certain immigration enforcement-related purposes. DHS policy as 
described in the DACA FAQs provides that information about the DACA 
requestor and their family members and guardians is protected from 
disclosure to ICE and CBP for the purpose of immigration enforcement 
proceedings unless the requestor meets the criteria set forth in the 
2011 USCIS NTA policy memorandum, but it notes that the information may 
be shared with national security and law enforcement agencies, 
including ICE and CBP, for purposes other than removal, including for 
assistance in the consideration of DACA, to identify or prevent 
fraudulent claims, for national security purposes, or for the 
investigation or prosecution of a criminal offense.\317\ Additionally, 
the policy assures that individuals whose cases are deferred pursuant 
to DACA will not be referred to ICE.\318\ DHS policy regarding 
information provided in DACA requests has not changed since the 
initiation of DACA. However, DHS proposes in this rule under 8 CFR 
236.23(e) to codify longstanding policy and practice, while clarifying 
that the policy is better understood as a restriction on the use of 
information provided in DACA requests than as a policy governing 
information sharing.
---------------------------------------------------------------------------

    \317\ See DACA FAQs; Instructions for Consideration of Deferred 
Action for Childhood Arrivals, USCIS Form I-821D at 13 (Apr. 24, 
2019).
    \318\ See DACA FAQs.
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    Since the inception of DHS and long before the DACA policy was 
initiated, the three immigration components of DHS (USCIS, ICE, and 
CBP) have had shared access to a variety of DHS electronic systems of 
records, as well as the paper Alien File or ``A-File,'' that contain 
information on noncitizens as they pass through the U.S. immigration 
process, so that each component can conduct its statutory functions 
properly within the overall DHS mission to administer and enforce U.S. 
immigration laws. For example, ICE and CBP officers with a ``need to 
know'' may query the systems on individual noncitizens they encounter 
to verify whether they are permitted to remain in or enter the United 
States and to ensure that the officers do not erroneously remove or 
take other enforcement action (e.g., issuing an NTA for removal 
proceedings) against a person, such as a DACA recipient, who is so 
permitted.
    Pursuant to the Privacy Act of 1974,\319\ DHS regularly publishes 
System of Record Notices (SORNs) for immigration systems that provide 
the public with notice of each system's categories of individuals and 
categories of records, the purposes and legal authority for the 
collection of the information maintained in the system(s), and the 
potential use of the information described in ``routine uses'' for 
those systems that permit disclosure external to DHS. Information 
contained in DHS systems may be accessed by officers and employees of 
DHS ``who have a need for the record in the performance of their 
duties,'' either pursuant to the Privacy Act \320\ or DHS privacy 
policy. The instructions for the Form I-821D, Consideration of Deferred 
Action for Childhood Arrivals, advise requestors that ``[t]he 
information you provide on this form may be shared with other Federal, 
state, local, and foreign government agencies and authorized 
organizations following approved routine uses described in the 
associated published [SORNs].'' In particular, the A-File/Central Index 
System SORN and the Benefits Information System SORN referenced therein 
describe what records are collected on and related to DACA requestors 
and recipients and how such records may be used by government officials 
in the immigration components of DHS as they perform their duties.\321\ 
As such, ICE and CBP officers with a demonstrated ``need to know'' have 
always been able to access an individual's immigration-related 
information, including that contained in DACA requests, by querying DHS 
electronic systems on a case-by-case basis (for instance, by querying 
an individual's A-number or full name and date of birth).
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    \319\ 5 U.S.C. 552a.
    \320\ See 5 U.S.C. 552a(b)(1).
    \321\ See DHS/USCIS/ICE/CBP-001--Alien File, Index, and National 
File Tracking System of Records, 82 FR 43556 (Sept. 18 2017); DHS/
USCIS-007--Benefits Information System, 84 FR 54622 (Oct. 10, 2019); 
see also DHS/USCIS/PIA-003(a) Integrated Digitization Document 
Management Program (Sept. 24, 2013), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-iddmp-09242013.pdf; 
DHS/USCIS/PIA-016(a)--Computer Linked Application Information 
Management System and Associated Systems (Mar. 25, 2016), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-claims3appendixupdated-september2019.pdf; DHS/USCIS/PIA-056--USCIS 
Electronic Immigration System (May 17, 2016), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-elisappendixaupdate-may2018.pdf.
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    Under the DACA information usage policy as set forth immediately 
below the description of ``Routine Uses'' in the instructions for Form 
I-821D, the ``[i]nformation provided in this request is protected from 
disclosure to ICE and [CBP] for the purpose of immigration enforcement 
proceedings unless the requestor meets the criteria for the issuance of 
[an NTA or RTI] under the criteria set forth in USCIS' 2011 [NTA] 
guidance (www.uscis.gov/NTA).'' In conjunction with the described 
routine uses, DHS upholds this policy by (1) prohibiting the 
affirmative provision of information provided by DACA requestors to ICE 
or CBP for the purpose of immigration enforcement, unless the listed 
exception applies; and (2) prohibiting ICE and CBP's use of information 
provided in a DACA

[[Page 53772]]

request for the purpose of immigration enforcement, unless the listed 
exception applies. Additionally, DHS policy always has specified that 
if the information would be used for purposes other than removal, it 
could be shared with national security and law enforcement agencies, 
including ICE and CBP, and provided examples of such non-enforcement 
purposes, including for assistance in the consideration of a DACA 
request, to identify or prevent fraudulent claims, for national 
security purposes, or for the investigation or prosecution of a 
criminal offense. But this policy does not limit (and has never 
limited) ICE or CBP's access to information indicating that an 
individual has DACA where ICE or CBP needs such information in order to 
ensure that it does not take inappropriate enforcement action against 
the individual.
    DHS proposes to codify this policy that has governed the use of 
information provided by DACA requestors since the beginning of 
DACA.\322\
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    \322\ See proposed 8 CFR 236.23(e).
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E. Section 236.24--Severability

    Deferred action is at its core an act of forbearance from removal 
granted by DHS to noncitizens who are a low priority for enforcement 
action. According to statute, regulation, and longstanding practice, 
the Secretary also may, as an act of discretion, authorize employment 
for such individuals, enabling them to support themselves and their 
families while in the United States. During the period of deferred 
action, such individuals have no legal immigration status but are 
considered ``lawfully present'' for the specific purposes of 8 CFR 
1.3(a)(4)(vi) and do not accrue ``unlawful presence'' for purposes of 
the inadmissibility grounds at INA sec. 212(a)(9). For the reasons 
described above, DHS believes that its authority to implement each of 
these three aspects or consequences of deferred action in the proposed 
regulation is well-supported in law and practice and should be upheld 
in any legal challenge. DHS also believes that its exercise of its 
authority reflects sound policy.
    However, in the event that any portion of the proposed rule is 
declared invalid, DHS intends that the various aspects of lawful 
presence for DACA recipients be severable. For example, if a court were 
to find unlawful (1) the provision of employment authorization for DACA 
recipients, (2) the pause on accrual of unlawful presence for DACA 
recipients, or (3) the provision of lawful presence for these 
noncitizens under 8 CFR 1.3(a)(4)(iv), or some combination thereof, DHS 
still would intend the remaining features of the policy to stand. 
Likewise, DHS proposes that employment authorization for DACA 
recipients would be severable from lawful presence as well as 
forbearance from removal. DHS is including a provision in the proposed 
regulatory text to that effect.
    DHS believes that a forbearance-only enforcement discretion policy 
is also viable, although not preferred for the reasons expressed above. 
While lawful presence and employment authorization are important to the 
DACA policy's overall success for DHS, as well as to DACA recipients 
and their communities, DHS believes that any DACA rule should not be 
struck down in its entirety so long as the forbearance policy is found 
lawful.\323\ As the Supreme Court noted in Regents, forbearance is the 
DACA policy's ``defining feature,'' offering DACA recipients an 
important measure of assurance, one that is important in itself. 
Neither employment authorization nor lawful presence is categorically 
required for the forbearance portion of the proposed rule to serve a 
meaningful purpose.\324\ Even without the proposed rule or a DACA 
policy, individuals who meet the DACA guidelines are unlikely to be 
high enforcement priorities, although as discussed elsewhere DHS 
believes that there are significant benefits to both the Department and 
DACA recipients to codifying the policy choices behind that low-
priority status and accompanying forbearance and providing a process 
for such individuals to affirmatively come forward to provide the 
Government with necessary information to complete background checks and 
otherwise conduct necessary vetting.
---------------------------------------------------------------------------

    \323\ See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 683 
(1987) (``Unless (1) it is evident that the Legislature would not 
have enacted those provisions which are within its power, 
independently of that which is not, the invalid part [of a statute] 
may be dropped if (2) what is left is fully operative as a law.''); 
K-Mart Corp. v. Cartier, 486 U.S. 281 (1988) (applying similar test 
to regulatory severability provision).
    \324\ 140 S. Ct. at 1911.
---------------------------------------------------------------------------

    DHS believes that it is in the interests of both DACA recipients 
and the nation as a whole for the noncitizens granted deferred action 
under the proposed rule to be able to work lawfully and be treated as 
lawfully present (in the narrow sense explained here) during the period 
of deferred action. Employment authorization in particular allows DACA 
recipients to contribute more fully to their communities while 
supporting themselves and their families, many of whom are U.S. 
citizens. But a forbearance-only rule still would have significant 
advantages and be worthwhile in itself, in that it would allow DACA 
recipients to have a measure of assurance that they are indeed low 
priorities for enforcement and are unlikely to be removed while 
enforcement action is deferred. This alone could justify the continued 
implementation of the policy. Likewise, so long as the forbearance 
aspect of the policy is in effect, employment authorization without 
lawful presence, or lawful presence without employment authorization, 
would be justified on both legal and policy grounds and could be 
implemented effectively by the Department.\325\
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    \325\ See Section IV.A above for a discussion of fees.
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F. Section 236.25--No Private Rights

    Consistent with the rule's purpose as an exercise of the 
Secretary's enforcement discretion, DHS proposes to include a section 
specifically providing that this rule is not intended to and does not 
supplant or limit otherwise lawful activities of DHS or the Secretary, 
and is not intended to and does not create any rights, substantive or 
procedural, enforceable at law by any party in any matter, civil or 
criminal.\326\ The proposed inclusion of a disclaimer is consistent 
with other DHS regulations governing immigration enforcement \327\ and 
provides appropriate notice to the public of the intended effect of 
these regulations.
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    \326\ Proposed 8 CFR 236.25.
    \327\ See 8 CFR 287.12.
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V. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to 
assess the costs and benefits of available regulatory alternatives and, 
to the extent permitted by law, to proceed only if the benefits justify 
the costs. They also direct agencies to select regulatory approaches 
that maximize net benefits while giving consideration, to the extent 
appropriate and consistent with law, to values that are difficult or 
impossible to quantify, including equity, human dignity, fairness, and 
distributive impacts. In particular, E.O. 13563 emphasizes the 
importance of not only quantifying both costs and benefits, reducing 
costs, harmonizing rules, and promoting flexibility, but also 
considering equity, fairness, distributive impacts, and

[[Page 53773]]

human dignity. The latter values are highly and particularly relevant 
here.
    This proposed rule is designated a ``significant regulatory 
action'' that is economically significant since it is estimated the 
proposed rule would have an annual effect on the economy of $100 
million or more, under section 3(f)(1) of E.O. 12866. Accordingly, OMB 
has reviewed this proposed regulation.* * *
1. Summary of Major Provisions of the Regulatory Action
    This proposed rule would preserve and fortify DHS's DACA policy for 
the issuance of deferred action to certain young people who were 
brought to the United States many years earlier as children, who have 
no current lawful immigration status, and who are generally low 
enforcement priorities. The proposed rule would codify the following 
provisions of the DACA policy from the Napolitano Memorandum and 
longstanding USCIS practice:
     Deferred Action. The proposed rule would codify the 
definition of deferred action as a temporary forbearance from removal 
that does not confer any right or entitlement to remain in or re-enter 
the United States, and that does not prevent DHS from initiating any 
criminal or other enforcement action against the DACA requestor at any 
time.
     Threshold Criteria. The proposed rule would codify the 
following longstanding threshold criteria: That the requestor must 
have: (1) Come to the United States under the age of 16; (2) 
continuously resided in the United States from June 15, 2007, to the 
time of filing of the request; (3) been physically present in the 
United States on both June 15, 2012, and at the time of filing of the 
DACA request; (4) not been in a lawful immigration status on June 15, 
2012, as well as at the time of request; (5) graduated or obtained a 
certificate of completion from high school, obtained a GED certificate, 
currently be enrolled in school, or be an honorably discharged veteran 
of the Coast Guard or Armed Forces of the United States; (6) not been 
convicted of a felony, a misdemeanor described in Sec.  236.22(b)(6) of 
the proposed rule, or three or more other misdemeanors not occurring on 
the same date and not arising out of the same act, omission, or scheme 
of misconduct, or otherwise pose a threat to national security or 
public safety; and (7) been born on or after June 16, 1981, and be at 
least 15 years of age at the time of filing, unless the requestor is in 
removal proceedings, has a final order of removal, or a voluntary 
departure order. The proposed rule also would codify that deferred 
action under DACA may be granted only if USCIS determines in its 
discretion that the requestor meets the threshold criteria and merits a 
favorable exercise of discretion.
     Procedures for Request, Terminations, and Restrictions on 
Information Use. The proposed rule would codify the procedures for 
denial of a request for DACA or termination of a grant of DACA, the 
circumstances that would result in the issuance of an NTA or RTI, and 
the restrictions on use of information contained in a DACA request for 
the purpose of initiating immigration enforcement proceedings.
    In addition to proposing the retention of longstanding DACA policy 
and procedure, the proposed rule includes the following changes:
     Filing Requirements. The proposed rule would modify the 
existing filing process and fees for DACA by making the request for 
employment authorization on Form I-765, Application for Employment 
Authorization, optional and charging a fee of $85 for Form I-821D, 
Consideration of Deferred Action for Childhood Arrivals. DHS would 
maintain the current total cost to DACA requestors who also file Form 
I-765 of $495 ($85 for Form I-821D plus $410 for Form I-765).
     Employment Authorization. The proposed rule would codify 
DACA-related employment authorization for deferred action recipients in 
a new paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph 
would not constitute any substantive change in current policy: It would 
continue to specify that the noncitizen must have been granted deferred 
action and must establish economic need to be eligible for employment 
authorization.
     Automatic Termination of Employment Authorization. The 
proposed rule would automatically terminate employment authorization 
granted under 8 CFR 274.12(c)(33) upon termination of a grant of DACA.
     ``Lawful Presence.'' Additionally, the proposed rule 
reiterates USCIS' longstanding codification in 8 CFR 1.3(a)(4)(vi) of 
agency policy that a noncitizen who has been granted deferred action is 
considered ``lawfully present''--a term that does not confer authority 
to remain in the United States--for the discrete purpose of authorizing 
the receipt of certain benefits under that regulation. The proposed 
rule also would reiterate longstanding policy that a noncitizen who has 
been granted deferred action does not accrue ``unlawful presence'' for 
purposes of INA sec. 212(a)(9).
2. Summary of Costs and Benefits of the Proposed Rule
    The proposed rule would result in new costs, benefits, and 
transfers. To provide a full understanding of the impacts of DACA, DHS 
considers the potential impacts of this proposed rule relative to two 
baselines. The No Action Baseline represents a state of the world under 
the DACA program; that is, the program initiated by the guidance in the 
Napolitano Memorandum in 2012 and prior to the July 16, 2021 district 
court decision. For reasons explained in Section V.A.4.a.(1) below, 
this baseline does not directly account for the July 16, 2021 district 
court decision. The second baseline is the Pre-Guidance Baseline, which 
represents a state of the world before the issuance of the Napolitano 
Memorandum (i.e., a state of the world where the DACA program does not 
exist and has never existed). If the goal is to understand the 
consequences of the DACA program, the Pre-Guidance Baseline is the more 
useful point of reference.
    Table 3 provides a detailed summary of the proposed provisions and 
their potential impacts relative to the No Action Baseline. 
Additionally, Table 4 provides a detailed summary of the proposed 
provisions and their potential impacts relative to the Pre-Guidance 
Baseline.
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    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 5 and Table 6 present the prepared accounting 
statements showing the costs, benefits, and transfers associated with 
this proposed regulation relative to the No Action Baseline and the 
Pre-Guidance Baseline, respectively.\328\ The primary estimate of 
annualized cost savings of the proposed rule relative to the No Action 
baseline is approximately $51.4 million, discounted at 3 percent, or 
$51.9 million, discounted at 7 percent. The primary estimate represents 
an average of the minimum estimate of cost savings, $0, and the high 
estimate, $102.7 million, discounted at 3 percent, or $103.7 million, 
discounted at 7 percent.
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    \328\ See OMB Circular A-4, https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.

