Federal Register, Volume 87 Issue 167 (Tuesday, August 30, 2022)

[Federal Register Volume 87, Number 167 (Tuesday, August 30, 2022)]
[Rules and Regulations]
[Pages 53152-53300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18401]

[[Page 53151]]

Vol. 87

Tuesday,

No. 167

August 30, 2022

Part III

Department of Homeland Security

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8 CFR Parts 106, 236, and 274a

Deferred Action for Childhood Arrivals; Final Rule

Federal Register / Vol. 87 , No. 167 / Tuesday, August 30, 2022 /
Rules and Regulations

[[Page 53152]]

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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: Final rule.

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SUMMARY: On September 28, 2021, the Department of Homeland Security
(DHS) published a notice of proposed rulemaking (NPRM or proposed rule)
that proposed to establish regulations to preserve and fortify the
Deferred Action for Childhood Arrivals (DACA) policy 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. After a careful review of the public
comments received, DHS is now issuing a final rule that implements the
proposed rule, with some amendments.

DATES: This rule is effective October 31, 2022.

FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, 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:

Preamble Table of Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the 2021 Proposed Rule
C. Summary of Changes From Proposed Rule to Final Rule
D. Summary of Costs and Benefits
II. Response to Public Comments on the Proposed Rule
A. General Feedback on the Rule
1. General Support for Rule
2. General Opposition to Rule
3. Impacts on DACA Recipients and Their Families
4. Impacts on Other Populations, Including U.S. Workers and
Other Noncitizens
5. Impacts on the Economy, Communities, and States
6. Impacts on Businesses, Employers, and Educational
Institutions
7. Impacts on Migration
8. Other Impacts on the Federal Government
9. Criminality, National Security Issues, and Other Safety
Concerns
10. Creation of a ``Permanent'' Class of Individuals Without
Legal Status
11. Pathway to Lawful Status or Citizenship
12. Other General Reactions and Suggestions
B. Background, Authority, and Purpose
1. Statutory Authority
2. Litigation and Legal Disputes
3. Other Comments and Suggestions
C. Comments on Proposed Provisions
1. Deferred Action/Forbearance From Enforcement Action (Sec.
236.21(c)(1))
2. Employment Authorization (Sec. Sec. 236.21(c)(2) and
274a.12(c)(33))
a. General Comments on Employment Authorization
b. Authority To Provide Employment Authorization to Deferred
Action Recipients
c. Unbundled Process To Make Form I-765 Optional
d. Automatic Termination of Work Authorization
3. Lawfully Present (Sec. 236.21(c)(3)) and Unlawful Presence
(Sec. 236.21(c)(4))
4. Discretionary Determination (Sec. 236.22)
a. General Comments on Discretionary Determination
b. Threshold Criteria
(1) Arrival in United States Under the Age of 16
(2) Continuous U.S. Residence From June 15, 2007
(3) Physical Presence in United States
(4) Lack of Lawful Immigration Status
(5) Education
(6) Criminal History, Public Safety, and National Security
(7) Age at Time of Request
(8) General Comments on Criteria and Comments on Multiple
Overlapping Criteria
5. Procedures for Request, Terminations, and Restrictions on
Information Use (Sec. 236.23)
a. Fees and Fee Waivers
b. USCIS Jurisdiction (Including Comments on Inability To Grant
DACA to Someone in Immigration Detention)
c. Grants and Denials of a Request for DACA (Including
Additional Evidence, 2-Year Period, Consultations, Notice of
Decision)
d. Notice To Appear or Referral to ICE
e. Appeals and Reconsideration
f. Termination of a Grant of DACA (Including Comments on
Discretionary/Automatic Termination and Alternatives)
g. Restrictions on Use of Information Provided by DACA
Requestors (Including Information Sharing and Privacy Concerns)
6. Severability (Sec. 236.24)
7. Advance Parole and Adjustment of Status
D. Other Issues Relating to the Rule
1. Public/Stakeholder Engagement (e.g., Requests To Extend the
Comment Period)
2. Administrative Procedure Act and Rulemaking Requirements
3. Processing Time Outlook (Including Comments on Backlogs)
4. DACA FAQs
5. Other Comments on Issues Relating to the Rule
E. Statutory and Regulatory Requirements
1. Impacts and Benefits (E.O. 12866 and E.O. 13563)
a. Methodology and Adequacy of Cost-Benefit Analysis
(1) Methodology of the RIA
(2) Comments on Population Estimates and Assumptions
(3) Comments on Wage Rages
b. Benefits (No Action Baseline, Pre-Guidance Baseline, or
Unspecified)
c. Regulatory Alternatives
d. Regulatory Flexibility Act (Impact on Small Entities)
e. Other Comments on Costs and Benefits
2. Paperwork Reduction Act (Including Comments on Actual Forms/
Instructions, and Burden Estimates for Forms I-821D and I-765)
3. Other Statutory and Regulatory Requirements (e.g., National
Environmental Policy Act)
F. Out of Scope
III. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
1. Summary of Major Provisions of the Regulatory Action
2. Summary of Costs and Benefits of the Final Rule
3. Background and Purpose of the Rule
4. Cost-Benefit Analysis
a. No Action Baseline
(1) Population Estimates and Other Assumptions
(2) Forms and Fees
(3) Wage Assumptions
(4) Time Burdens
(5) Costs of the Final Regulatory Action
(6) Benefits of the Final Regulatory Action
(7) Transfers of the Final Regulatory Changes
b. Pre-Guidance Baseline
(1) Population Estimates and Other Assumptions
(2) Forms and Fees
(3) Wage Assumptions
(4) Time Burdens
(5) Costs of the Final Regulatory Action
(6) Benefits of the Final Regulatory Action
(7) Transfers of the Final Regulatory Changes
c. Costs to the Federal Government
d. Labor Market Impacts
e. Fiscal Effects on State and Local Governments
f. Reliance Interests and Other Regulatory Effects
g. Discounted Direct Costs, Cost Savings, Transfers, and
Benefits of the Final Regulatory Changes
h. Regulatory Alternatives
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