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BILLING CODE 9111-97-C
3. Background and Purpose of the Rule
    The INA \329\ generally charges the Secretary with the 
administration and enforcement of the immigration and naturalization 
laws of the United States.\330\ The INA further authorizes the 
Secretary to ``establish such regulations; prescribe such forms of 
bond, reports, entries, and other papers; issue such instructions; and 
perform such other acts as he deems necessary for carrying out his 
authority under the provisions of'' the INA.\331\ In the Homeland 
Security Act of 2002, Congress also provided that the Secretary ``shall 
be responsible for . . . [e]stablishing national immigration

[[Page 53783]]

enforcement policies and priorities.'' \332\ The Homeland Security Act 
also provides that the Secretary, in carrying out their authorities, 
must ``ensure that the overall economic security of the United States 
is not diminished by efforts, activities, and programs aimed at 
securing the homeland.'' \333\
---------------------------------------------------------------------------

    \329\ Public Law 82-414, 66 Stat. 163 (as amended).
    \330\ INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also 
vests certain authorities in the President, Attorney General, and 
Secretary of State, among others. See id.
    \331\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
    \332\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 
(codified at 6 U.S.C. 202(5)).
    \333\ 6 U.S.C. 111(b)(1)(F).
---------------------------------------------------------------------------

    The Secretary proposes in this rule to establish specified 
guidelines for considering requests for deferred action submitted by 
certain individuals who came to the United States many years ago as 
children, consistent with the Napolitano Memorandum described above. As 
with the 2012 DACA policy, this proposed rule would serve the 
significant humanitarian and economic interests animating and 
engendered by the DACA policy, with respect to the population covered 
by that policy. In addition, the proposed rule would preserve not only 
DACA recipients' substantial reliance interests, but also those of 
their families, schools, employers, faith groups, and communities.\334\ 
The proposed rule also would help appropriately focus the Department's 
limited immigration enforcement resources on threats to national 
security, public safety, and border security where they are most 
needed.
---------------------------------------------------------------------------

    \334\ See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 
1914 (2020) (Regents) (``DACA recipients have `enrolled in degree 
programs, embarked on careers, started businesses, purchased homes, 
and even married and had children, all in reliance' on the DACA 
program. The consequences of the rescission, respondents emphasize, 
would `radiate outward' to DACA recipients' families, including 
their 200,000 U.S. citizen children, to the schools where DACA 
recipients study and teach, and to the employers who have invested 
time and money in training them. In addition, excluding DACA 
recipients from the lawful labor force may, they tell us, result in 
the loss of $215 billion in economic activity and an associated $60 
billion in federal tax revenue over the next ten years. Meanwhile, 
States and local governments could lose $1.25 billion in tax revenue 
each year.'' (internal citations omitted)).
---------------------------------------------------------------------------

4. Cost-Benefit Analysis
    DHS estimates the potential impacts of this proposed rule relative 
to two baselines. The first baseline is a No Action Baseline that 
represents a state of the world in which the DACA program would be 
expected to continue under the Napolitano Memorandum guidance. For 
reasons explained in Section V.A.4.a.(1), this baseline does not 
directly account for the July 16, 2021 district court decision. The 
second baseline is a Pre-Guidance Baseline, which represents a state of 
the world before the guidance in the Napolitano Memorandum, where the 
DACA program does not exist and has never existed. The Pre-Guidance 
Baseline is included in this analysis in accordance with OMB Circular 
A-4, which directs agencies to include a pre-statutory baseline in an 
analysis if substantial portions of a rule may simply restate statutory 
requirements that would be self-implementing, even in the absence of 
the regulatory action.\335\ In this case, the DACA program was 
implemented through DHS and USCIS guidance. DHS has not performed a 
regulatory analysis on the regulatory costs and benefits of that 
guidance previously and, therefore, includes a Pre-Guidance Baseline in 
this analysis for purposes of clarity and completeness. In other words, 
notwithstanding that the program does in fact exist, we present the 
Pre-Guidance Baseline to provide a more informed picture on the overall 
impacts of the program since its inception, while at the same time 
recognizing that many of these impacts have been realized already. DHS 
notes that the Pre-Guidance Baseline analysis also can be used to 
better understand the state of the world under the July 16, 2021 
district court decision, should the stay of that decision ultimately be 
lifted.
---------------------------------------------------------------------------

    \335\ See OMB Circular A-4.
---------------------------------------------------------------------------

    The rest of this cost-benefit analysis section is organized to 
present the impacts of this proposed rule relative to the No Action 
Baseline first and then relative to the Pre-Guidance Baseline second. 
In each baseline section of the analysis, we begin by laying out the 
assumptions and estimates used in calculating any costs, benefits, and 
transfers of this proposed rule.
a. No Action Baseline
(1) Population Estimates and Other Assumptions
    The proposed rule would affect certain individuals who came to the 
United States many years ago as children, who have no current lawful 
immigration status, and who are generally low enforcement priorities. 
DHS currently allows eligible individuals to request an exercise of 
discretion, called ``deferred action,'' on a case-by-case basis 
according to certain criteria outlined in the Napolitano Memorandum. 
Individuals may request deferred action under this policy, known as 
DACA. The proposed rule would affect individuals seeking deferred 
action under the DACA policy.
    DHS recognizes a growing literature on the impacts of DACA that 
identifies potentially DACA-eligible noncitizens based on age and 
length of time in the United States. This approach to estimating the 
population affected by this proposed rule estimates the total number of 
people who are potentially eligible for DACA and then predicts the 
proportion of those people who actually will request DACA in the 
future. Given that no widely available, national microdata survey 
exists that reports on the immigration status of the foreign-born 
population, the subpopulation potentially eligible for DACA must be 
estimated by other means. In general, analysts typically estimate the 
size of the DACA-eligible population using the so-called residual 
method, in which the total foreign-born population is estimated based 
on the U.S. Census Bureau's American Community Survey (ACS), Current 
Population Survey, American Time Use Survey, Survey of Income and 
Program Participation, or some other sample, and the lawfully present 
foreign-born population is estimated based on DHS administrative 
records or a mix of DHS administrative records and logical rules based 
on foreign-born demographic characteristics, with the difference 
between these estimates (i.e., the residual) being the unauthorized 
population.\336\ With this approach, the demographic characteristics of 
the underlying survey data may further be used to identify the portion 
of the unauthorized population that would be potentially eligible for 
DACA, although some factors, such as education, criminal history, and 
discretionary determinations may not be accounted for in such 
estimates.
---------------------------------------------------------------------------

    \336\ See, e.g., OIS Report (``DHS estimates that 11.4 million 
unauthorized immigrants were living in the United States on January 
1, 2018, roughly unchanged from 11.4 million on January 1, 2015''); 
Capps (2020) (``As of 2018 . . . there were 11 million unauthorized 
immigrants in the country, down slightly from 12.3 million in 
2007.'').
---------------------------------------------------------------------------

    The Migration Policy Institute (MPI) estimates an eligible DACA 
population of 1.7 million, including the currently active 
population.\337\ Historical DHS administrative data between FY 2012 and 
FY 2021 show a total of around 1 million initial DACA program 
requests.\338\ Thus, MPI's estimate implies a remaining DACA-eligible 
population of around 700,000 people.
---------------------------------------------------------------------------

    \337\ Migration Policy Institute, Back on the Table: U.S. 
Legalization and the Unauthorized Immigrant Groups that Could Factor 
in the Debate (Feb. 2021), https://www.migrationpolicy.org/research/us-legalization-unauthorized-immigrant-groups.
    \338\ Source: DHS/USCIS/OPQ July 2021.
---------------------------------------------------------------------------

    DHS has two concerns with adopting this approach to estimate the 
number of future DACA applicants. First, as analysts who use the 
residual method observe, the approach is complex and highly sensitive 
to specific modeling assumptions. In a DHS Office of

[[Page 53784]]

Immigration Statistics (OIS) report, ``Estimates of the Unauthorized 
Immigrant Population Residing in the United States: January 2015-
January 2018,'' OIS stated that ``estimates of the unauthorized 
population are subject to sampling error in the ACS and considerable 
non-sampling error because of uncertainty in some of the assumptions 
required for estimation [of the unauthorized population].'' \339\ In 
the chapter on weighting and estimation in the latest ACS design and 
methodology report,\340\ the U.S. Census Bureau details the many 
complex adjustments applied to produce estimates of the population by 
sex, age, race, Hispanic origin, and number of household units, 
clarifying that ``[t]he ACS estimates are based on a probability 
sample, and will vary from their true population values due to sampling 
and non-sampling error.'' \341\ A rigorous analysis by sociologists and 
statisticians of the external validity of available methods used to 
impute unauthorized status in Census survey data concluded that
---------------------------------------------------------------------------

    \339\ See OIS Report at 10.
    \340\ See U.S. Census Bureau, American Community Survey Design 
and Methodology (January 2014), Chapter 11: Weighting and 
Estimation, https://www2.census.gov/programs-surveys/acs/methodology/design_and_methodology/acs_design_methodology_ch11_2014.pdf.
    \341\ Id. at 16.

it is not possible to spin straw into gold. All approaches that we 
tested produced biased estimates. Some methods failed in all 
circumstances, and others failed only when the join observation 
condition was not met, meaning that the imputation method was not 
informed by the association of unauthorized status with the 
dependent variable.\342\
---------------------------------------------------------------------------

    \342\ See Jennifer Van Hook, et al., Can We Spin Straw into 
Gold? An Evaluation of Immigrant Legal Status Imputation Approaches, 
Demography 52(1): 329-54, at 330.

    In light of these modeling challenges, it is possible that a new 
estimate of the DACA-eligible population based on the residual method 
would systematically under- or overestimate the authorized immigrant 
population, which would in turn lead to systematic but unknown under- 
or overestimation of the residual subpopulation.\343\
---------------------------------------------------------------------------

    \343\ In Pope (2016), see section 5, ``Empirical method.'' See 
also George J. Borjas and Hugh Cassidy, The wage penalty to 
undocumented immigration, Lab. Econ. 61, art. 101757 (2019), https://scholar.harvard.edu/files/gborjas/files/labourecon2020.pdf 
(hereinafter Borjas and Cassidy (2019)). In section 2, ``Imputing 
undocumented status in microdata files,'' the authors state that, 
``[i]n the absence of administrative data on the characteristics of 
the undocumented population, it is not possible to quantify the 
direction and magnitude of any potential bias,'' and in footnote 2 
they describe DHS's assumed correction for sample bias. See also 
Catalina Amuedo-Dorantes and Francisca Antman, Schooling and Labor 
Market Effects of Temporary Authorization: Evidence from DACA, J. of 
Population Econ. 30(1): 339-73, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5497855/pdf/nihms866067.pdf. In section III.B, 
``Capturing Undocumented Immigrants and DACA Applicants,'' the 
authors describe a potential effect of a limitation in the data 
relied upon as follows: ``As such, some may be concerned that the 
control group may be made up of individuals who immigrated with the 
purpose of getting an educational degree in the United States, as is 
the case with F1 and J1 visa holders.''
---------------------------------------------------------------------------

    A second concern about using the residual method to estimate the 
number of future DACA applicants is that, even if DHS accurately 
estimates the total DACA-eligible population, the Department does not 
have a ready methodology to predict how many potentially DACA-eligible 
individuals will actually request DACA in the future. Given the nature 
of the DACA program, its population, political factors, the challenging 
legal history, and characteristics of the active DACA and DACA-eligible 
populations, including varying personal circumstances and expectations, 
it is uncertain and would be complex to predict how many potentially 
eligible noncitizens may request DACA even if a census of the remaining 
DACA-eligible population existed.
    Therefore, in the context of this proposed rule, DHS relies instead 
on the limited administrative data USCIS collects from individuals who 
have requested DACA over the past several years, as described later in 
this analysis. The Department nonetheless acknowledges potential 
limitations to the population estimate methodologies that USCIS uses in 
this analysis, and it emphasizes that USCIS remains open to modifying 
its approach or using alternative approaches at a later stage in the 
rulemaking. DHS particularly welcomes public comment and data from 
demographers, statisticians, researchers, and the public on available 
data sources and the validity, risks, and advantages to incorporating 
these methods in a final rule.
    To provide a framework for our baseline population estimates, we 
start by first presenting historical USCIS data on the active DACA 
population and then presenting historical data on DACA program request 
receipts. These data provide a sense of historical participation in the 
program and insights into any trends. They also allow us to make 
certain assumptions in estimating a potential future active DACA 
population who would enjoy the benefits of this policy and contribute 
potential transfers to other populations as well as in estimating 
potential future DACA program request receipts (i.e., the population 
who would incur the costs associated with applying to the program). We 
therefore proceed by presenting first the historical active DACA 
population and our estimates of a potential future active DACA 
population, and then the historical volume of DACA program request 
receipts and our estimates of this potential future population.
    Before presenting the historical and projected populations 
associated with this proposed rule, we first identify certain 
historical time periods of interest to this analysis. Historically, the 
2012 and then 2017 DACA-related memoranda have shaped the level of 
participation in the DACA program. The 2012 Napolitano Memorandum 
initiated the program, and the 2017 Duke Memorandum halted new 
requests.\344\ As such, DHS identifies three periods of interest: A 
surge period, FY 2012-FY 2014, where initial requests were high 
compared to later years; a stable period, FY 2015-FY 2017, where 
initial requests were slowing, renewal requests were leveling off, and 
the overall active DACA-approved population was stabilizing; and a 
cool-off period, FY 2018-FY 2020, where initial requests dramatically 
decreased, the active DACA-approved population started to decline, and 
most requests were for renewals.\345\
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    \344\ As discussed above, the Duke Memorandum rescinded the DACA 
policy, allowing for a brief wind-down period in which a limited 
number of renewal requests would be adjudicated, but all initial 
requests would be rejected. Duke Memorandum at 4-5. In the 
litigation that followed, the Duke Memorandum was enjoined in part, 
such that DHS was required to adjudicate renewal requests as well as 
``initial'' requests from individuals who had been granted DACA 
previously but did not qualify for the renewal process. See Regents 
v. DHS; Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 
2018). The effect of the Duke Memorandum, along with these court 
orders and the Wolf Memorandum also discussed above, was that 
individuals who were granted DACA at some point before September 5, 
2017, remained able to request DACA, while those who had never 
before received DACA were not able to do so until the Wolf 
Memorandum was vacated in December 2020. See Batalla Vidal v. Wolf, 
No. 16-cv-4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020).
    \345\ DHS believes it is likely that the initial surge in DACA 
requests reflects a rush of interest in the new program, and that 
the slowdown in 2014-2017 simply reflects the fact that many of the 
eligible and interested noncitizens requested DACA shortly after it 
became available. It is also possible that there was a decline in 
interest due to the uncertainty caused by the Texas I litigation 
described above, which began in 2014. The limits on requests 
described above, supra note 344, along with changes in the national 
environment, likely account for much of the ``cooling off'' after 
2017.
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    Table 7 presents historical data on the volume of DACA recipients 
who were active as of September 30th of each year. For clarity, 
``active'' is defined as those requestors who have an approved Form

[[Page 53785]]

I-821D and I-765 in the relevant USCIS database. The approval can be 
either an initial or a renewed approval. Additionally, we do not need 
specificity or further breakdown of these data into initials and 
renewals to project this active DACA population and calculate 
associated monetized benefits and transfers based on the methodology 
employed in this RIA. Whether initial participants in the program or 
renewal participants, both categories of participants will have been 
issued an EAD that could be used to participate in the labor 
market.\346\ Therefore, the annual cumulative totals of the active DACA 
population will suffice for estimating the quantified and monetized 
benefits and transfers of this proposed rule that stem from the 
potential labor market earnings of the DACA population with an EAD.
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    \346\ Please see the Labor Market Impacts section of this RIA 
for discussion and analysis of labor force participation as well as 
discussion of the possibility that some DACA recipients might choose 
not to work despite having employment authorization, or that some 
DACA recipients might opt out of requesting an EAD given the choice 
as this rulemaking is proposing.
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BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP28SE21.028

    On July 16, 2021, the U.S. District Court for the Southern District 
of Texas issued a decision enjoining USCIS from approving new DACA 
requests.\347\ At this time, it remains uncertain what impact this 
injunction will have on total projected initial requests for FY 2021. 
Projecting if and when USCIS might begin to approve initial requests 
again absent this rulemaking presents added difficulty. Consequently, 
the No Action baseline used for this RIA employs the assumption that 
the historical trends in the active DACA population outlined remain a 
reasonable and useful indication of the trend in the future over the 
period of analysis. Table 8 presents DHS's estimates for the active 
DACA population for FY 2021-FY 2031. Given the motivation and scope of 
this proposed rule, DHS assumes that upon the implementation of a final 
rule the DACA program will be characterized by relatively more 
stability, meaning the yearly active DACA population will not continue 
to decrease as it did in FY 2018-FY 2020. Therefore, in our projections 
of the active DACA population, DHS used the average annual growth rate 
of the stable period, FY 2015-FY 2017, which was 3.6174%, and 
multiplied it by the current year cumulative totals to obtain the next 
year's estimated active DACA population. In other words, the values in 
Table 8 grow at an annual rate of

[[Page 53786]]

3.6174%. These estimates will be used later when calculating the 
monetized benefits and transfers of this proposed rule.
---------------------------------------------------------------------------

    \347\ As of July 20, 2021, USCIS ELIS and CLAIMS 3 data show 
89,605 initial requests have been accepted at a lockbox in FY 2021.
---------------------------------------------------------------------------

    DHS notes that although this methodology for projecting a future 
active DACA population has important advantages (including 
transparency, reproducibility, and a clear nexus to historical program 
data), it also has some potential limitations. For instance, the 
methodology assumes that the active DACA population again will grow at 
the same rate that it did in FY 2015-FY 2017, just a few years after 
the Napolitano Memorandum was first issued. The methodology does not 
account, for instance, for the fact that when the Duke Memorandum was 
issued, the growth rate had been declining, or for the fact that 
potential DACA requestors will stop ``aging in'' to the policy in June 
2022, when the youngest possible requestor reaches 15 years of age. DHS 
does not believe there necessarily will be a precipitous decline in the 
growth rate of DACA requestors after new requestors stop ``aging in'' 
in 2022. A substantial portion of initial DACA requests have come from 
individuals who applied long after they were eligible. And some 
individuals may become newly eligible after June 2022, upon satisfying 
the educational or military service requirement for the first time. DHS 
has included data in the rulemaking docket regarding DACA requestors' 
age at time of filing. DHS welcomes comments regarding whether and how 
DHS might incorporate these data into the population estimate 
methodology for the final rule.
    Similarly, the active DACA population projections do not directly 
capture the possibility that there will be a surge of request receipts 
following publication of a final rule (or in the wake of the vacatur of 
the Wolf Memorandum, which already has occurred), followed by a slower 
growth rate in later years. However, USCIS notes that projecting a 
surge in application receipts does not necessarily imply a surge in the 
active DACA population. The levels of approvals, renewals, and 
noncitizens remaining in or exiting the program can vary. For example, 
there could be delays in processing requests caused by the surge of new 
applications (assuming that USCIS maintains current staff levels) or by 
other events, noncitizens could exit the program at higher rates than 
before, and approval rates could change relative to historical trends. 
As mentioned previously, a continuation of the injunction of approvals 
of new DACA requests would curtail initial requests. As noted above, 
DHS welcomes comments on its methodology for projecting the active DACA 
population, as well as all other aspects of this RIA.
[GRAPHIC] [TIFF OMITTED] TP28SE21.029

    Next, we present the population that will be used when calculating 
the monetized costs of this proposed rule. Table 9 presents historical 
data on the numbers of DACA program receipts. This population incurred 
the cost of requesting DACA. The population is made up of initial and 
renewal requestors, both of whom face similar costs, such as 
application fees,\348\ time burdens, and opportunity costs. For 
clarity, this table represents intake and processing data and does not 
say anything about how many requests were approved. DHS does not need 
that level