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Constitutionally Protected Property Rights
L. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks

List of Abbreviations

ACA Affordable Care Act
APA Administrative Procedure Act
AST Autonomous Surveillance Tower
BIA Board of Immigration Appeals
BLS Bureau of Labor Statistics
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CHIP Children's Health Insurance Program
CLAIMS Computer-Linked Application Information Management System
CMS Centers for Medicare & Medicaid Services
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
DHS Department of Homeland Security
DOJ Department of Justice
DREAM Act Development, Relief, and Education for Alien Minors Act
DUI Driving under the influence
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
FAQs Frequently Asked Questions
FLCRAA Farm Labor Contractor Registration Act Amendments of 1974
FR Federal Register
FY Fiscal Year
GED General Education Development
HHS Department of Health and Human Services
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
IOM International Organization for Migration
IRCA Immigration Reform and Control Act of 1986
LPR Lawful Permanent Resident
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
SIJ Special Immigrant Juvenile Classification
SORN System of Record Notice
Stat. U.S. Statutes at Large
STEM Science, technology, engineering, and mathematics
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act of 1995
USBP U.S. Border Patrol
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. Executive Summary

A. Purpose of the Regulatory Action

On June 15, 2012, then-Secretary of Homeland Security (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 from or assign lower priority to removal action
in certain cases for humanitarian reasons, for reasons of
administrative convenience, or on the basis of other reasonable
considerations involving the exercise of prosecutorial discretion.\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 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.'' She reasoned 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 in light of the specific circumstances of
each case.\6\
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\5\ Napolitano Memorandum.
\6\ Id.
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Since 2012, more than 825,000 people have received deferred action
under the DACA policy.\7\ The mean year of arrival in the United States
for DACA recipients was 2001, and the average age at arrival was 6
years old.\8\ In addition, 38 percent of recipients arrived before the
age of 5.\9\ For many, this country is

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the only one they have known as home. In the 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\ Because of the health insurance that their
deferred action allowed them to obtain through employment or State-
sponsored government programs, many DACA recipients have received
improved access to health care and have sought treatment for long-term
health issues.\13\
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\7\ See USCIS, Deferred Action for Childhood Arrivals (DACA)
Quarterly Report (Fiscal Year 2021, Q1) (Mar. 2021), https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf. As of the end of calendar year
2020, there were over 636,000 noncitizens in the United States with
a grant of deferred action under DACA currently in effect (``active
DACA recipients''). 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, Center for American Progress, 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).
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For DACA recipients and their family members, receiving deferred
action has increased DACA recipients' sense of acceptance and belonging
to a community, increased their sense of hope for the future, and has
given them the confidence to become more active members of their
communities and increase their civic engagement.\14\ The DACA policy
has also 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--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\ Many have continued their
studies, and some have become doctors, lawyers, nurses, teachers, or
engineers.\17\ In 2017, 72 percent of the top 25 Fortune 500 companies
employed at least one DACA recipient.\18\ About 30,000 are healthcare
workers, many of whom have helped care for their communities on the
frontlines during the COVID-19 pandemic.\19\ DACA recipients who are
healthcare workers are helping to alleviate a shortage of healthcare
professionals in the United States, and they are more likely to work in
underserved communities where shortages are particularly dire.\20\
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\14\ Gonzales (2019); Jaimes P[eacute]rez (2015); Wong (2020).
\15\ Roberto G. Gonzales, et al., Becoming DACAmented: Assessing
the Short-Term Benefits of Deferred Action for Childhood Arrivals
(DACA), 58 a.m. 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 (Apr. 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\ 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)).
\19\ Svajlenka (2020).
\20\ Angela Chen, et al., PreHealth Dreamers: Breaking More
Barriers Survey Report (Sept. 2019) (hereinafter Chen (2019)), at 27
(presenting survey data showing that 97 percent of undocumented
students pursuing health and health-science careers planned to work
in an underserved community); See also 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 (hereinafter Garcia
(2017)) (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).
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As a result of these educational and employment opportunities, DACA
recipients make substantial contributions in taxes and economic
activity.\21\ 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.\22\ In addition,
through their employment, they make significant contributions to Social
Security and Medicare funds.\23\ Approximately two-thirds of recipients
purchased their first car after receiving DACA,\24\ and an estimated
56,000 DACA recipients own homes and are directly responsible for
$566.7 million in annual mortgage payments.\25\ DACA recipients also
are estimated to pay $2.3 billion in rental payments each year.\26\
Because of these contributions, the communities of DACA recipients--who
reside in all 50 States and the District of Columbia \27\--have grown
to rely on the economic contributions this policy facilitates.\28\ In
sum, despite the express limitations in the Napolitano Memorandum, over
the 10 years in

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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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\21\ See the regulatory impact analysis (RIA) for this final
rule, which can be found in Section III.A. The RIA includes analysis
and estimates of the costs, benefits, and transfers that DHS expects
this rule to produce. 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.
\22\ 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)
(hereinafter Hill and Wiehe (2017)) (analyzing the State and local
tax contributions of DACA-eligible noncitizens in 2017).
\23\ 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) (hereinafter
Maga[ntilde]a-Salgado and Wong (2017)); see also Jose Maga[ntilde]a-
Salgado, Money on the Table: The Economic Cost of Ending DACA,
Immigrant Legal Resource Center (Dec. 2016) (hereinafter
Maga[ntilde]a-Salgado (2016)) (analyzing the Social Security and
Medicare contributions of DACA recipients in 2016).
\24\ Wong (2017).
\25\ Svajlenka and Wolgin (2020).
\26\ Id.
\27\ USCIS, Deferred Action for Childhood Arrivals (DACA)
Quarterly Report (FY 2021, Q1) (Mar. 2021), https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf, at 6.
\28\ 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 rule responds to President Biden's memorandum on January 20,
2021, ``Preserving and Fortifying Deferred Action for Childhood
Arrivals (DACA),'' \29\ in which President Biden stated:
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\29\ 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.\30\
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\30\ Id.