[[Page 53787]]

of detail to estimate the monetized costs of this proposed rule. We 
only need total receipts to estimate the monetized costs of this 
proposed rule.
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    \348\ The proposed fee does not differentiate between initial 
and renewal receipt costs. The estimated full cost reflects a 
weighted average of April 2020 to March 2021 initial and renewal 
workload receipt data.
[GRAPHIC] [TIFF OMITTED] TP28SE21.030

    To project total DACA program receipts, DHS makes use of the 
historical information from Table 9 as follows. In doing so, the 
intention is to capture a possible surge effect in initial requests, a 
stabilization effect through the renewals, and then a steady decline in 
initial requests as the newly DACA-eligible population might dwindle 
over time because individuals stop ``aging in'' after June 2022. We 
first calculate the percentage of initials in the previously defined 
surge years FY 2012-FY 2014 out of the total over period FY 2012-FY 
2017, to account for a similar possibility in our projections, which we 
call a surge rate.\349\ This rate is 77.76%. Second, DHS calculates the 
average initial requests over the stable period of FY 2015-FY 2017, 
which is 70,868. Third, we calculate the average annual rate of growth 
in initial requests over FY 2015-FY 2017, which is -29.08%. Fourth, DHS 
calculates the average number of renewal requests over FY 2015-FY 2020, 
which is 349,166. We chose FY 2015-FY 2020 for this calculation due to 
the relatively stable nature of historical renewal requests. The 
intention is to capture a possible surge effect in initial requests, a 
stabilization effect through the renewals, and then a steady decline in 
initial requests as the DACA-eligible population might dwindle over 
time.
---------------------------------------------------------------------------

    \349\ Calculation: FY 2012-FY 2014 initials total = 743,331; FY 
2012-FY 2017 initials total = 955,936; initials surge rate = 
(743,331/955,936) * 100 = 77.76%.
---------------------------------------------------------------------------

    Table 10 presents the projected volume of DACA program request 
receipts. DHS estimates a surge component in initials over FY 2021-FY 
2022. As stated, these projections make no adjustment for the uncertain 
impacts of the July 16, 2021 injunction on initial requests. To do so, 
we first calculate the total number of historic initials over the 
stable period FY 2015-FY 2017, which is 212,605. We then multiply this 
number by the surge rate of 77.76% to estimate a potential surge in our 
projections of 165,321 initial requests in the first two projected 
years, FY 2021-FY 2022. DHS then divides this number in two to estimate 
a surge in initial requests for FY 2021 and FY 2022, which is 82,660. 
Adding to this number the average number of historic initial requests 
of 70,868 yields a total (surge) number of 153,529 initial requests for 
FY 2021 and FY 2022. Starting with FY 2024, DHS applies the historic FY 
2015-FY 2017 growth rate of -29.08% to initial requests for the rest of 
the projected years.\350\
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    \350\ For example: FY 2024 = FY 2023 * (1-29.08%), which yields 
70,868 * (1-0.2908) = 50,254.
---------------------------------------------------------------------------

    The renewals in FY 2023-FY 2024 capture this surge as the 
historical average number of renewals of 349,166 plus 153,529. Recall, 
DACA approved participants can renew their deferred action every 2 
years. Adding total initials and renewals for every fiscal year then 
yields a total number of requests that will be used in estimating the 
monetized costs of this proposed rule.
    As with DHS's projection methodology for the active DACA 
population, DHS acknowledges potential limitations associated with the 
methodology used to project requests. For instance, although the 
methodology is transparent, reproducible, and has a clear nexus to 
historical program data, the methodology assumes that the ``surge 
rate'' for DACA requests following publication of this proposed rule 
would mirror the surge rate that followed issuance of the Napolitano 
Memorandum. There are reasons to support such an assumption, including 
a potential backlog of demand following the Duke Memorandum and 
subsequent guidance and ongoing litigation. But there are also reasons 
to question it, such as the potential that demand was exhausted in the 
years prior to the Duke Memorandum's issuance such that any ``surge'' 
in applications would consist primarily of applications from 
individuals who turned 15 after the issuance of the Duke Memorandum.

[[Page 53788]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.031

BILLING CODE 9111-97-C
    As of July 2021, DHS administrative data for quarters 2 and 3 of FY 
2021 show that there were 89,701 initial DACA requests and 302,985 
renewal DACA requests pending.\351\ These data include requests filed 
during periods in which DHS did not accept most initial DACA requests 
due to ongoing litigation and subsequent policy changes.\352\ In this 
RIA's projections, it is assumed that initial DACA requests would be 
accepted without interruptions from any legal rulings on the program in 
FY 2021 and all other subsequent projected fiscal years. In the absence 
of these restrictions on initial requests, DHS's projection for FY 2021 
tracks with the observed trend in the most recent FY 2021 
administrative data.
---------------------------------------------------------------------------

    \351\ Source: DHS/USCIS/OPQ July 2021.
    \352\ See Section III.B above for litigation history, including 
Regents, 140 S. Ct. 1891 (2020), and Texas II, No. 1:18-cv-00068, 
2021 WL 3025857 (S.D. Tex. July 16, 2021).
---------------------------------------------------------------------------

    In sum, while population estimates in this NPRM are consistent with 
the overall MPI population estimate, this RIA relies on historical 
application data to estimate future DACA applications rather than 
estimating the overall DACA-eligible population and then further 
estimating the share of the population likely to apply for DACA in the 
future. While both approaches face methodological challenges, the 
Department has no reason to believe the residual-based methodology 
would yield a more accurate estimate. At the same time, the current 
approach based on historical application data offers an especially 
transparent and easily reproducible estimation methodology. The 
Department invites public comment on the ability to improve accuracy 
and validity of unbiased estimates of the active population projections 
using other methodologies in the final rule.
(2) Forms and Fees
    Individuals seeking deferred action under the DACA program must 
file Form I-821D in order to be considered for approval. Currently, all 
individuals filing Form I-821D to request deferred action under DACA, 
whether for the initial consideration for or a renewal of DACA, also 
must file Form I-765 and Form I-765WS (Form I-765 Worksheet) and submit 
biometrics. Submission of Forms I-821D, I-765, and I-765WS and 
biometrics together is considered to comprise a complete DACA request. 
Additionally, certain DACA requestors choose to have a representative, 
such as a lawyer, prepare and file their DACA request.\353\ If that is 
the case, a Form G-28 must accompany a complete DACA request.\354\
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    \353\ An internal OPQ data request reveals that 44 percent of 
requestors chose to have a preparer. We use this percentage 
breakdown in subsequent cost calculations.
    \354\ Individuals retained to help a requestor prepare and file 
their DACA request must submit a Form G-28, Notice of Entry of 
Appearance as Attorney or Accredited Representative, to provide 
information about their eligibility to act on behalf of the 
requestor (see 8 CFR 292.4(a)).
---------------------------------------------------------------------------

    Currently, the fees associated with a DACA request are as follows: 
For Form I-821D, $0; for Form I-765, $410; for Form I-765WS, $0; for 
Form G-28, $0; and for biometrics collection, $85. This yields a total 
current fee of $495, with or without the submission of a Form G-28. DHS 
believes this is a reasonable proxy for the Government's costs of 
processing and vetting these forms

[[Page 53789]]

when filed together.\355\ However, DHS expects there would be little 
savings in the Government's costs of processing and vetting for 
applicants who choose not to apply for an EAD. Therefore, fees for 
these applicants are not anticipated to cover the Government's costs 
for these applicants since they would be paying only $85.
---------------------------------------------------------------------------

    \355\ USCIS Office of the Chief Financial Officer (OCFO) 
analysis.
---------------------------------------------------------------------------

(3) Wage Assumptions
    The estimated wage rate of DACA requestors and the total 
compensation rate of those hired to prepare and file DACA requests are 
used as proxies for the opportunity cost of time in the calculation of 
costs. The estimated wage rate of the requestors also is used to 
estimate the benefits of income that accrue to those requestors who 
participate in the labor market through the grant of employment 
authorization. In the following paragraphs, DHS explains how it 
estimates the preparers' and requestors' compensation rates. All 
compensation estimates are in 2020 dollars.
    A DACA request can be prepared on behalf of the applicant. In this 
proposed rule, we assume that a preparer has similar knowledge and 
skills necessary for filing a DACA request as an average lawyer would 
for the same task. Based on Bureau of Labor Statistics (BLS) data, DHS 
estimates an average loaded wage, or compensation, for a preparer of 
$103.81.\356\
---------------------------------------------------------------------------

    \356\ DHS assumes the preparers with similar knowledge and 
skills necessary for filing DACA requests have average wage rates 
equal to the average lawyer wage of $71.59 per hour. Source: BLS, 
Occupational Employment and Wage Statistics, Occupational Employment 
and Wages, May 2020, 23-1011 Lawyers, https://www.bls.gov/oes/2020/may/oes231011.htm#nat.
    The benefits-to-wage multiplier is calculated as follows: (total 
employee compensation per hour)/(wages and salaries per hour) = 
$38.60/$26.53 = 1.4549 = 1.45 (rounded). See BLS, Economic News 
Release (Mar. 2021), Employer Cost for Employee Compensation--
December 2020, Table 1. Employer Costs for Employee Compensation by 
ownership, https://www.bls.gov/news.release/archives/ecec_03182021.htm. Total compensation rate calculation: (wage rate) 
* (benefits multiplier) = $71.59 * 1.45 = $103.81.
---------------------------------------------------------------------------

    To estimate the DACA requestor population's hourly opportunity cost 
of time, DHS uses data from the U.S. Census Bureau and USCIS. We 
assume, for the purposes of this analysis, that the profile of the 
DACA-approved requestors matches that of the population at large; that 
is, the average DACA-approved requestor values education and employment 
in a similar way as the average person in the population at large and 
in that age group. This allows DHS to use other government agencies' 
official data, such as the Census Bureau's, to estimate DACA-approved 
requestor compensation rates and other economic characteristics given 
the absence of DHS-specific DACA-approved population economic data, but 
DHS welcomes comments about other methods for estimating compensation 
rates and economic characteristics.
    USCIS data on the active DACA population \357\ lend themselves to 
delineation by age group: 15 to 25, 26 to 35, and 36 to 39.\358\ In an 
effort to provide a more focused estimate of wages, DHS takes this 
information into account. We estimate these age groups to represent 43 
percent, 51 percent, and 6 percent, respectively, out of this total 
population. Next, DHS seeks to estimate an average compensation rate 
that accounts for income variations across these age groups. We first 
obtain annual average Consumer Price Index information for years 2012 
through 2020.\359\ We set 2020 as the base year and then calculate 
historical average annual incomes (in 2020 dollars) based on U.S. 
Census Bureau historical income data.\360\ To do this, DHS converts the 
annual mean incomes in the Census data (2019 dollars) into 2020 dollars 
and then averages the period 2012-2019 to obtain average full-time 
salary information for the population at large for these age groups as 
$18,389, $45,529, and $60,767, respectively.\361\ DHS recognizes that 
not all DACA recipients work full time or have jobs that offer 
additional benefits beyond the offered wage. The employment and school 
attendance status of DACA recipients is varied and includes being in 
school only, working full or part time, or being unemployed. Moreover, 
some DACA recipients have additional compensation benefits such as 
health insurance whereas others do not. Additionally, DACA recipients 
could hold entry-level jobs as well as more senior positions in 
companies. Some are employed in industries that generally pay higher 
wages and some are employed in industries where wages are relatively 
lower. To account for this wide range of possibilities, DHS takes a 
weighted average of the salaries presented above using the distribution 
of the age groups as weights, divided by 26 pay periods and 80 hours 
per pay period (the typical biweekly pay schedule), loading the wage to 
account for benefits, to arrive at an average hourly DACA requestor 
compensation of $24.20.\362\
---------------------------------------------------------------------------

    \357\ Source: Count of Active DACA Recipients by Month of 
Current DACA Expiration as of Dec. 31, 2020. DHS/USCIS/OPQ ELIS and 
CLAIMS 3 Consolidated (queried Jan. 2021).
    \358\ We assume this distribution remains constant throughout 
the periods of analysis for both baselines as new DACA recipients 
enter and previous DACA recipients exit the program. The current 
(age) requirements of the DACA program does not prohibit us from 
making this assumption.
    \359\ Source: BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. city average, all items, index averages, 
https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf.
    \360\ Source: U.S. Census Bureau, Historical Income Tables: 
People, Table P-10. Age--People (Both Sexes Combined) by Median and 
Mean, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-income-people.html.
    \361\ The Census data delineate age groups as 15 to 24, 25 to 
34, and 35 to 44. DHS assumes the age groups identified in the USCIS 
data follow the same pattern on average as the age groups in the 
Census data (e.g., the Census income information by age group also 
represents the income information in the age groups identified in 
the USCIS data).
    \362\ Calculation: $24.20 = ((($18,389 * 43%) + ($45,529 * 51%) 
+ ($60,767 * 6%))/26)/80 * 1.45.
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(4) Time Burdens
    Calculating any potential costs associated with this proposed rule 
involves accounting for the time that it takes to fill out the required 
forms, submit biometrics collection, and travel to and from the 
biometrics collection site. The Paperwork Reduction Act (PRA) section 
of the instructions for Form I-821D estimates a response time of 3 
hours for reviewing instructions and completing and submitting the 
form: For Form I-765, 4.75 hours; for Form I-765WS, 0.5 hours; and for 
Form G-28, 0.83 hours.
    In addition to the biometrics services fee, the requestor will 
incur the costs to comply with the biometrics submission requirement as 
well as the opportunity cost of time for traveling to an USCIS 
Application Support Center (ASC), the mileage cost of traveling to an 
ASC, and the opportunity cost of time for submitting his or her 
biometrics. While travel times and distances vary, DHS estimates that a 
requestor's average roundtrip distance to an ASC is 50 miles and takes 
2.5 hours on average to complete the trip.\363\ Furthermore, DHS 
estimates that a requestor waits an average of 70 minutes or 1.17 
(rounded, 70 divide by 60 minutes) hours for service and to have his or 
her biometrics collected at an ASC according to the PRA section of the 
instructions for Form I-765, adding up to a total biometrics-related 
time burden of 3.67 hours. In addition to the opportunity cost of time 
for providing biometrics and traveling to an ASC, requestors will incur 
travel costs related to biometrics collection. The per-requestor cost 
of travel related to biometrics collection is about $28.00

[[Page 53790]]

per trip, based on the 50-mile roundtrip distance to an ASC and the 
General Services Administration's (GSA) travel rate of $0.56 per 
mile.\364\ DHS assumes that each requestor travels independently to an 
ASC to submit his or her biometrics.
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    \363\ See Final Rule, Employment Authorization for Certain H-4 
Dependent Spouses, 80 FR 10284 (Feb. 25, 2015), and Final Rule, 
Provisional and Unlawful Presence Waivers of Inadmissibility for 
Certain Immediate Relatives, 78 FR 536, 572 (Jan. 3, 2013).
    \364\ See the U.S. General Services Administration website for 
privately owned vehicle mileage reimbursement rates, https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-povmileage-reimbursement-rates.
---------------------------------------------------------------------------

(5) Costs of the Proposed Regulatory Action
    The provisions of this proposed rule would not impose any new costs 
on the potential DACA requestor population if requesting both deferred 
action through Form I-821D and applying for an EAD using Form I-765 and 
Form I-765WS (though this rule would change the composition of these 
fees). The proposed rule would not implement any new forms to file, nor 
would it change the estimated time burden for completing and filing any 
of the required forms to request deferred action, and thus the total 
DACA request cost would not change from the current amount if 
requestors continued to file all Forms I-821D, I-765, and I-765WS. With 
this proposed rule, DHS seeks to (1) make it optional to file Form I-
765 to apply for employment authorization; (2) eliminate the $85 
biometrics fee when filing Form I-765; and (3) implement a new $85 fee 
to file Form I-821D. Requestors still would be required to submit 
biometrics information, but that process would be included as part of 
the requirements for filing Form I-821D. Requestors who both request 
DACA and apply for employment authorization would incur the same total 
costs as they currently incur.
    Nevertheless, the provisions of the proposed rule would make 
requesting an EAD optional when filing for DACA. DHS recognizes the 
possibility that some requestors might forgo applying for employment 
authorization using Form I-765 and opt only to request deferred action 
by filing Form I-821D. For example, this category could include DACA 
requestors who are currently enrolled in school, who perhaps have 
scholarships or other types of aid, and who may not need additional 
financial support (e.g., young DACA requestors, including high school 
students, who are supported by their parents or guardians). Therefore, 
such individuals may choose not to participate in the labor market. DHS 
acknowledges that such requestors might choose to save the $410 fee to 
file Form I-765. As a result, requestors who forgo seeking employment 
authorization would incur fewer costs when requesting DACA. These 
requestors would be required to submit Form I-821D and pay the proposed 
$85 form fee only. Therefore, DHS conducts a sensitivity analysis to 
account for the possibility that some DACA requestors likely would not 
seek employment authorization.
    In order to identify the proportion of the DACA requestor 
population who might forgo applying for employment authorization, DHS 
uses data from BLS on labor force participation rates.\365\ BLS data 
show historical and projected labor force participation rates (as a 
percent of total working-age population) by age group. Assuming the 
DACA requestors' population profiles (such as education and employment 
status) match those of the U.S. population at large, DHS combines the 
BLS data on labor force participation by age group with previously 
presented USCIS data on the distribution of ages for the approved DACA 
requestor population (see Wage Assumptions section) to calculate an 
age-group-adjusted weighted average. Based on this methodology, DHS 
estimates that the rate of the potential DACA requestor population who 
may opt in and apply for employment authorization is 70 percent and the 
rate of those who may opt out and not apply for employment 
authorization is 30 percent.\366\ Under this sensitivity analysis using 
a 70/30 percent population split, the entire population would file Form 
I-821D to request deferred action and would pay an $85 fee, while only 
70 percent of the population of those who file Form I-821D to request 
deferred action would file Form I-765 and Form I-765WS to request an 
EAD. DHS recognizes that the 70-percent estimate does not directly 
account for the potential additional benefits of an EAD, which may 
result in a greater percentage of DACA requestors also requesting an 
EAD. DHS describes these potential additional benefits in the analysis 
below, at Section V.A.4.b.(6), regarding the benefits of the proposed 
rule relative to the Pre-Guidance Baseline.
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    \365\ Source: BLS, Employment Projections (Sept. 2020), Civilian 
labor force participation rate by age, sex, race, and ethnicity, 
Table 3.3. Civilian labor force participation rates by age, sex, 
race, and ethnicity, 1999, 2009, 2019, and projected 2029, https://www.bls.gov/emp/tables/civilian-labor-force-participation-rate.htm.
    \366\ BLS labor force calculated averages by age group, United 
States: 16-to-24-year-old average is 53.6 percent (average of FY 
2019 [55.9%] and FY 2029 [51.3%]); 25-to-34-year-old average is 82.4 
percent (average of FY 2019 [82.9%] and FY 2029 [81.9%]); and 34-to-
44-year-old average is 82.15 percent (average of FY 2019 [82.1%] and 
FY 2029 [82.2%]). USCIS age group distribution of the active DACA-
approved population: 16 to 24 years old is 43 percent; 25 to 34 
years old is 51 percent; and 35 to 44 years old is 6 percent. 
Calculations: Age group adjusted weighted average is (53.6% * 43%) + 
(82.4% * 51%) + (82.15% * 6%) = 70.001% = 70% (rounded) of the DACA 
applicant population who potentially will opt in to apply for 
employment authorization. Thus, it follows, (1-70.001%) = 29.999% = 
30% (rounded) of the DACA requesting population who potentially will 
opt out of applying for employment authorization.
---------------------------------------------------------------------------