This 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.\31\ It is informed by the Department's experience
with the policy over the past 10 years and the ongoing litigation
concerning the policy's continued viability. It reflects the reality
that DACA supports the Department's efforts to more efficiently
allocate enforcement resources, by allowing DHS to focus its limited
enforcement resources on higher-priority noncitizens. It also is meant
to preserve legitimate reliance interests that have been engendered
through the continued implementation of the decade-long policy under
which deferred action requests will be considered, while emphasizing
that individual grants of deferred action are an act of enforcement
discretion to which recipients do not have a substantive right.
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\31\ 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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This rule recognizes that enforcement resources are limited, that
sensible priorities are vital to the effective use of those resources,
and that it is not generally the best use of those limited resources to
remove from the United States those who arrived here as young people,
have received or are pursuing an education or served in the military,
have no significant criminal history, do not pose a threat to national
security or public safety, and are valued members of our communities.
It recognizes that, as a general matter, DACA recipients, who came to
this country many years ago as children and may not even speak the
language of the country in which they were born, lacked the intent to
violate the law. 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 the economy in multiple ways. This
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, their States, and the
Department itself that have been made possible by the policy. And as
discussed in detail elsewhere, this rule reflects DHS's continued
belief, supported by available data, that DACA does not have a
substantial effect on lawful or unlawful immigration into the United
States. DHS emphasizes that the DACA policy set forth in this rule is
not a permanent solution for the affected population, and legislative
efforts to find such a solution remain critical.
DHS recognizes that this rule comes in the wake of prior attempts
to wind down and terminate the DACA policy.\32\ In rescission memoranda
issued, respectively, by then-Secretary Kirstjen Nielsen and then-
Acting Secretary Elaine Duke, DHS cited potential litigation risk as
one reason that winding down and terminating DACA was warranted. But
upon further consideration, it is DHS's view that those prior
statements failed fully to account for all the beneficial aspects of
the DACA policy for DHS as well as for many other persons and entities,
which in DHS's view outweigh the costs. The position taken in the Duke
and Nielsen Memoranda placed undue weight on litigation risk, failing
to account for all the positive tangible and intangible benefits of the
DACA policy, the economic and dignitary gains from that policy, the
length of time that DACA opponents waited to challenge the policy, and
the risk that rescinding DACA would itself expose DHS to legal
challenge--a risk that indeed materialized in the Regents
litigation.\33\ In short, proper consideration of all pertinent factors
on balance establishes that the DACA policy is well worth the agency
resources required to implement it and to defend it against subsequent
legal challenges.
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\32\ 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); Memorandum from Secretary
Kirstjen M. Nielsen, DHS (June 22, 2018), https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf
(hereinafter Nielsen Memorandum), at 3 (``in setting DHS enforcement
policies and priorities, I concur with and decline to disturb Acting
Secretary Duke's decision to rescind the DACA policy'').
\33\ See Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020).
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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).\34\ DHS has carefully and respectfully considered all aspects of
the analysis in that decision, including that decision's conclusions
about DACA's substantive legality. DHS also invited comments on its
conclusions in the proposed rule and discusses the comments received
herein.
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\34\ Texas v. United States, 549 F. Supp. 3d 572 (S.D. Tex.
2021) (Texas July 16, 2021 memorandum and order).
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B. Summary of the 2021 Proposed Rule

The proposed rule set forth DHS's proposal to preserve and fortify
the DACA policy, which allows 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.\35\ The proposed rule included
the following provisions of the DACA policy from the Napolitano
Memorandum and longstanding USCIS practice:
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\35\ The preamble discussion in the NPRM, including the detailed
presentation of the need to establish regulations implementing the
DACA policy to defer removal of certain noncitizens who years
earlier came to the United States as children, is generally adopted
by reference in this final rule, except to the extent specifically
noted in this final rule, or in the context of proposed regulatory
text that is not contained in this final rule. See 86 FR 53736-53816
(Sept. 28, 2021).
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Deferred Action. The proposed rule provided a definition
of deferred action as a temporary forbearance from removal that does
not confer any right or entitlement to remain in or reenter 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 included 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

[[Page 53156]]