    If 100 percent of the estimated population applies for an EAD, the 
costs of the proposed rule relative to the No Action Baseline are zero 
since currently all DACA requestors filing Form I-821D must file Forms 
I-765 and I-765WS and request employment authorization. Using the 
estimated requestors' wage rate ($24.20 per hour), the preparers' total 
compensation rate ($103.81 per hour), and the percentage of requestors 
who use a preparer (44%), we find that applicants would face the same 
total numbers of fees, the same forms time burdens, and the same 
biometric travel costs. The quantified and monetized costs of the 
proposed rule relative to the No Action Baseline would be zero.
    By contrast, if 70 percent of DACA requestors apply for an EAD 
based on the provision of this proposed rule that makes such 
application optional, there would be cost savings. In particular, there 
would be cost savings to DACA requestors in terms of opportunity costs 
of time in no longer having to fill out forms to apply for an EAD. For 
example, some requestors, including renewal requestors, do not need an 
EAD. Such requestors would have the option to save the costs associated 
with submitting Form I-765 and Form I-765WS to apply for employment 
authorization relative to the No Action Baseline where they are 
required to submit these forms as part of the application. They now 
have the option not to do so.
    The potential cost savings are calculated as the difference between 
the total costs associated with 100 percent of the population applying 
for an EAD and the total costs associated with 70 percent of the 
population applying for an EAD, less the $410 fee for Form I-765 
multiplied by 30% of the DACA requestor population estimates. In Table 
11, DHS then subtracts the $410 fee from the cost savings estimate, 
because in this analysis we account for the distributional effect of a 
lower fee as a transfer rather than a cost saving. (We acknowledge that 
in this scenario the requestor and USCIS avoid the costs of filing and 
processing the Form I-765, respectively. For this proposed rule, this 
fee will not be considered a cost saving as there are no estimated 
government resources saved. The time it takes to

[[Page 53791]]

adjudicate Form I-765 with Form I-821D is negligible compared to 
adjudicating only Form I-821D.\367\)
---------------------------------------------------------------------------

    \367\ USCIS OCFO analysis.
---------------------------------------------------------------------------

    Table 11 presents the estimates used in calculating any potential 
cost savings.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP28SE21.032

(6) Benefits of the Proposed Regulatory Action
    There are quantified and monetized benefits as well as unquantified 
and qualitative benefits associated with the DACA program under the 
Napolitano Memorandum and this proposed rule. The quantified and 
monetized benefits stem from the income earned by DACA recipients who 
have been granted an EAD and participate in the labor market. DHS 
calculates the quantified and monetized benefits associated with this 
proposed rule by taking the sum of the approved initial and renewal 
populations (i.e., those who have been granted an EAD) and multiplying 
it by an estimated yearly compensation total of $50,341, which is the 
previously estimated compensation rate of $24.20, multiplied by 80 
hours in a pay period, times 26 pay periods per year. As previously 
discussed, DHS assumes only 70 percent of DACA recipients will choose 
to work, so the total population projections presented previously will 
be adjusted to reflect this (population * 70 percent). Given the 
previously delineated provisions of this proposed rule and the stated 
assumptions, there are no new quantified and monetized benefits 
relative to the No Action Baseline. In the No Action Baseline, 70 
percent of DACA recipients will work, which is the same percentage of 
people who would work under this proposed rule.
    The unquantified and qualitative benefits stem from the forbearance 
component of an approved DACA request, and they are discussed in 
significantly greater detail in the analysis below, at Section 
V.A.4.b.(6), regarding the benefits of the proposed rule relative to 
the Pre-Guidance Baseline. These benefits are generally the same under 
this proposed rule and under the No Action Baseline.
(7) Transfers of the Proposed Regulatory Changes
    The provisions of this proposed rule could produce transfers 
relative to the No Action Baseline. The proposed rule would change the 
fee for Form I-821D from $0 to $85 and the fee for biometrics from $85 
to $0. These changes move in opposite directions, cancelling each other 
out. However, the full cost of adjudication to USCIS for Form I-821D, 
including biometrics adjudication costs, is estimated at $332.\368\ 
Table 12 presents the pre- and post-rulemaking fees to applicants with 
and without filing Form I-765, along with the estimated pre- and post-
rulemaking costs to the Government for processing and vetting each 
application.
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    \368\ USCIS OCFO analysis.

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[[Page 53792]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.033

    For the 30% of the projected population who are assumed to file 
Form I-821D without filing and paying the fee for Form I-765, DHS 
subtracts the new fee of $85 from the full cost of $332 for an 
estimated $247 transfer payment from USCIS to each DACA requestor who 
chooses to request only deferred action by filing Form I-821D without 
Form I-765. This would result in a transfer payment from USCIS to DACA 
requestors as requestors filing only the Form I-821D would now pay less 
in filing fees than the current filing fee cost for both Forms I-821D 
and I-765. Table 13 presents the estimates of these potential 
transfers.

[[Page 53793]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.034

b. Pre-Guidance Baseline
    As noted above, the period of analysis for this baseline also 
includes the time period FY 2012-FY 2020, which includes the time 
period during which DHS has operated under the Napolitano Memorandum, 
to provide a more informed picture of the total impact of the DACA 
program. We proceed by taking into account the DACA population from 
this time period (given by the historical data of Table 7 and Table 9), 
but applying all the assumptions (for example, on wages and age 
distributions) as presented before. In essence, in this baseline, we 
assume the DACA program never existed but instead of starting the 
analysis in FY 2021 we start the analysis from FY 2012 spanning to FY 
2031, analyzing the potential effects of the proposed rule's provisions 
starting in FY 2012. As a result, the Pre-Guidance baseline condition 
is similar to the state of the world under the July 16, 2021 district 
court decision, should the stay of that decision ultimately be lifted.
(1) Population Estimates and Other Assumptions
    For the Pre-Guidance Baseline, the total population estimates 
include all the projected populations described earlier in this 
analysis for FY 2021-FY 2031, in Table 8 and Table 10, while also 
adding the historical population numbers presented in Table 7 and Table 
9 for FY 2012-FY 2020. To conserve space and time, we will not repeat 
those numbers here.
(2) Forms and Fees
    All the forms and fees remain the same in the Pre-Guidance 
Baseline, except that Form I-821D has a fee of $85 and there is no fee 
charged for biometrics collection.
(3) Wage Assumptions
    For the Pre-Guidance Baseline, the wage assumptions remain as 
presented previously with an overall average compensation for the DACA 
requestors of $24.20 and a total compensation rate for preparers of 
$103.81.
(4) Time Burdens
    For the Pre-Guidance Baseline, all the time burdens remain as 
presented previously.
(5) Costs of the Proposed Regulatory Changes
    The Pre-Guidance Baseline represents a world without DACA; that is, 
all baseline impacts are $0. DHS calculates the proposed rule's impacts 
relative to this baseline of $0 costs, benefits, and transfers. As 
presented previously, we maintain the assumption that only 70 percent 
of requestors will apply for an EAD given that this proposed rule 
allows this option. This will serve as a lower bound estimate of costs. 
Given the population estimates, form fees, time burdens, wage 
assumptions, biometrics fee, travel costs, and biometrics time burden 
information, DHS presents next the application costs for time period FY 
2012-FY 2031. The cost per requestor in a scenario where all DACA 
requestors (100%) apply for an EAD is $1,138.36. The cost per requestor 
in a scenario where only 70 percent of DACA requestors apply for an EAD 
is $922.07. Multiplying these per-requestor costs with the population 
estimates yields total costs. The following tables present our 
quantified and monetized cost estimates.

[[Page 53794]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.035

    The DACA program also creates cost savings for DHS that are not 
simple to quantify and monetize. For instance, the DACA program 
simplifies many encounters between DHS and certain noncitizens, 
reducing the burden upon DHS of vetting, tracking, and potentially 
removing DACA recipients. Cost savings vary considerably depending on 
the circumstances of the encounter; the type of enforcement officer 
involved; relevant national security, border security, and public 
safety considerations; and any intervening developments in the 
noncitizen's situation and equities. In addition, some cost savings 
that historically have been considered as part of deferred action 
decision making are inherently difficult to quantify, such as costs 
associated with taking enforcement action without first considering 
``the likelihood of ultimately removing the alien, the presence of 
sympathetic factors that could adversely affect future cases or 
generate bad publicity . . . , and whether the alien had violated a 
provision that had been given high enforcement priority.'' \369\
---------------------------------------------------------------------------

    \369\ See AADC, 525 U.S. at 484 n.8 (citing 16 C. Gordon, S. 
Mailman, and S. Yale-Loehr, Immigration Law and Procedure Sec.  
242.1 (1998)).
---------------------------------------------------------------------------

(6) Benefits of the Proposed Regulatory Changes
    There are quantified and monetized benefits and unquantified and 
qualitative benefits associated with this proposed rule. The quantified 
and monetized benefits stem from the income earned by DACA recipients 
who have received an EAD and choose to participate in the labor market. 
By participating in the labor market, DACA recipients are increasing 
the production of the economy and earning wages, which in turn leads to 
additional consumption. DHS acknowledges the possibility that certain 
DACA recipients might have participated in the informal labor market 
and earned wages prior to being granted lawful presence and work 
authorization under the DACA program. For this segment of the DACA-
recipient population, DHS could be overestimating the quantified 
benefits in the form of earned income directly attributable to 
receiving work authorization. Adjusting the quantified benefits to show 
only income attributable to work authorization under DACA would entail 
estimating the difference between the compensation these individuals 
might expect to earn in the informal labor market and the compensation 
estimates presented in

[[Page 53795]]

this analysis, multiplied by the estimate of this population.\370\
---------------------------------------------------------------------------

    \370\ See Borjas and Cassidy (2019).
---------------------------------------------------------------------------

    For example, Borjas and Cassidy (2019) examine the wage 
differential between informal and formal work for immigrant 
populations. They apply their analysis of a wage differential, or 
``wage penalty,'' to an estimated proxy of the DACA-eligible 
population, suggesting that the wage earned as a documented noncitizen 
would be, on average, 4.5% to 6.8% higher than the wage of an 
individual working as an undocumented noncitizen. This phenomenon also 
is discussed in a recently published piece on the economic benefits of 
unauthorized immigrants gaining permanent legal status, which points 
out that there exist per-hour income differentials when comparing 
unauthorized immigrant workers to native-born and legal immigrant 
workers.\371\ In contrast, in a survey of 1,157 DACA recipients fielded 
by Wong (2020), respondents age 25 and older (n = 882) reported wage 
increases of 129% ($27.17/$11.89 = 2.285) since receiving DACA.\372\ If 
done properly, such an adjustment would yield a more accurate estimate 
of the quantified benefits attributable to the receipt of work 
authorization under DACA.\373\ DHS welcomes public comment regarding 
wage differentials and wage penalties of unauthorized and authorized 
workers, including differences in wages among those immigrant workers 
participating in formal or informal employment.
---------------------------------------------------------------------------

    \371\ See White House Council of Economic Advisors, The Economic 
Benefits of Extending Permanent Legal Status to Unauthorized 
Immigrants (Sept. 17, 2021), https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants.
    \372\ See Wong (2020). DHS notes that the intervening years of 
experience could explain some of this growth rate.
    \373\ Borjas and Cassidy (2019) and Wong (2020) suggest that the 
additional earnings from wages presented in this proposed rule, for 
this segment of the DACA population, would have to be adjusted by 
this formula: NPRM estimated DACA wage--(NPRM DACA estimated wage/(1 
+ wage differential %)). This adjustment multiplied by this 
population yields a more accurate estimate of the quantified and 
monetized benefits of this proposed rule.
---------------------------------------------------------------------------

    Other empirical and conceptual issues are also challenging here. In 
addition to the difficulty of identifying the correct adjustment to the 
quantified benefits due to wages presented in this analysis, the 
Department recognizes that the lack of work authorization under DACA 
could push immigrants to seek informal work with greater hazards and 
vulnerabilities to exploitation. Seeking and engaging in that informal 
work would involve welfare losses (hedonic as well as economic).
    In addition, DHS is considering whether to make an additional 
modification to the estimated benefits in order to help ensure DHS is 
not overestimating the quantified benefits directly attributable to 
receiving DACA. For those who entered the labor market after receiving 
work authorization and began to receive paid compensation from an 
employer, counting the entire amount received by the employer as a 
benefit likely results in an overestimate. Even without working for 
wages, the time spent by an individual has value. For example, if 
someone performs childcare, housework, or other activities without paid 
compensation, that time still has value. Consequently, a more accurate 
estimate of the net benefits of receiving work authorization under the 
proposed rule would take into account the value of time of the 
individual before receiving work authorization. For example, the 
individual and the economy would gain the benefit of the DACA 
recipients entering the workforce and receiving paid compensation but 
would lose the value of their time spent performing non-paid 
activities. Due to the wide variety of non-paid activities an 
individual could pursue without DACA work authorization, it is 
difficult to estimate the value of that time. DHS is requesting public 
comment on how to best value the non-paid time of those who were not 
part of the authorized workforce without DACA. One possible method is 
to use 50% of wages as a proxy of the value for this non-paid time. DHS 
requests public comment on ways to best estimate the value of this non-
paid time.
    DHS welcomes public comment and/or data on all these issues, 
including, for example, data regarding wages earned by the DACA-
eligible or DACA-approved populations both with and without work 
authorization, which DHS may be able to use in order to adjust the 
benefit estimates presented in Table 14 in a final rule.
    For benefit calculations, DHS makes use of the previously estimated 
average annual compensation of DACA EAD recipients of $50,341 
multiplied by 70 percent of each the population data in Table 7 and the 
population estimates in Table 8. Recall, DHS estimated that 70 percent 
of DACA recipients will choose to participate in the labor market, 
potentially earning income. This earned income is presented here as the 
quantified and monetized benefit of this proposed rule because of 
recipients having an EAD and working. The benefit (from income 
earnings) per applicant is $35,238.77 ($50,341 * 70%), assuming that 
these jobs were added to the economy and that DACA workers were not 
substituted for other workers. Multiplying this per-applicant benefit 
by the population projections presented earlier in Table 7 and Table 8 
and subtracting the portion of income that is a transfer from the DACA 
population to the Federal Government yields the results in Table 
15.\374\
---------------------------------------------------------------------------

    \374\ The portion of total potential income earned that is a 
payroll tax transfer from the DACA working population to the Federal 
Government is 7.65%. Multiplying the benefits numbers in Table 15 by 
[1/(1-0.0765)] yields the pre-tax overall total potential income 
earned. Section V.A.4.b.(7) discusses more details on the 
calculations and transfer estimates.

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[[Page 53796]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.036

    DHS notes that to whatever extent a DACA recipient's wages 
otherwise would be earned by another worker, the benefits in Table 15 
could be overstated (see Section V.A.4.d for additional analysis).
    The unquantified and qualitative benefits stem in part from the 
forbearance component of an approved DACA request. The DACA requestors 
who receive deferred action under this proposed rule would enjoy 
additional benefits relative to the Pre-Guidance Baseline. We will 
describe these next along with any other qualitative impacts this 
proposed rule creates relative to the Pre-Guidance Baseline.
    Some of the benefits associated with the DACA program accrue to DHS 
(as discussed above), whereas others accrue to the noncitizens who are 
granted deferred action and employment authorization, and still others 
accrue to family members, employers, universities, and others. 
Quantification and monetization of many of these benefits is unusually 
challenging. E.O. 13563 states that

each agency is directed to use the best available techniques to 
quantify anticipated present and future benefits and costs as 
accurately as possible. Where appropriate and permitted by law, each 
agency may consider (and discuss qualitatively) values that are 
difficult or impossible to quantify, including equity, human 
dignity, fairness, and distributive impacts.\375\
---------------------------------------------------------------------------

    \375\ 76 FR 3821 (Jan. 21, 2011).

    It is essential to emphasize that the goals of this regulation 
include protection of equity, human dignity, and fairness, and that DHS 
is keenly alert to distributive impacts. DHS also recognizes that while 
some of those qualitative benefits are difficult or impossible to 
measure, it is essential that they be considered. Under the proposed 
regulation, deferred action may be available to people who came to the 
United States many years ago as children--often as young children. As 
discussed above, in DHS's view, scarce resources are not best expended 
with respect to people who meet the relevant criteria. In addition, DHS 
believes forbearance of removal for such individuals furthers values of 
equity, human dignity, and fairness.
    It is not simple to quantify and monetize the benefits of 
forbearance for those who obtain deferred action and their family 
members. These challenging-to-quantify benefits include (1) a reduction 
of fear and anxiety for DACA recipients and their families,\376\ (2) an 
increased sense of acceptance and

[[Page 53797]]

belonging to a community, (3) an increased sense of family security, 
and (4) an increased sense of hope for the future. Some of these 
benefits are connected with equity and fairness, mentioned in E.O. 
13563; others are plausibly connected with human dignity, also 
mentioned in that E.O. Again, these benefits are difficult to 
quantify.\377\ It might be tempting to try to compare the benefits of 
the reduced risk of deportation to other benefits from risk reduction, 
such as the reduction of mortality and morbidity risks. But any such 
comparison would be highly speculative, and DHS does not believe that 
it can monetize the total value of these specific benefits to DACA 
recipients. A possible (and very conservative) lower bound estimate 
could be the cost of requesting DACA; that is, it would be reasonable 
to assume that the DACA-approved population values these benefits at 
least as much as the cost of requesting DACA. DHS does not speculate on 
an upper bound but concludes that it could well be a substantially 
large sum, much larger than the lower bound; the benefits of items (1), 
(2), (3), and (4) above are likely to be high. DHS invites comments on 
the challenges of quantification here and on how they might be met.
---------------------------------------------------------------------------

    \376\ Osea Giuntella, et al., Immigration policy and immigrants' 
sleep. Evidence from DACA, 182 J. of Econ. Behav. & Org. 1 (Feb. 
2021).
    \377\ On some of the conceptual and empirical issues, see 
Matthew Adler, Fear Assessment: Cost-Benefit Analysis and the 
Pricing of Fear and Anxiety, 79 Chicago-Kent L. Rev. 977 (2004).
---------------------------------------------------------------------------

    DHS notes as well that DACA recipients could qualify for 
discretionary advance parole, which would allow them to travel outside 
of the United States during the duration of their deferred action and 
be allowed to return to the United States.\378\ In addition to the 
benefits of travel itself, DHS recognizes that some DACA recipients who 
were not previously lawfully admitted or paroled into the United States 
and are otherwise eligible to adjust status to that of a lawful 
permanent resident (such as through employment or family relationships) 
may satisfy the ``inspected and admitted or paroled'' requirement of 
the adjustment of status statute at 8 U.S.C. 1255(a) upon their return 
to the United States through advance parole. However, DHS may grant 
advance parole to any individual who meets the statutory criteria with 
or without lawful status or deferred action, and a grant of advance 
parole alone does not create a pathway to lawful status or citizenship. 
Regardless, DHS is also unable to quantify the value of advance parole 
to the DACA population. DHS welcomes public comments on these specific 
benefits and, in particular, on whether and how quantitative estimates 
might be operationalized.
---------------------------------------------------------------------------

    \378\ See 8 U.S.C. 1182(d)(5), 8 CFR 212.5, authorizing parole 
on a case-by-case basis for urgent humanitarian reasons or 
significant public benefit.
---------------------------------------------------------------------------

    Employment authorization and receipt of an EAD grants additional 
benefits to the DACA-approved population and their families. An EAD can 
serve as official personal identification, in addition to serving as 
proof that an individual is authorized to work in the United States for 
a specific time period. In certain States, depending on policy choices 
made by the State, an EAD also could be used to obtain a driver's 
license or other government-issued identification. Similar to the 
benefits that are derived from being granted deferred action, DHS is 
unable to estimate the total value of benefits from having official 
personal identification or a driver's license for individuals in the 
DACA population. DHS invites public comments on whether and how 
quantitative estimates might be used for benefits derived from being 
granted employment authorization and receiving an EAD, such as serving 
as official personal identification, or as a conduit to receiving 
additional tangential benefits like a driver's license.
    The fee structure in the proposed rule may result in some 
additional qualitative benefits relative to the No Action Baseline, and 
may result in increased benefits relative to the Pre-Guidance Baseline, 
as compared to the existing fee structure. Providing the option to 
forgo requesting employment authorization when requesting deferred 
action using Form I-821D, and thus pay only the accompanying $85 fee, 
could incentivize noncitizens to request DACA by reducing some of the 
financial barriers to entry for individuals who potentially qualify for 
deferred action, but do not need (or yet need) employment 
authorization, and desire the benefits associated with deferred action. 
Such individuals otherwise may be discouraged from requesting DACA due 
to the current $495 cost to file. For example, it is possible that some 
persons who are in school, receive scholarships, or have other types of 
school or non-school aid, and who value the benefits from deferred 
action, might find the lower cost of the program ($85 without 
employment authorization) more attractive than the current cost to 
request DACA ($495) and be encouraged to do so. Additionally, the 
proposed rule allows the current DACA-approved population to continue 
enjoying the advantages of the policy and have the option to request 
renewal of DACA in the future without also requesting a renewal of 
employment authorization.
    Finally, as discussed above, the proposed rule reiterates USCIS' 
longstanding codification in 8 CFR 1.3(a)(4)(vi) of agency policy that 
a noncitizen who has been granted deferred action is considered 
``lawfully present''--a specialized term of art that does not confer 
lawful status or the right to remain in the United States--for the 
discrete purpose of authorizing the receipt of certain Social Security 
benefits consistent with 8 U.S.C. 1611(b)(2). The proposed rule also 
reiterates longstanding policy that a noncitizen who has been granted 
deferred action does not accrue ``unlawful presence'' for purposes of 
INA sec. 212(a)(9) (imposing certain admissibility limitations for 
noncitizens who departed the United States after having accrued certain 
periods of unlawful presence). These benefits as well are difficult to 
quantify in part due to the time-limited nature of the benefit, the age 
of the relevant population, and the various ways in which accrual of 
unlawful presence might ultimately affect an individual based on their 
immigration history. DHS welcomes comments on ways to evaluate these 
benefits.
(7) Transfers of the Proposed Regulatory Changes
    Relative to the Pre-Guidance Baseline, the proposed rule would 
result in tax transfers to different levels of government, assuming 
that DACA recipients who have employment perform work that is new to 
the economy rather than substituting their labor for the labor of 
workers already employed in the economy. It is difficult to quantify 
tax transfers because individual tax situations vary widely (as do 
taxation rules imposed by different levels of government), but DHS 
estimates the potential increase in transfer payments to Federal 
employment tax programs, namely Medicare and Social Security, which 
have a combined payroll tax rate of 7.65 percent (6.2 percent and 1.45 
percent, respectively).\379\ With both the employee and employer paying 
their respective portion of Medicare and Social Security taxes, the 
total estimated increase in tax transfer payments from employees and 
employers to Medicare and Social Security is 15.3 percent. This 
analysis relies on this total tax rate to calculate these transfers 
relative to the Pre-Guidance Baseline. DHS takes this rate and 
multiplies it by the total (pre-

[[Page 53798]]

tax income earnings) benefits,\380\ which yields our transfer estimates 
for this section. Table 16 presents these estimates.
---------------------------------------------------------------------------

    \379\ Internal Revenue Service, ``Topic No. 751 Social Security 
and Medicare Withholding Rates,'' https://www.irs.gov/taxtopics/tc751 (last updated Mar. 10, 2021).
    \380\ The benefit (from pre-tax income earnings) per applicant 
is $35,238.77 ($50,341 * 70%). Multiplying this benefit per 
applicant by the population projections presented earlier in Table 7 
and Table 8 yields total pre-tax earnings. Multiplying the 15.3% 
payroll tax rate to this pre-tax total yields the Table 16 
estimates.
[GRAPHIC] [TIFF OMITTED] TP28SE21.037

    Part of the DACA requestor population may choose only to request 
deferred action through Form I-821D. If this were to happen, this would 
result in a transfer from USCIS to those DACA requestors as requestors 
filing only the Form I-821D (proposed fee: $85) would now pay less in 
filing fees than the current filing fee cost for both Forms I-821D and 
I-765. As previously discussed, the cost to USCIS of adjudicating Form 
I-821D is $332. The difference of $247 multiplied by 30% of the DACA 
requestor population yields the potential transfers if 30% of DACA 
requestors apply for deferred action only. Table 17 presents the 
estimates of these potential transfers.

[[Page 53799]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.038

BILLING CODE 9111-97-C
c. Costs to the Federal Government
    The INA provides for the collection of fees at a level that will 
ensure recovery of the full costs of providing immigration adjudication 
and naturalization services by DHS, including administrative costs and 
services provided without charge to certain applicants and 
petitioners.\381\ Generally, DHS establishes USCIS fees according to 
the estimated cost of adjudication based on its relative adjudication 
burden and use of USCIS resources. Fees are established at an amount 
that is necessary to recover these assigned costs, such as clerical, 
officer, and managerial salaries and benefits, plus an amount to 
recover unassigned overhead (e.g., facility rent, information 
technology equipment and systems) and immigration benefits provided 
without a fee charge. DHS established the current fee for Form I-765, 
Application for Employment Authorization, in its FY 2016/FY 2017 USCIS 
Fee Rule at a level below the estimated full cost of adjudication but 
raised other fees to provide for full cost recovery to USCIS overall. 
DHS proposes no change to the $410 fee for Form I-765 in this NPRM and 
will review the fee in the context of an overall adjustment to the 
USCIS fee schedule. However, in instances where DHS determines it to be 
in the public interest, DHS establishes fees that are below the 
estimated full cost and charges other benefit requestors more to 
provide for the recovery of USCIS' costs. As previously discussed, DHS 
has determined that it is in the public interest to hold the fee for 
Form I-821D, Consideration of Deferred Action for Childhood Arrivals, 
below the estimated full cost of adjudication. Consequently, if the 
primary fee proposal is finalized, the rule may result in the transfer 
of a portion of these estimated full costs of adjudication to the fee-
paying population. Moreover, another form affected by this proposed 
rule that currently does not charge a filing fee is Form I-765WS, I-765 
Worksheet, which DACA requestors must file with Form I-765. DHS notes 
the time necessary for USCIS to review the information submitted with 
each of these forms includes the time to adjudicate the underlying 
benefit request. DHS notes that the proposed rule may increase USCIS' 
costs associated with adjudicating immigration benefit

[[Page 53800]]

requests. Future adjustments to the fee schedule may be necessary to 
recover these additional operating costs and will be determined at 
USCIS' next comprehensive biennial fee review. DHS invites public 
comments on the potential impacts of these additional operating costs.
---------------------------------------------------------------------------

    \381\ See INA sec. 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

d. Labor Market Impacts
    The projected active DACA population of the proposed rule in the No 
Action Baseline section of the analysis suggests that about 16,391 new 
participants \382\ could enter the U.S. labor force in the first year 
of implementation of the proposed rule as compared to the number of 
DACA recipients in the labor market in FY 2020 (based on the 70% labor 
force participation rate presented earlier). This number increases 
annually at a growth rate of 3.6174%, reaching up to 23,384 new 
participants in the last year of analysis, FY 2031. As of 2020, there 
were an estimated 160,742,000 people in the U.S. civilian labor 
force.\383\ The aforementioned estimate of 16,391 new participants in 
the U.S. labor force in FY 2021 would represent approximately 0.0102% 
of the 2020 overall U.S. civilian labor force.\384\ Of course, as noted 
above, these figures likely represent an overestimate, insofar as some 
individuals otherwise would be engaged in informal employment.
---------------------------------------------------------------------------

    \382\ Calculation: (FY 2021 projected active DACA population-FY 
2020 projected active DACA population) * 0.70 = (670,693-647,278) = 
23,415 * 0.70 = 16,391.
    \383\ Source: BLS, Labor Force Statistics from the Current 
Population Survey, Household Data Annual Averages: Table 3. 
Employment status of the civilian noninstitutional population by 
age, sex, and race, https://www.bls.gov/cps/cpsaat03.htm.
    \384\ Calculation: (16,391/160,742,000) * 100 = 0.0102%.
---------------------------------------------------------------------------

    The top four States where current DACA recipients reside represent 
about 55 percent of the total DACA-approved population: California 
(29%), Texas (16%), Illinois (5%), and New York (4%).\385\ These States 
may have a slightly larger share of potentially additional DACA workers 
compared with the rest of the United States. Assuming the estimate for 
first year impacts could be distributed following the same patterns, 
DHS estimates the following potential impacts. California could receive 
approximately 4,753 (i.e., 29% * 16,391) additional workers in the 
first year of implementation; Texas 2,623 additional workers; Illinois 
820 additional workers; and New York 656 additional workers. To provide 
additional context, in April of 2021, California had a population of 
18,895,158 in the civilian labor force in February 2021, Texas had 
14,034,972, Illinois had 6,146,496, and New York had 9,502,491.\386\ As 
an example, the additional 4,753 workers who could be added to the 
Californian labor force in the first year after promulgation of this 
proposed rule would represent about 0.0252% of the overall California 
labor force.\387\ The potential impacts to the other States would be 
lower (e.g., for Texas, the impact would be about 0.0187%).
---------------------------------------------------------------------------

    \385\ Source: Count of Active DACA Recipients by Month of 
Current DACA Expiration as of Dec. 31, 2020. DHS/USCIS/OPQ ELIS and 
CLAIMS 3 Consolidated (queried Jan. 2021).
    \386\ Source: BLS, News Release, State Employment and 
Unemployment--May 2021, Labor Force Data Seasonally Adjusted: Table 
1. Civilian labor force and unemployment by state and selected area, 
seasonally adjusted, https://www.bls.gov/news.release/pdf/laus.pdf.
    \387\ Calculation: (4,753/18,895,158) x 100 = 0.0252%.
---------------------------------------------------------------------------

    As noted above, the analysis of the proposed rule relative to the 
Pre-Guidance Baseline entails consideration of effects going back to FY 
2012, when the program was introduced and the surge of new requestors 
occurred. Because the Napolitano Memorandum was released in June of 
2012, the FY 2012 September 30th count of 2,019 active DACA 
participants does not cover a full fiscal year; therefore, we add FY 
2012 and FY 2013 together, adjusting by the 70% labor market 
participation rate, for a count of new active DACA entrants in the U.S. 
labor market equal to 332,429. Applying this number to the U.S. labor 
market statistics, as in the No Action Baseline labor market analysis 
above, we estimate that this number of new entrants would represent 
about 0.2139% of the 2013 overall US. civilian labor force of 
155,389,000.\388\ As discussed in the preceding paragraph, for 
California, the new active DACA entrant population in FY 2012 and FY 
2013 would represent about 0.5102% of California's April 2021 labor 
force, 0.3790% of Texas's, 0.2704% of Illinois's, and 0.1399% of New 
York's. Again, these figures likely represent an overestimate, insofar 
as some individuals otherwise would be engaged in informal employment.
---------------------------------------------------------------------------

    \388\ Source: BLS, Labor Force Statistics from the Current 
Population Survey, Household Data Annual Averages: Table 1. 
Employment status of the civilian noninstitutional population, 1950 
to date, https://www.bls.gov/cps/cpsaat01.pdf.
    Calculation: (332,429/155,389,000) * 100 = 0.2139%.
---------------------------------------------------------------------------

    As noted above, the relative proportion of DACA recipients in any 
given labor market would depend on the number of active DACA recipients 
who choose to work and the size of the labor market at that time. In 
future years within the period of analysis, the number of DACA 
recipients in the labor force would be expected to increase because, as 
indicated in Table 8, the RIA projects an increase in the active DACA 
population in future years. Even in FY 2031, however--when the 
projected active DACA population would be at its peak of 956,863--the 
number estimated to participate in the labor force would be 669,804, or 
0.4167 percent of the 2020 U.S. civilian labor force.\389\
---------------------------------------------------------------------------

    \389\ Calculation: (669,804/160,742,000) * 100 = 0.4167%.
---------------------------------------------------------------------------

    Although the estimated annual increases in the active DACA 
population in this proposed rule are small relative to the total U.S. 
and individual State labor forces, DHS recognizes that, in general, any 
increase in worker supply may affect wages and, in turn, the welfare of 
other workers and employers. However, the effects are not obvious as 
changes in wages depend on many factors and various market forces, such 
as the type of occupation and industry, geographic market locations, 
and overall economic conditions. For example, there are industries 
where labor demand might outpace labor supply, such as in healthcare, 
food services, and software development sectors. BLS projects that home 
health and personal care aides occupations will grow by about 34 
percent over the next 10 years, cooks in restaurants by about 23 
percent, and software development occupations by about 22 percent.\390\ 
In industries or sectors such as these, holding everything else 
constant, increases in the labor supply might not be enough to satisfy 
labor demand. As a result, wages might rise to attract qualified 
workers, thereby improving welfare for all workers in these sectors. 
The opposite could happen for industries or sectors where labor supply 
outpaces labor demand. DHS cannot predict the degree to which DACA 
recipients are substituted for other workers in the U.S. economy since 
this depends on factors such as industry characteristics as described 
above as well as on the hiring practices and preferences of employers, 
which depend on many factors, such as worker skill levels, experience 
levels, education levels, training needs, and labor market regulations, 
among others.\391\
---------------------------------------------------------------------------

    \390\ Source: BLS, Employment Projections (Sept. 2020), 
Occupations with the most job growth, Table 1.4. Occupations with 
the most job growth, 2019 and projected 2029, https://www.bls.gov/emp/tables/occupations-most-job-growth.htm.
    \391\ DHS also discusses the possibility of informal employment 
elsewhere in this analysis.
---------------------------------------------------------------------------

    Isolating immigration's effect on labor markets has been an ongoing 
task in the research. A 2017 National Academies of Sciences, 
Engineering, and Medicine

[[Page 53801]]

(NAS) publication synthesizes the current peer-reviewed literature on 
the effects of immigration and empirical findings from various 
publications.\392\ Notably, the 2017 NAS Report addresses a different 
subject than this proposed rule, which relates to a policy of 
enforcement discretion with respect to those who arrived in the United 
States as children and have lived here continuously for well over a 
decade. Nonetheless, the analysis presented in that report may be 
instructive.
---------------------------------------------------------------------------

    \392\ NAS, The Economic and Fiscal Consequences of Immigration 
(2017), https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration (hereinafter 2017 NAS Report).
---------------------------------------------------------------------------

    The 2017 NAS Report cautions that

economic theory alone is not capable of producing definitive answers 
about the net impacts of immigration on labor markets over specific 
periods or episodes. Empirical investigation is needed. But wage and 
employment impacts created by flows of foreign-born workers into 
labor markets are difficult to measure. The effects of immigration 
have to be isolated from many other influences that shape local and 
national economies and the relative wages of different groups of 
workers.\393\
---------------------------------------------------------------------------

    \393\ Id. at p. 4.