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 stated
that deferred action under DACA would 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 set forth procedures for denial of a
request for DACA or termination of a grant of DACA, the circumstances
resulting in the issuance of a notice to appear (NTA) or referral to
U.S. Immigration and Customs Enforcement (ICE) (RTI), and restrictions
on use of information contained in a DACA request for the purpose of
initiating immigration enforcement proceedings.
In addition to retaining these longstanding DACA policies and
procedures, the proposed rule proposed the following changes:
Filing Requirements. The proposed rule proposed to 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 filing fee of $85 for Form I-
821D, Consideration of Deferred Action for Childhood Arrivals. DHS
proposed to 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).
As noted below, DHS has modified this approach in this final rule.
Employment Authorization. The proposed rule proposed to
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 did not
constitute any substantive change in current policy; it merely proposed
a DACA-specific provision in addition to the existing provision at 8
CFR 274a.12(c)(14) that provides discretionary employment authorization
to deferred action recipients more broadly. Like the provision at 8 CFR
274a.12(c)(14), 8 CFR 274a.12(c)(33) continued to specify that the
noncitizen \36\ must have been granted deferred action and must
establish an economic need to be eligible for employment authorization.
---------------------------------------------------------------------------

\36\ For purposes of this discussion, USCIS uses the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA.
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Automatic Termination of Employment Authorization. The
proposed rule proposed automatically terminating employment
authorization granted under 8 CFR 274.12(c)(33) upon termination of a
grant of DACA.
``Lawful Presence.'' The proposed rule reiterated 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 ``lawful status'' or 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 term ``lawful presence'' historically has been applied
to some persons who are subject to removal (and who may in fact have no
``lawful status''), and whose immigration status affords no protection
from removal, but whose temporary presence in the United States the
Government has chosen to tolerate for reasons of resource allocation,
administrability, humanitarian concern, agency convenience, and other
factors. Lawful presence also encompasses situations in which the
Secretary, pursuant to express statutory authorization, designates
certain categories of noncitizens as lawfully present for particular
statutory purposes, such as receipt of Social Security benefits. See 8
U.S.C. 1611(b)(2); 8 CFR 1.3(a)(4)(vi). The proposed rule also
reiterated longstanding policy that a noncitizen who has been granted
deferred action does not accrue ``unlawful presence'' for purposes of
INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9)(B) (imposing certain
inadmissibility grounds on noncitizens who departed after having
accrued certain periods of unlawful presence in the United States and
again seek admission to the United States).

C. Summary of Changes From Proposed Rule to Final Rule

Following careful consideration of public comments received, DHS
has made modifications to the regulatory text proposed in the proposed
rule, as described below. The rationale for the proposed rule and the
reasoning provided in that rule remain valid, except as described in
this regulatory preamble. Section II of this preamble includes a
detailed summary and analysis of the comments. Comments may be reviewed
in the Federal Docket Management System at https://www.regulations.gov,
docket number USCIS-2021-0006.
The NPRM proposed to codify at 8 CFR 236.23(a)(1) a
modification of the existing filing process and fees for DACA by making
it optional to submit a request for employment authorization on Form I-
765, Application for Employment Authorization (``unbundled process''),
and charging a fee of $85 for Form I-821D, Consideration of Deferred
Action for Childhood Arrivals. That proposal would have maintained 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). Upon careful
consideration of comments received on this NPRM provision, DHS is
adopting the suggestion of a majority of commenters who addressed this
provision to retain the existing requirement that DACA requestors file
Form I-765 and Form I-765WS concurrently with the Form I-821D
(``bundled process''). However, in this rule DHS adopts the fee
structure proposed in the NPRM of an $85 filing fee for Form I-821D, as
well as a Form I-765 filing fee, currently set at $410. This change
codifies in regulation the process that has been in place since the
Napolitano Memorandum was implemented in 2012, while maintaining a
consistent overall current cost to requestors. See new 8 CFR
236.23(a)(1).
The NPRM proposed to codify at 8 CFR 236.22(b)(6) the
longstanding criminal history, public safety, and national security
criteria found in the Napolitano Memorandum. Upon careful consideration
of comments received on this NPRM provision, DHS is revising it to
further clarify that, consistent with longstanding DACA policy,
expunged convictions, juvenile delinquency adjudications, and
immigration-related offenses characterized as felonies or misdemeanors
under State laws are not considered automatically disqualifying