Whether immigrants are low-skilled or high-skilled workers can matter 
with respect to effects on wages and the labor market generally.\394\ 
According to the 2017 NAS Report, some studies have found high-skilled 
immigrant workers positively impact wages and employment of both 
college-educated and non-college-educated native workers, consistent 
with the hypothesis that high-skilled immigrants often complement 
native-born high-skilled workers, and some studies looking at 
``narrowly defined fields'' involving high-skilled workers have found 
adverse wage or productivity effects on native-born workers.\395\ In 
addition,
---------------------------------------------------------------------------

    \394\ Id. at p. 4.
    \395\ Id. at 6.

some studies have found sizable negative short-run wage impacts for 
high school dropouts, the native-born workers who in many cases are 
the group most likely to be in direct competition for jobs with 
immigrants. Even for this group, however, there are studies finding 
small to zero effects, likely indicating that outcomes are highly 
dependent on prevailing conditions in the specific labor market into 
which immigrants flow or the methods and assumptions researchers use 
to examine the impact of immigration. The literature continues to 
find less favorable effects for certain disadvantaged workers and 
for prior immigrants than for natives overall.\396\
---------------------------------------------------------------------------

    \396\ Id. at 267.

    With respect to wages, in particular, the 2017 NAS Report described 
---------------------------------------------------------------------------
recent research showing that,

when measured over a period of more than 10 years, the impact of 
immigration on the wages of natives overall is very small. However, 
estimates for subgroups [of noncitizens] span a comparatively wider 
range, indicating a revised and somewhat more detailed understanding 
of the wage impact of immigration since the 1990s. To the extent 
that negative wage effects are found, prior immigrants--who are 
often the closest substitutes for new immigrants--are most likely to 
experience them, followed by native-born high school dropouts, who 
share job qualifications similar to the large share of low-skilled 
workers among immigrants to the United States.\397\
---------------------------------------------------------------------------

    \397\ Id. at 5.

---------------------------------------------------------------------------
    With respect to employment, the report described research finding

little evidence that immigration significantly affects the overall 
employment levels of native-born workers. However, recent research 
finds that immigration reduces the number of hours worked by native 
teens (but not their employment rate). Moreover, as with wage 
impacts, there is some evidence that recent immigrants reduce the 
employment rate of prior immigrants--again suggesting a higher 
degree of substitutability between new and prior immigrants than 
between new immigrants and natives.\398\
---------------------------------------------------------------------------

    \398\ Id. at 5-6.

    Further, the characteristics of local economies matter with respect 
to wage and employment effects. For instance, the impacts to local 
labor markets can vary based on whether such market economies are 
experiencing growth, stagnation, or decline. On average, immigrants 
tend to locate in areas with relatively high labor demand or low 
unemployment levels where worker competition for available jobs is 
low.\399\
---------------------------------------------------------------------------

    \399\ Id. at 5.
---------------------------------------------------------------------------

    Overall, as noted, the 2017 NAS Report observed that when measured 
over a period of 10 years, the impact of immigration on the wage of the 
native-born population overall was ``very small.'' \400\ Although the 
current and eligible DACA population is a subset of the overall 
immigrant population, it still shares similar characteristics with the 
overall immigrant population, including varying education and skill 
levels. Therefore, one could expect the DACA population to have similar 
economic impacts as the overall immigrant population, relative to the 
Pre-Guidance Baseline.
---------------------------------------------------------------------------

    \400\ Id. at 5.
---------------------------------------------------------------------------

    The 2017 NAS Report also discusses the economic impacts of 
immigration and considers effects beyond labor market impacts. Similar 
to the native-born population, immigrants also pay taxes; stimulate the 
economy by consuming goods, services, and entertainment; engage in the 
real estate market; and take part in domestic tourism. Such activities 
contribute to further growth of the economy and create additional jobs 
and opportunities for both native-born and noncitizen populations.\401\
---------------------------------------------------------------------------

    \401\ Id. at 6-7.
---------------------------------------------------------------------------

    DHS welcomes public comments and information that can further 
inform any labor market or wage impact analysis.
e. Fiscal Effects on State and Local Governments
    In this section, in consideration of the Texas II court's 
discussion of fiscal effects (as described in the next section of this 
RIA), DHS briefly addresses the proposed rule's potential fiscal 
effects on State and local governments. It would be extremely 
challenging to measure the overall fiscal effects of this proposed rule 
in particular, especially due to those governments' budgetary control. 
The 2017 NAS Report discussed above canvassed studies of the fiscal 
impacts of immigration as a whole, and it described such analysis as 
extremely challenging and dependent on a range of assumptions. Although 
the 2017 NAS Report addresses a different subject than this proposed 
rule (which relates to a policy of enforcement discretion with respect 
to those who arrived in the United States as children and have lived 
here continuously for well over a decade), DHS discusses the 2017 NAS 
Report to offer general context for this topic. DHS then offers a 
discussion of the potential effects of this proposed rule in 
particular.
    With respect to its topic of study, the NAS wrote that

estimating the fiscal impacts of immigration is a complex 
calculation that depends to a significant degree on what the 
questions of interest are, how they are framed, and what assumptions 
are built into the accounting exercise. The first-order net fiscal 
impact of immigration is the difference between the various tax 
contributions immigrants make to public finances and the government 
expenditures on public benefits and services they receive. The 
foreign-born are a diverse population, and the way in which they 
affect government finances is sensitive to their demographic and 
skill characteristics, their role in labor and other markets, and 
the rules regulating accessibility and use of government-financed 
programs.\402\
---------------------------------------------------------------------------

    \402\ Id. at 28.

In addition, second-order effects also clearly occur; analysis of such 
effects also presents methodological and empirical challenges.\403\
---------------------------------------------------------------------------

    \403\ Id. at 342.
---------------------------------------------------------------------------

    For example, as with the native-born population, the age structure 
of immigrants plays a major role in assessing any fiscal impacts. 
Children and young adults contribute less to

[[Page 53802]]

society in terms of taxes and draw more in benefits by using public 
education, for example. On average, as people age and start 
participating in the labor market they become net contributors to 
public finances, paying more in taxes than they draw from public 
benefit programs. Moreover, people in post-retirement again could 
become net users of public benefit programs. Compared to the native-
born population, immigrants also can differ in their characteristics in 
terms of skills, education levels, income levels, number of dependents 
in the family, the places they choose to live, etc., and any 
combination of these factors could have varying fiscal impacts.
    Local and State economic conditions and laws that govern public 
finances and availability of public benefits also vary and can 
influence the fiscal impacts of immigration. The 2017 NAS Report 
explained that fiscal impacts of immigration

vary strongly by level of governments. States and localities bear 
the burden of funding educational benefits enjoyed by immigrant and 
native children. The federal government transfers relatively little 
to individuals at young and working ages but collects much tax 
revenue from working-age immigrant and native-born workers. 
Inequality between levels of government in the fiscal gains or 
losses associated with immigration appears to have widened since 
1994.\404\
---------------------------------------------------------------------------

    \404\ Id. at 407.

The extent of such gaps among Federal, State, and local impacts 
necessarily varies by jurisdiction and due to a range of surrounding 
circumstances.\405\
---------------------------------------------------------------------------

    \405\ See, e.g., id. at 518, 545 (tables displaying State and 
local revenues per independent person unit and State and local 
expenditures per independent person unit, by immigrant generation by 
State, but without adjusting for eligibility rules specific to 
noncitizens).
---------------------------------------------------------------------------

    Based on the information presented in the 2017 NAS Report, DHS 
approaches the question of State and local fiscal impacts as follows. 
First, it is clear that the fiscal impacts of the proposed rule to 
State and local governments would vary based on a range of factors, 
such as the characteristics of the DACA-recipient population within a 
particular jurisdiction at a particular time (or over a particular 
period of time), including recipients' age, educational attainment, 
income, and level of work-related skill as well as the number of 
dependents in their families. In addition, fiscal effects would vary 
significantly depending on local economic conditions and the local 
rules governing eligibility for public benefits.\406\ For example, some 
States may allow DACA recipients to apply for subsidized driver's 
licenses or allow DACA recipients to qualify for instate tuition at 
public universities, which may not be available to similarly situated 
individuals without deferred action. These costs to the State will be 
highly location specific and are, therefore, difficult to quantify.
---------------------------------------------------------------------------

    \406\ DHS notes that DACA recipients are not considered 
``qualified aliens.'' See 8 U.S.C. 1641(b). As noted elsewhere in 
this preamble, PRWORA also limits the provision of ``state and local 
public benefits'' to noncitizens who are ``qualified aliens,'' with 
limited exceptions, but provides that States may affirmatively enact 
legislation making noncitizens ``who [are] not lawfully present in 
the United States'' eligible for such benefits. See 8 U.S.C. 
1621(d).
---------------------------------------------------------------------------

    Second, as compared to the Pre-Guidance Baseline, multiple aspects 
of this proposed rule suggest that the burden on State and local fiscal 
resources imposed by the proposed rule is unlikely to be significant, 
and it may well have a positive net effect. Recall that under the Pre-
Guidance Baseline, most noncitizens who otherwise would be DACA 
recipients likely would remain in the country, but without the 
additional measure of security, employment authorization, and lawful 
presence that this proposed rule would provide. Under the Pre-Guidance 
Baseline, these noncitizens would continue to use and rely, as 
necessary, on those safety net and other public resources for which 
they are eligible. As noted above, DACA recipients may be eligible for 
more benefits under current State and local law than they otherwise 
would be eligible for without DACA, but they still do not fall under 
the ``qualified alien'' category, and are, therefore, generally 
ineligible for public benefits at the Federal, State, and local 
levels.\407\ Under the proposed rule, these noncitizens can work and 
build human capital and, depending on the choices made by a State, may 
be able to secure driver's licenses and other identification, obtain 
professional licenses, or otherwise realize benefits from the policy. 
In short, the proposed rule likely would result in increases in tax 
revenues, as well as decreases in reliance on safety net programs, 
although effects on specific programs may vary based on a range of 
factors.
---------------------------------------------------------------------------

    \407\ See 8 U.S.C. 1641(b), 1611 (general ineligibility for 
Federal public benefits), and 1621 (general ineligibility for State 
public benefits).
---------------------------------------------------------------------------

    Third, DHS notes the relatively small size of the DACA population 
in any particular region relative to any given jurisdiction's overall 
population. The overall long-term fiscal health of State and local 
jurisdictions where DACA recipients choose to work and live will depend 
on many other factors not within DHS's control. In the long term, DHS 
expects State and local governments to continue to choose how to 
finance public goods, set tax structures and rates, allocate public 
resources, and set eligibilities for various public benefit programs, 
and to adjust these approaches based on the evolving conditions of 
their respective populations.
    In short, DHS acknowledges that though the proposed rule likely 
would result in some indirect fiscal effects on State and local 
governments (both positive and negative), such effects would be 
extremely challenging to quantify fully and would vary based on a range 
of factors, including policy choices made by such governments. DHS 
welcomes comment on such fiscal effects and how, if at all, DHS should 
weigh those fiscal effects in the context of the full range of policy 
considerations relevant to this rulemaking.
    DHS invites public comments on State and local fiscal effects that 
could be incorporated in the analysis.
f. Reliance Interests and Other Regulatory Effects
    In the Texas II district court's decision, the court identified a 
range of considerations potentially relevant to ``arbitrary and 
capricious'' review of any actions that DHS might take on remand,\408\ 
although the court noted that many of these considerations were matters 
raised by parties and amici in the course of Texas I and Texas II, and 
the court did not appear to suggest that DHS was required to analyze 
each of these considerations. The court further cautioned that it did 
not mean to suggest ``this is an exhaustive list, and no doubt many 
more issues may arise throughout the notice and comment period. 
Further, the Court takes no position on how DHS (or Congress, should it 
decide to take up the issue) should resolve these considerations, as 
long as that resolution complies with the law.'' DHS has assessed the 
considerations presented by the district court, and it presents its 
preliminary views in this section.\409\
---------------------------------------------------------------------------

    \408\ In the same section of the court's opinion, the court also 
suggested that DHS consider a forbearance-only alternative to DACA. 
The court wrote that ``the underlying DACA record points out in 
multiple places that while forbearance fell within the realm of 
prosecutorial discretion, the award of status and benefits did not. 
Despite this distinction, neither the DACA Memorandum nor the 
underlying record reflects that any consideration was given to 
adopting a policy of forbearance without the award of benefits.'' 
DHS has addressed this issue in the Regulatory Alternatives section 
below.
    \409\ DHS has opted to address these considerations out of 
deference to the district court's memorandum and order, and in an 
abundance of caution. This decision should not be viewed as a 
concession that DHS must or should consider the various 
considerations raised by the district court, with respect to this 
proposed rule or any other proposed rule.

---------------------------------------------------------------------------

[[Page 53803]]

    First, the court raised potential reliance interests of States and 
---------------------------------------------------------------------------
their residents, writing that

for decades the states and their residents have relied upon DHS (and 
its predecessors) to protect their employees by enforcing the law as 
Congress had written it. Once again, neither the DACA Memorandum nor 
its underlying record gives any consideration to these reliance 
interests. Thus, if one applies the Supreme Court's rescission 
analysis from Regents to DACA's creation, it faces similar 
deficiencies and would likely be found to be arbitrary and 
capricious.

    In developing this proposed rule, DHS has considered a wide range 
of potential reliance interests. As noted throughout this preamble, 
reliance interests can take multiple forms, and may be entitled to 
greater or lesser weight depending on the nature of the Department 
action or statement on which they are based. Such interests can include 
not only the reliance interests of DACA recipients, but also those 
indirectly affected by DHS's actions, including DACA recipients' family 
members, employers, schools, and neighbors, as well as the various 
States and their other residents. Some States have relied on the 
existence of DACA in setting policies regarding eligibility for 
driver's licenses, instate tuition, State-funded health care benefits, 
and professional licenses.\410\ Other States may have relied on certain 
aspects of DACA--such as employment authorization or lawful presence--
in making other policy choices.\411\
---------------------------------------------------------------------------

    \410\ See, e.g., National Conference of State Legislators, 
``Deferred Action for Childhood Arrivals [verbar] Federal Policy and 
Examples of State Actions,'' https://www.ncsl.org/research/immigration/deferred-action.aspx (last updated Apr. 16, 2020) 
(describing State actions, in the years following the Napolitano 
Memorandum, with respect to unauthorized noncitizens generally, DACA 
recipients in particular, and other classes of noncitizens).
    \411\ See, e.g., National Conference of State Legislators, 
``States Offering Driver's Licenses to Immigrants,'' https://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx (last updated Aug. 9, 2021) (describing multiple 
State decisions to offer driver's licenses to noncitizens with 
lawful presence).
---------------------------------------------------------------------------

    In addition, prior to 2012, some States may have relied on the pre-
DACA status quo in various ways, although the relevance of such 
reliance interests may be attenuated by the fact that DACA has been in 
existence since 2012, and by the fact that the executive branch has 
long exercised, even prior to 2012, various forms of enforcement 
discretion with features similar to DACA (see Section III.A for 
examples). DHS is aware of such interests and has taken them into 
account; it does not believe they are sufficient to outweigh the many 
considerations, outlined above, that support the proposed rule. DHS 
seeks comments on potential reliance interests of all kinds, including 
any reliance interests established prior to the issuance of the 
Napolitano Memorandum, and how DHS should accommodate such asserted 
reliance interests in a final rule.
    Second, the court wrote that ``the parties and amici curiae have 
raised various other issues that might be considered in a reformulation 
of DACA,'' as follows (in the court's terms):
    1. The benefits bestowed by the DACA recipients on this country and 
the communities where they reside;
    2. the effects of DACA or similar programs on legal and illegal 
immigration;
    3. the effects of DACA on the unemployed or underemployed legal 
residents of the States;
    4. whether DACA amounts to an abandonment of the executive branch's 
duty to enforce the law as written (as the plaintiff States have long 
claimed);
    5. whether any purported new formulation violates the equal 
protection guarantees of the Constitution (as Justice Sotomayor was 
concerned that DACA's rescission would); and
    6. the costs DACA imposes on the States and their respective 
communities.
    The court also identified ``more attenuated considerations,'' as 
follows:
    7. The secondary costs imposed on States and local communities by 
any alleged increase in the number of undocumented immigrants due to 
DACA; and
    8. what effect illegal immigration may have on the lucrative human 
smuggling and human trafficking activities of the drug cartels that 
operate on our Southern border.
    Throughout the preamble generally and in this RIA specifically, DHS 
has addressed several of these issues relative to both baselines, and 
we seek comment on all of them. DHS addresses each question briefly 
below, with the expectation of additional engagement by the public 
during the comment period for this proposed rule.
    With respect to item (1), the benefits bestowed by DACA recipients 
on this country and the communities where they reside are numerous. DHS 
directs the reader to Section II.A, as well as the discussions of 
benefits and transfers in this RIA. DACA recipients have made 
substantial contributions, including as members of families and 
communities, and have offered substantial productivity and tax revenue 
through their work in a wide range of occupations.
    With respect to item (2), as noted above, DHS does not perceive 
DACA as having a substantial effect on volumes of lawful and unlawful 
immigration into the United States.\412\ DHS is not aware of any 
evidence, and does not believe that, DACA acts as a significant 
material ``pull factor'' (in light of the wide range of factors that 
contribute to both lawful and unlawful immigration into the United 
States).\413\ DHS policy and messaging have been and continue to be 
clear that DACA is not available to individuals who have not 
continuously resided in the United States since at least June 15, 2007, 
and that border security remains a high priority for the 
Department.\414\ DHS does not propose to open up the DACA policy to new 
groups of noncitizens and does not believe that codifying the DACA 
policy would undermine DHS's enforcement messaging.\415\ For the same 
reasons, DHS does not believe it necessary to address items (7) and (8) 
above, although DHS welcomes comments to inform DHS's analysis further.
---------------------------------------------------------------------------

    \412\ As discussed elsewhere in this rule, DHS believes that the 
proposed rule will not necessarily affect the number of noncitizens 
it removes each year, but rather helps ensure that finite removal 
resources are focused on the highest priority cases.
    \413\ See, e.g., Catalina Amuedo-Dorantes and Thitima 
Puttitanun, DACA and the Surge in Unaccompanied Minors at the US-
Mexico Border, 54(4) Int'l Migration 102, 112 (2016) (``DACA does 
not appear to have a significant impact on the observed increase in 
unaccompanied alien children in 2012 and 2013.'').
    \414\ For example, DHS continues to invest in new CBP personnel, 
including hiring more than 100 additional Border Patrol Processing 
Coordinators in FY 2021, with plans to hire hundreds more. CBP also 
is investing in technology that enhances its border security 
mission. Over the last few years, CBP has increased its use of 
relocatable Autonomous Surveillance Towers (ASTs) along the border, 
which enable enhanced visual detection, identification, and 
classification of subjects or vehicles at a great distance via 
autonomous detection capabilities. ASTs can be moved to areas of 
interest or high traffic, as circumstances on the ground dictate. To 
increase situational awareness, CBP also recently integrated the 
Team Awareness Kit, which provides near real-time situational 
awareness for USBP agents and the locations of suspected illegal 
border activities. Advanced technology returns agents to the field 
and increases the probability of successful interdiction and 
enforcement.
    \415\ See DACA FAQs; Pekoske Memorandum; see also Acting ICE 
Director Tae D. Johnson, Interim Guidance: Civil Immigration 
Enforcement and Removal Priorities (Feb. 18, 2021). As noted above, 
on September 15, 2021, the U.S. Court of Appeals for the Fifth 
Circuit partially stayed a preliminary injunction issued by the U.S. 
District Court for the Southern District of Texas with respect to 
the two 2021 policies. See State of Texas v. United States, No. 21-
40618 (5th Cir. Sept. 15, 2021).
---------------------------------------------------------------------------

    With respect to item (3), DHS details its consideration of 
potential harm to unemployed and underemployed individuals in the Labor 
Market Impacts section. That section discusses findings from the 2017 
NAS Report, which

[[Page 53804]]

summarizes the work of numerous social scientists who have studied the 
costs and benefits of immigration for decades.
    This RIA does not contain a section that discusses the costs of a 
regulatory alternative in which DACA EADs are terminated or phased out 
relative to a No Action baseline, although it does contain estimates of 
costs, benefits, and transfers relative to the Pre-Guidance Baseline, 
which may be instructive for understanding some of these effects. In 
such a scenario, as discussed in USCIS' Asylum Application, Interview, 
and Employment Authorization for Applicants Final Rule (85 FR 38532, 
June 26, 2020), the lost compensation from DACA recipients could serve 
as a proxy for the cost of lost productivity to U.S. employers that are 
unable to find replacement workers in the U.S. labor force. There also 
could be additional employer costs related to searching for new job 
applicants.
    With respect to item (4), DHS continues to enforce the law as 
written. As noted in Sections II.A, III.A, and III.C, the use of 
prioritization and discretion is a necessary element of fulfilling the 
DHS mission, and the use of deferred action for this purpose is 
consistent with the longstanding practice of DHS and the former INS.
    With respect to item (5), DHS does not believe that the DACA policy 
or this proposed rule would violate the equal protection component of 
the Fifth Amendment's Due Process Clause. DHS nonetheless invites 
comment on whether equal protection principles bear on or would 
preclude DACA.\416\
---------------------------------------------------------------------------

    \416\ Although the Equal Protection Clause of the Fourteenth 
Amendment does not apply to the Federal Government, the Supreme 
Court in Bolling v. Sharpe, 347 U.S. 497, 500 (1954), held that 
while ```equal protection of the laws' is a more explicit safeguard 
of prohibited unfairness than `due process of law,' . . . 
discrimination may be so unjustifiable as to be violative of due 
process.''
---------------------------------------------------------------------------

    With respect to item (6), DHS addresses the issue in Section 
V.A.4.e above. In short, although such an analysis is challenging for a 
variety of reasons, multiple aspects of this proposed rule suggest that 
the proposed rule is unlikely to impose a significant burden on State 
and local fiscal resources, and it may well have a positive effect.
    With respect to items (7) and (8), which relate to the costs of 
unlawful immigration and human smuggling, DHS disagrees with the 
premise, as noted in DHS's discussion of item (2) above. As with each 
of these items, however, DHS welcomes the submission of evidence 
pertinent to the empirical question, as well as information and views 
as to how to evaluate and use such evidence.
    Finally, the court also stated that ``if DHS elects to justify DACA 
by asserting that it will conserve resources, it should support this 
conclusion with evidence and data. No such evidence is to be found in 
the administrative record or the DACA Memorandum. DHS should consider 
the costs imposed on or saved by all governmental units.'' DHS agrees 
on the importance of evidence and data and has addressed the resource 
implications of DACA throughout the proposed rule, including at 
Sections III.C and V.A.4.b.(5).

[[Page 53805]]

g. Discounted Direct Costs, Cost Savings, Transfers, and Benefits of 
the Proposed Regulatory Changes
    To compare costs over time, DHS applied a 3-percent and a 7-percent 
discount rate to the total estimated costs, cost savings, transfers, 
and benefits associated with the proposed rule. Table 18 presents a 
summary of the proposed rule's quantified cost savings relative to the 
No Action Baseline at 3-percent and 7-percent discount rates.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP28SE21.039


[[Page 53806]]


    Table 19 presents a summary of the proposed rule's potential 
transfers relative to the No Action Baseline at 3-percent and 7-percent 
discount rates.
[GRAPHIC] [TIFF OMITTED] TP28SE21.040


[[Page 53807]]


    Table 20 presents a summary of the potential costs relative to the 
Pre-Guidance Baseline in undiscounted dollars and discounted at 3 
percent and 7 percent.
[GRAPHIC] [TIFF OMITTED] TP28SE21.041


[[Page 53808]]


    Table 21 presents a summary of the potential benefits relative to 
the Pre-Guidance Baseline in undiscounted dollars and discounted at 3 
percent and 7 percent.
[GRAPHIC] [TIFF OMITTED] TP28SE21.042


[[Page 53809]]


    Table 22 presents a summary of the potential tax transfers relative 
to the Pre-Guidance Baseline in undiscounted dollars and discounted at 
3 percent and 7 percent.
[GRAPHIC] [TIFF OMITTED] TP28SE21.043

    Table 23 presents a summary of the potential transfers relative to 
the Pre-Guidance Baseline in undiscounted dollars and discounted at 3 
percent and 7 percent.

[[Page 53810]]

[GRAPHIC] [TIFF OMITTED] TP28SE21.044

BILLING CODE 9111-97-C
h. Regulatory Alternatives
    Consistent with the Supreme Court's general analysis in Regents, 
and the more recent analysis of the district court in Texas II, DHS is 
keenly alert to the importance of exploring all relevant alternatives. 
This focus is also consistent with E.O. 12866 and E.O. 13563. As stated 
in E.O. 12866,

[i]n deciding whether and how to regulate, agencies should assess 
all costs and benefits of available regulatory alternatives, 
including the alternative of not regulating. Costs and benefits 
shall be understood to include both quantifiable measures (to the 
fullest extent that these can be usefully estimated) and qualitative 
measures of costs and benefits that are difficult to quantify, but 
nevertheless essential to consider. Further, in choosing among 
alternative regulatory approaches, agencies should select those 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety, and other advantages; 
distributive impacts; and equity), unless a statute requires another 
regulatory approach.

    Consistent with these requirements, DHS has considered a range of 
regulatory alternatives to the proposed rule, including alternatives 
related to a policy of forbearance without employment authorization or 
the benefits associated with so-called lawful presence. As discussed in 
detail in Sections III.A through III.C above, the authority to forbear 
is an undisputed feature of DHS's enforcement discretion, whereas the 
district court in Texas II held that DHS lacked authority to provide 
employment authorization and benefits such as Social Security benefits 
to DACA recipients.\417\
---------------------------------------------------------------------------

    \417\ As the court stated in Texas II in objecting to work 
authorization and lawful presence, ``the individualized notion of 
deferred action'' is an approach ``that courts have found 
permissible in other contexts.''
---------------------------------------------------------------------------

    The analysis of this forbearance-only alternative is in a sense 
relatively straightforward. Like the proposed rule, as compared to the 
Pre-Guidance Baseline, such an approach would confer a range of 
benefits to DHS, while also conferring benefits to DACA recipients and 
their families, in the form of increased security, reduced fear and 
anxiety, and associated values (which we have not been able to 
quantify). Unlike the proposed rule, however, such an approach would 
not confer upon DACA recipients, their families, and their communities 
the benefits of their work authorization and employment, or impose the 
corresponding costs (both quantified here, to the extent feasible). To 
that

[[Page 53811]]

extent, a forbearance-only alternative would have substantially lower 
net benefits, consistent with the numbers discussed above.
    For instance, as discussed in Section III.D. above, a policy of 
forbearance without work authorization also would disrupt the reliance 
interests of hundreds of thousands of people, as well as the families, 
employers, and communities that rely on them. It would result in 
substantial economic losses. It would produce a great deal of human 
suffering, including harms to dignitary interests, associated with lost 
income and ability to self-support. It potentially would result in 
hundreds of thousands of prime-working-age people remaining in the 
United States while lacking authorization to work to support either 
themselves or their families. Importantly, it also would deprive 
American employers and the American public at large of the ability to 
benefit from valuable work of hundreds of thousands of skilled and 
educated individuals and disappoint their own, independent reliance 
interests as well. For the Federal Government, as well as for State and 
local governments, it likely would have adverse fiscal implications, 
due to reduced tax revenues. In addition, unlike the proposed rule, 
such an approach would produce reduced transfers to Medicare and Social 
Security funds, as well as any other transfers associated with the DACA 
policy under the No Action Baseline.
    A possible alternative to the policy in the proposed rule would 
include (1) forbearance and (2) work authorization, but exclude (3) 
``lawful presence'' and the resulting elimination of one ground of 
ineligibility for the associated benefits. DHS has considered this 
alternative and seeks comment on the issues of law and policy 
associated with it, including data as to the potential effects of such 
an approach. As noted above, ``lawful presence'' is a term of art; it 
could not and does not mean ``lawful status.'' But DHS believes that 
this alternative approach also may be inferior to the proposal, for at 
least two reasons. First, that approach would single out DACA 
recipients--alone among other recipients of deferred action, as well as 
others whose continued presence DHS has chosen to tolerate for a period 
of time--for differential treatment. Second, DHS is aware that some 
States have keyed benefits eligibility to lawful presence and may 
experience unintended indirect impacts if DHS, a decade after issuance 
of the Napolitano Memorandum, revises that aspect of the policy.\418\ 
For these reasons, DHS does not at this time believe that it would be 
preferable to limit the proposal to forbearance and work authorization, 
but it welcomes comments on that alternative, and on all reasonable 
alternatives.
---------------------------------------------------------------------------

    \418\ See supra note 411.
---------------------------------------------------------------------------

    Finally, consistent with the Texas II district court's equitable 
decision to stay its vacatur and injunction as it relates to existing 
DACA recipients, DHS considered the alternative of applying this 
proposed rule only to existing DACA recipients. Existing DACA 
recipients have clearer reliance interests in the continuation of DACA 
than do prospective applicants who have yet to apply. On the other 
hand, the benefits of the program are equally applicable to those who 
have yet to apply, and some who might have benefited under the 
Napolitano Memorandum but have yet to ``age in'' to eligibility to 
request DACA. Although DHS believes that restricting eligibility to 
existing DACA recipients would not be desirable or maximize net 
benefits, DHS welcomes comment on the matter.
    DHS invites the public to provide input regarding the current 
regulatory alternatives presented, suggest any other possible 
regulatory alternatives, or both.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA),\419\ as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA),\420\ requires Federal agencies to consider the potential 
impact of regulations on small businesses, small governmental 
jurisdictions, and small organizations during the development of their 
rules. The term ``small entities'' comprises small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000.\421\
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    \419\ 5 U.S.C. ch. 6.
    \420\ Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 601 
note).
    \421\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act (15 U.S.C. 632).
---------------------------------------------------------------------------

    The proposed rule does not directly regulate small entities and is 
not expected to have a direct effect on small entities. It does not 
mandate any actions or requirements for small entities in the process 
of a DACA requestor seeking DACA or employment authorization. Rather, 
this proposed rule regulates individuals, and individuals are not 
defined as ``small entities'' by the RFA.\422\ Based on the evidence 
presented in this analysis and throughout this preamble, DHS certifies 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities. DHS nonetheless welcomes 
comments regarding potential economic impacts on small entities, which 
DHS may consider as appropriate in a final rule. For example, DHS seeks 
data and information on the number of DACA recipients who have started 
small businesses or work at small businesses.
---------------------------------------------------------------------------

    \422\ 5 U.S.C. 601(6).
---------------------------------------------------------------------------

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and Tribal 
governments, in the aggregate, or by the private sector.\423\ The 
inflation-adjusted value of $100 million in 1995 is approximately 
$169.8 million in 2020 based on the CPI-U.\424\ The term ``Federal 
mandate'' means a Federal intergovernmental mandate or a Federal 
private sector mandate.\425\ The term ``Federal intergovernmental 
mandate'' means, in relevant part, a provision that would impose an 
enforceable duty upon State, local, or Tribal governments (except as a 
condition of Federal assistance or a duty arising from participation in 
a voluntary Federal program).\426\ The term ``Federal private sector 
mandate'' means, in relevant part, a provision that would impose an 
enforceable duty upon the

[[Page 53812]]

private sector except (except as a condition of Federal assistance or a 
duty arising from participation in a voluntary Federal program).\427\
---------------------------------------------------------------------------

    \423\ See 2 U.S.C. 1532(a).
    \424\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf.
    Steps in calculation of inflation: (1) Calculate the average 
monthly CPI-U for the reference year (1995) and the most recent 
current year available (2020); (2) Subtract reference year CPI-U 
from current year CPI-U; (3) Divide the difference of the reference 
year CPI-U and current year CPI-U by the reference year CPI-U; (4) 
Multiply by 100.
    Calculation of inflation: [(Average monthly CPI-U for 2020--
Average monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 
100 = [(258.811-152.383)/152.383] * 100 = (106.428/152.383) * 100 = 
0.6984 * 100 = 69.84 percent = 69.8 percent (rounded).
    Calculation of inflation-adjusted value: $100 million in 1995 
dollars * 1.698 = $169.8 million in 2020 dollars.
    \425\ See 2 U.S.C. 1502(1), 658(6).
    \426\ 2 U.S.C. 658(5).
    \427\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------

    This proposed rule does not contain such a mandate, because it does 
not impose any enforceable duty upon any other level of government or 
private sector entity. Any downstream effects on such entities would 
arise solely due to their voluntary choices and would not be a 
consequence of an enforceable duty. Similarly, any costs or transfer 
effects on State and local governments would not result from a Federal 
mandate as that term is defined under UMRA.\428\ The requirements of 
title II of UMRA, therefore, do not apply, and DHS has not prepared a 
statement under UMRA. DHS has, however, analyzed many of the potential 
effects of this action in the RIA above. DHS welcomes comments on this 
analysis.
---------------------------------------------------------------------------

    \428\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule, if finalized, would be a major rule as defined 
by section 804 of SBREFA.\429\ This proposed rule likely would result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based companies to compete with foreign-based companies 
in domestic and export markets. Accordingly, absent exceptional 
circumstances, this rule, if enacted as a final rule, would be 
effective at least 60 days after the date on which Congress receives a 
report submitted by DHS as required by 5 U.S.C. 801(a)(1).
---------------------------------------------------------------------------

    \429\ See 5 U.S.C. 804(2).
---------------------------------------------------------------------------

E. Executive Order 13132: Federalism

    This proposed rule would not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. DHS does not expect that this rule would 
impose substantial direct compliance costs on State and local 
governments or preempt State law. Therefore, in accordance with section 
6 of E.O. 13132, this proposed rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988: Civil Justice Reform

    This proposed rule was drafted and reviewed in accordance with E.O. 
12988, Civil Justice Reform. This final rule was written to provide a 
clear legal standard for affected conduct and was reviewed carefully to 
eliminate drafting errors and ambiguities, so as to minimize litigation 
and undue burden on the Federal court system. DHS has determined that 
this final rule meets the applicable standards provided in section 3 of 
E.O. 12988.

G. Paperwork Reduction Act--Collection of Information

    Under the PRA,\430\ all Departments are required to submit to OMB, 
for review and approval, any reporting or recordkeeping requirements 
inherent in a rule. DHS and USCIS are revising two information 
collections in association with this rulemaking action:
---------------------------------------------------------------------------

    \430\ Public Law 104-13, 109 Stat. 163.
---------------------------------------------------------------------------

USCIS Form I-821D
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0124 and the agency name. Comments 
on this information collection should address one or more of the 
following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses).
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Consideration of Deferred Action 
for Childhood Arrivals.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: I-821D; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. The 
information collected on this form is used by USCIS to determine 
eligibility of certain noncitizens who entered the United States as 
minors and meet the guidelines to be considered for DACA.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the I-821D initial requests information 
collection is 112,254 annually, and the estimated hour burden per 
response is 3 hours; the estimated total number of respondents for the 
I-821D renewal requests information collection is 276,459, and the 
estimated hour burden per response is 3 hours; the estimated total 
number of respondents for the biometrics collection is 388,713 
annually, and the estimated hour burden per response is 1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 1,620,933 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $42,758,430.
USCIS Form I-765
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0040 and the agency name. Comments 
on this information collection should address one or more of the 
following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the

[[Page 53813]]

agency, including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses).
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: I-765 and I-765WS; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. USCIS 
uses Form I-765 to collect information needed to determine if a 
noncitizen is eligible for an initial EAD, a new replacement EAD, or a 
subsequent EAD upon the expiration of a previous EAD under the same 
eligibility category. Noncitizens in many immigration statuses are 
required to possess an EAD as evidence of employment authorization.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the I-765 information collection is 
2,062,880 annually, and the estimated hour burden per response is 4.5 
hours; the estimated total number of respondents for the Form I-765 (e-
file) information collection is 106,506 annually, and the estimated 
hour burden per response is 4 hours; the estimated total number of 
respondents for the I-765WS information collection is 185,386 annually, 
and the estimated hour burden per response is 0.5 hours; the estimated 
total number of respondents for the biometrics collection is 302,535 
annually, and the estimated hour burden per response is 1.17 hours; the 
estimated total number of respondents for the passport photos 
collection is 2,169,386 annually, and the estimated hour burden per 
response is 0.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 11,240,336 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $379,642,550.

H. Family Assessment

    DHS has reviewed this proposed rule in line with the requirements 
of section 654 of the Treasury and General Government Appropriations 
Act, 1999,\431\ enacted as part of the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999.\432\ DHS has 
systematically reviewed the criteria specified in section 654(c)(1) of 
that act, by evaluating whether this proposed regulatory action: (1) 
Impacts the stability or safety of the family, particularly in terms of 
marital commitment; (2) impacts the authority of parents in the 
education, nurture, and supervision of their children; (3) helps the 
family perform its functions; (4) affects disposable income or poverty 
of families and children; (5) only financially impacts families, if at 
all, to the extent such impacts are justified; (6) may be carried out 
by State or local government or by the family; or (7) establishes a 
policy concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If the agency 
determines the proposed regulation may negatively affect family well-
being, then the agency must provide an adequate rationale for its 
implementation.
---------------------------------------------------------------------------

    \431\ See 5 U.S.C. 601 note.
    \432\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

    DHS has determined that the implementation of this proposed rule 
would not negatively affect family well-being, but rather would 
strengthen it. This regulation would create a positive effect on the 
family by allowing families to remain together in the United States and 
enabling access to greater financial stability. More than 250,000 
children have been born in the United States with at least one parent 
who is a DACA recipient.\433\ DACA would provide recipients with U.S. 
citizen children a greater sense of security, which is important for 
families' overall well-being and success. It would also make recipients 
eligible for employment authorization, which would motivate DACA 
recipients to continue their education, graduate from high school, 
pursue post-secondary and advanced degrees, and seek additional 
vocational training, which ultimately would provide greater 
opportunities, financial stability, and disposable income for 
themselves and their families.\434\
---------------------------------------------------------------------------

    \433\ Svajlenka and Wolgin (2020).
    \434\ Gonzales (2019); Wong (2020).
---------------------------------------------------------------------------

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule has been reviewed in accordance with the 
requirements of E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments. E.O. 13175 requires Federal agencies to consult and 
coordinate with Tribes on a Government-to-Government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes. DHS has assessed the impact 
of this rule on Indian Tribes and determined that this proposed rule 
does not have Tribal implications that require Tribal consultation 
under E.O. 13175.

J. National Environmental Policy Act

    DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 
023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and 
procedures DHS and its components use to comply with the National 
Environmental Policy Act (NEPA) and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 
through 1508.
    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement.\435\ The 
Instruction Manual establishes categorical exclusions that DHS has 
found to have no such effect.\436\ Under DHS implementing procedures 
for NEPA, for a proposed action to be categorically excluded, it must 
satisfy each of the following three conditions: (1) The entire action 
clearly fits within one or more of the categorical exclusions; (2) the 
action is not a piece of a larger action; and (3) no

[[Page 53814]]

extraordinary circumstances exist that create the potential for a 
significant environmental effect.\437\
---------------------------------------------------------------------------

    \435\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
    \436\ See Instruction Manual, Appendix A, Table 1.
    \437\ See id. at Section V.B(2)(a) through (c).
---------------------------------------------------------------------------

    This proposed rule codifies the enforcement discretion policy 
stated in the Napolitano Memorandum into DHS regulations. It defines 
the criteria under which DHS will consider requests for DACA, the 
procedures by which one may request DACA, and what an affirmative grant 
of DACA will confer upon the requestor.
    To whatever extent this rule might have effects on the human 
environment, if any, DHS believes that analysis of such effects would 
require predicting a myriad of independent decisions by a range of 
actors (including current and prospective DACA recipients, employers, 
law enforcement officers, and courts) at indeterminate times in the 
future. Such predictions are unduly speculative and not amenable to 
NEPA analysis.
    Nevertheless, if NEPA did apply to this action, the proposed action 
would clearly fit within categorical exclusion number A3(c), which 
includes rules that ``implement, without substantive change, 
procedures, manuals, and other guidance documents'' as set forth in the 
Instruction Manual,\438\ as the proposed rule codifies the existing 
DACA policy and is not expected to alter the population who qualify for 
DACA.
---------------------------------------------------------------------------

    \438\ See id. at Appendix A, Table 1.
---------------------------------------------------------------------------

    This proposed rule is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, if NEPA were determined to apply, 
this rule would be categorically excluded from further NEPA review.

K. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. Therefore, a takings implication assessment is not required.

L. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    E.O. 13045 requires agencies to consider the impacts of 
environmental health risk or safety risk that may disproportionately 
affect children. DHS has reviewed this rule and determined that this 
rule is not a covered regulatory action under E.O. 13045. Although the 
rule is economically significant, it would not create an environmental 
risk to health or risk to safety that may disproportionately affect 
children. Therefore, DHS has not prepared a statement under this E.O.

VI. List of Subjects and Regulatory Amendments

List of Subjects

8 CFR 106

    Fees, Immigration.

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Penalties, Reporting and recordkeeping 
requirements, Students.

    Accordingly, DHS proposes to amend parts 106, 236, and 274a of 
chapter I of title 8 of the Code of Federal Regulations as follows:

PART 106--USCIS FEE SCHEDULE

0
1. The authority citation for 8 CFR part 106 continues to read as 
follows:

    Authority:  8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub. 
L. 107-609; Pub. L. 115-218.

0
2. Amend Sec.  106.2 by revising paragraph (a)(38) to read as follows:


Sec.  106.2   Fees.

    (a) * * *
    (38) Application for Deferred Action for Childhood Arrivals, Form 
I-821D: $85.
* * * * *

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

0
3. The authority citation for part 236 is revised to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 
112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 
1182, 1224, 1225, 1226, 1227, 1231, 1232, 1324a, 1357, 1362, 1611; 
18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

0
4. Add subpart C, consisting of Sec. Sec.  236.21 through 236.25, to 
read as follows:

Subpart C--Deferred Action for Childhood Arrivals

Sec.
236.21 Applicability.
236.22 Discretionary determination.
236.23 Procedures for request, terminations, and restrictions on 
information use.
236.24 Severability.
236.25 No private rights.


Sec.  236.21   Applicability.

    (a) This subpart applies to requests for deferred action under the 
enforcement discretion policy set forth in this subpart, which will be 
described as Deferred Action for Childhood Arrivals (DACA). This 
section does not apply to or govern any other request for or grant of 
deferred action or any other DHS deferred action policy.
    (b) Except as specifically provided in this subpart, the provisions 
of 8 CFR part 103 do not apply to requests filed under this subpart.
    (c)(1) Deferred action is an exercise of the Secretary's broad 
authority to establish national immigration enforcement policies and 
priorities under 6 U.S.C. 202(5) and section 103 of the Act. It is a 
form of enforcement discretion not to pursue the removal of certain 
aliens for a limited period in the interest of ordering enforcement 
priorities in light of limitations on available resources, taking into 
account humanitarian considerations and administrative convenience. It 
furthers the administrability of the complex immigration system by 
permitting the Secretary to focus enforcement on higher priority 
targets. This temporary forbearance from removal does not confer any 
right or entitlement to remain in or re-enter the United States. A 
grant of deferred action under this section does not preclude DHS from 
commencing removal proceedings at any time or prohibit DHS or any other 
Federal agency from initiating any criminal or other enforcement action 
at any time.
    (2) During this period of forbearance, on the basis of this subpart 
only, DACA recipients who can demonstrate an economic need may apply to 
USCIS for employment authorization pursuant to 8 CFR 274a.13 and 
274a.12(c)(33).
    (3) During this period of forbearance, on the basis of this subpart 
only, a DACA recipient is considered ``lawfully present'' under the 
provisions of 8 CFR 1.3(a)(4)(vi).
    (4) During this period of forbearance, on the basis of this subpart 
only, a DACA recipient is not considered ``unlawfully present'' for the 
purpose of inadmissibility under section 212(a)(9) of the Act.


Sec.  236.22   Discretionary determination.

    (a) Deferred Action for Childhood Arrivals; in general. (1) USCIS 
may consider requests for Deferred Action for Childhood Arrivals 
submitted by

[[Page 53815]]

aliens described in paragraph (b) of this section.
    (2) A pending request for deferred action under this section does 
not authorize or confer any interim immigration benefits such as 
employment authorization or advance parole.
    (3) Subject to paragraph (c) of this section, the requestor bears 
the burden of demonstrating by a preponderance of the evidence that he 
or she meets the threshold criteria described in paragraph (b) of this 
section.
    (b) Threshold criteria. Subject to paragraph (c) of this section, a 
request for deferred action under this section may be granted only if 
USCIS determines in its sole discretion that the alien meets each of 
the following threshold criteria and merits a favorable exercise of 
discretion:
    (1) Came to the United States under the age of 16. The requestor 
must demonstrate that he or she first resided in the United States 
before his or her sixteenth birthday.
    (2) Continuous residence in the United States from June 15, 2007, 
to the time of filing of the request. The requestor also must 
demonstrate that he or she has been residing in the United States 
continuously from June 15, 2007, to the time of filing of the request. 
As used in this section, ``residence'' means the principal, actual 
dwelling place in fact, without regard to intent, and specifically the 
country of the actual dwelling place. In particular, brief, casual, and 
innocent absences from the United States will not break the continuity 
of one's residence. However, unauthorized travel outside of the United 
States on or after August 15, 2012, will interrupt continuous 
residence, regardless of whether it was otherwise brief, casual, and 
innocent. An absence will be considered brief, casual, and innocent if 
it occurred before August 15, 2012, and--
    (i) The absence was short and reasonably calculated to accomplish 
the purpose for the absence;
    (ii) The absence was not because of a post-June 15, 2007 order of 
exclusion, deportation, or removal;
    (iii) The absence was not because of a post-June 15, 2007 order of 
voluntary departure, or an administrative grant of voluntary departure 
before the requestor was placed in exclusion, deportation, or removal 
proceedings; and
    (iv) The purpose of the trip, and the requestor's actions while 
outside the United States, were not contrary to law.
    (3) Physical presence in the United States. The requestor must 
demonstrate that he or she was physically present in the United States 
both on June 15, 2012, and at the time of filing of the request for 
Deferred Action for Childhood Arrivals under this section.
    (4) Lack of lawful immigration status. Both on June 15, 2012, and 
at the time of filing of the request for Deferred Action for Childhood 
Arrivals under this section, the requestor must not have been in a 
lawful immigration status. If the requestor was in lawful immigration 
status at any time before June 15, 2012, or at any time after June 15, 
2012, and before the submission date of the request, he or she must 
submit evidence that that lawful status had expired or otherwise 
terminated prior to those dates.
    (5) Education or veteran status. The requestor must currently be 
enrolled in school, have graduated or obtained a certificate of 
completion from high school, have obtained a General Educational 
Development certificate, or be an honorably discharged veteran of the 
United States Coast Guard or Armed Forces of the United States.
    (6) Criminal history and public safety. The requestor must not have 
been convicted (as defined in section 101(a)(48) of the Act and as 
demonstrated by any of the documents or records listed in Sec.  1003.41 
of this chapter) of a felony, a misdemeanor described in this paragraph 
(b)(6), or three or more other misdemeanors not occurring on the same 
date and not arising out of the same act, omission, or scheme of 
misconduct, or otherwise pose a threat to national security or public 
safety. For purposes of paragraph (b)(6) of this section only, a single 
misdemeanor is disqualifying if it is a misdemeanor as defined by 
Federal law (specifically, one for which the maximum term of 
imprisonment authorized is 1 year or less but greater than 5 days) and 
that meets the following criteria:
    (i) Regardless of the sentence imposed, is an offense of domestic 
violence; sexual abuse or exploitation; burglary; unlawful possession 
or use of a firearm; drug distribution or trafficking; or driving under 
the influence; or
    (ii) If not an offense listed above, is one for which the 
individual was sentenced to time in custody of more than 90 days. The 
sentence must involve time to be served in custody and, therefore, does 
not include a suspended sentence.
    (7) Age at time of request. The requestor must have been born on or 
after June 16, 1981. Additionally, the requestor must be at least 15 
years of age at the time of filing his or her request, unless, at the 
time of his or her request, he or she is in removal proceedings, has a 
final order of removal, or has a voluntary departure order.
    (c) Final discretionary determination. Deferred action requests 
submitted under this section are determined on a case-by-case basis. 
Even if the threshold criteria in paragraph (b) are all found to have 
been met, USCIS retains the discretion to assess the individual's 
circumstances and to determine that any factor specific to that 
individual makes deferred action inappropriate.


Sec.  236.23   Procedures for request, terminations, and restrictions 
on information use.

    (a) General. (1) A request for Deferred Action for Childhood 
Arrivals must be filed in the manner and on the form designated by 
USCIS, with the required fee, including any biometrics required by 8 
CFR 103.16. A request for Deferred Action for Childhood Arrivals may 
also contain a request for employment authorization filed pursuant to 8 
CFR 274a.12(c)(33) and 274a.13. If a request for Deferred Action for 
Childhood Arrivals does not include a request for employment 
authorization, employment authorization may still be requested 
subsequent to approval for deferred action, but not for a period of 
time to exceed the grant of deferred action.
    (2) All requests for Deferred Action for Childhood Arrivals, 
including any requests made by aliens in removal proceedings before 
EOIR, must be filed with USCIS. USCIS has exclusive jurisdiction to 
consider requests for Deferred Action for Childhood Arrivals. EOIR 
shall have no jurisdiction to consider requests for Deferred Action for 
Childhood Arrivals or to review USCIS approvals or denials of such 
requests. A voluntary departure order or a final order of exclusion, 
deportation, or removal is not a bar to requesting Deferred Action for 
Childhood Arrivals. An alien who is in removal proceedings may request 
Deferred Action for Childhood Arrivals regardless of whether those 
proceedings have been administratively closed. An alien who is in 
immigration detention may request Deferred Action for Childhood 
Arrivals but may not be approved for Deferred Action for Childhood 
Arrivals unless the alien is released from detention by ICE prior to 
USCIS' decision on the Deferred Action for Childhood Arrivals request.
    (3) USCIS may request additional evidence from the requestor, 
including, but not limited to, by notice, interview, or other 
appearance of the requestor. USCIS may deny a request for Deferred 
Action for Childhood Arrivals without prior issuance of a request for 
evidence or notice of intent to deny.

[[Page 53816]]

    (4) A grant of Deferred Action for Childhood Arrivals will be 
provided for an initial or renewal period of 2 years, subject to DHS's 
discretion.
    (b) Consideration of a request for Deferred Action for Childhood 
Arrivals. In considering requests for Deferred Action for Childhood 
Arrivals, USCIS may consult, as it deems appropriate in its discretion 
and without notice to the requestor, with any other component or office 
of DHS, including ICE and CBP, any other Federal agency, or any State 
or local law enforcement agency, in accordance with paragraph (e) of 
this section.
    (c) Notice of decision. (1) USCIS will notify the requestor and, if 
applicable, the requestor's attorney of record or accredited 
representative of the decision in writing. Denial of a request for 
Deferred Action for Childhood Arrivals does not bar a requestor from 
applying for any benefit or form of relief under the immigration laws 
or requesting any other form of prosecutorial discretion, including 
another request for Deferred Action for Childhood Arrivals.
    (2) If USCIS denies a request for Deferred Action for Childhood 
Arrivals under this section, USCIS will not issue a Notice to Appear or 
refer a requestor's case to U.S. Immigration and Customs Enforcement 
for possible enforcement action based on such denial unless the case 
involves denial for fraud, a threat to national security, or public 
safety concerns.
    (3) There is no administrative appeal from a denial of a request 
for Deferred Action for Childhood Arrivals. The alien may not file, 
pursuant to 8 CFR 103.5 or otherwise, a motion to reopen or reconsider 
a denial of a request for Deferred Action for Childhood Arrivals.
    (d) Termination. (1) Discretionary termination. USCIS may terminate 
a grant of Deferred Action for Childhood Arrivals at any time in its 
discretion with or without issuance of a notice of intent to terminate.
    (2) Automatic termination. Deferred Action for Childhood Arrivals 
is terminated automatically without notice upon:
    (i) Filing of a Notice to Appear for removal proceedings with EOIR, 
unless the Notice to Appear is issued by USCIS solely as part of an 
asylum case referral to EOIR; or
    (ii) Departure of the noncitizen from the United States without 
advance parole.
    (3) Automatic termination of employment authorization. Upon 
termination of a grant of Deferred Action for Childhood Arrivals, any 
grant of employment authorization pursuant to Sec.  274a.12(c)(33) of 
this chapter will automatically terminate in accordance with Sec.  
274a.14(a)(1)(iv) of this chapter, and notice of intent to revoke 
employment authorization is not required pursuant to Sec.  
274a.14(a)(2) of this chapter.
    (e) Restrictions on information use. (1) Information contained in a 
request for Deferred Action for Childhood Arrivals related to the 
requestor will not be used by DHS for the purpose of initiating 
immigration enforcement proceedings against such requestor, unless DHS 
is initiating immigration enforcement proceedings against the requestor 
due to a criminal offense, fraud, a threat to national security, or 
public safety concerns.
    (2) Information contained in a request for Deferred Action for 
Childhood Arrivals related to the requestor's family members or 
guardians will not be used for immigration enforcement purposes against 
such family members or guardians.


Sec.  236.24   Severability.

    (a) Any provision of this subpart held to be invalid or 
unenforceable as applied to any person or circumstance shall be 
construed so as to continue to give the maximum effect to the provision 
permitted by law, including as applied to persons not similarly 
situated or to dissimilar circumstances, unless such holding is that 
the provision of this subpart is invalid and unenforceable in all 
circumstances, in which event the provision shall be severable from the 
remainder of this subpart and shall not affect the remainder thereof.
    (b) The provisions in Sec.  236.21(c)(2) through (4) are intended 
to be severable from one another, from any grant of forbearance from 
removal resulting from this subpart, and from any provision referenced 
in those paragraphs, including such referenced provision's application 
to persons with deferred action generally.


Sec.  236.25   No private rights.

    This subpart is an exercise of the Secretary's enforcement 
discretion. This subpart--
    (a) Is not intended to and does not supplant or limit otherwise 
lawful activities of the Department or the Secretary; and
    (b) Is not intended to and does not create any rights, substantive 
or procedural, enforceable at law by any party in any matter, civil or 
criminal.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
5. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.

0
6. Amend Sec.  274a.12 by revising paragraph (c)(14) and adding 
paragraph (c)(33) to read as follows:


Sec.  274a.12   Classes of aliens authorized to accept employment.

* * * * *
    (c) * * *
    (14) Except as provided for in paragraph (c)(33) of this section, 
an alien who has been granted deferred action, an act of administrative 
convenience to the government that gives some cases lower priority, if 
the alien establishes an economic necessity for employment.
* * * * *
    (33) An alien who has been granted deferred action pursuant to 8 
CFR 236.21 through 236.23, Deferred Action for Childhood Arrivals, if 
the alien establishes an economic necessity for employment.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-20898 Filed 9-27-21; 8:45 am]
BILLING CODE 9111-97-P