[[Page 53157]]

convictions for purposes of this provision. See new 8 CFR 236.22(b)(6).
The NPRM proposed to codify at 8 CFR 236.23(d)(1) and (2)
DHS's longstanding DACA termination policy, prior to the preliminary
injunction issued in Inland Empire-Immigrant Youth Collective v.
Nielsen, No. 17-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018), with
some modifications. The NPRM proposed that USCIS could terminate DACA
at any time in its discretion with or without a Notice of Intent to
Terminate (NOIT). The NPRM also proposed that DACA would terminate
automatically upon departure from the United States without advance
parole or upon filing of an NTA with the Department of Justice (DOJ)
Executive Office for Immigration Review (EOIR) (a modification from
prior policy of automatic termination upon NTA issuance), but DACA
would not terminate automatically in the case of a USCIS-issued NTA
solely based on an asylum referral to EOIR. The NPRM raised four
alternative approaches and invited comment on these and other
alternatives for DACA termination. After careful consideration of the
comments on this provision and the alternatives suggested in the NPRM
and by commenters, DHS is maintaining in the final rule that USCIS may
terminate DACA at any time in its discretion. However, DHS is revising
this provision to provide that USCIS will provide DACA recipients with
a NOIT prior to termination of DACA, but maintains discretion to
terminate DACA without a NOIT if the individual is convicted of a
national security related offense involving conduct described in 8
U.S.C. 1182(a)(3)(B)(iii), 1182(a)(3)(B)(iv), or 1227(a)(4)(A)(i), or
an egregious public safety offense. DHS also is revising this provision
to provide that USCIS may terminate a grant of DACA, in its discretion
and following issuance of a Notice of Intent to Terminate, for those
recipients who depart from the United States without first obtaining an
advance parole document and subsequently enter the United States
without inspection. See new 8 CFR 236.23(d)(1) and (2).
The NPRM proposed at 8 CFR 236.23(d)(3) that employment
authorization would terminate automatically upon termination of DACA.
This provision included a cross-reference to 8 CFR 274a.14(a)(1)(iv).
However, on February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in
Asylumworks, et al. v. Mayorkas, et al., No. 20-cv-3815, 2022 WL 355213
(D.D.C. Feb. 7, 2022). As a result of the that vacatur, as well as
additional revisions to the DACA termination provisions to eliminate
automatic termination based on filing of an NTA, as described in this
preamble, DHS is modifying 8 CFR 236.23(d)(3) in this final rule to
remove the vacated cross-reference and clarify that employment
authorization terminates when DACA is terminated and not separately
when removal proceedings are instituted. See new 8 CFR 236.23(d)(3).
In this final rule, DHS is clarifying at 8 CFR 236.21(d)
that this subpart rescinds and replaces the DACA guidance set forth in
the Napolitano Memorandum and from this point forward governs all
current and future DACA grants and requests. DHS also clarifies that
existing recipients need not request DACA anew under this new rule to
retain their current DACA grants. Historically, DHS has promulgated
rules without expressly rescinding prior guidance in the regulatory
text itself. However, DHS has chosen to depart from previous practice
in light of the various issues and concerns raised in ongoing
litigation challenging the Napolitano Memorandum. See new 8 CFR
236.21(d).

D. Summary of Costs and Benefits

This rule will result in new costs, benefits, and transfers. To
provide a full understanding of the impacts of the DACA policy, DHS
considered the potential impacts of this rule relative to two
baselines. The No Action Baseline represents a state of the world under
the DACA policy; that is, the policy initiated by the guidance in the
Napolitano Memorandum in 2012 and prior to the July 16, 2021 Texas
decision. (The No Action Baseline does not directly account for the
Texas decision, as discussed further in the Population Estimates and
Other Assumptions section of the Regulatory Impact Analysis (RIA).) The
second baseline considered in the analysis is the Pre-Guidance
Baseline, which represents a state of the world before the issuance of
the Napolitano Memorandum, where the DACA policy does not exist and has
never existed. To better understand the effects of the DACA policy, we
focus on the Pre-Guidance Baseline as the most useful point of
reference.
Table 1 provides a detailed summary of the provisions and their
estimated impacts relative to the No Action Baseline. Table 2 provides
a detailed summary of the provisions and their estimated impacts
relative to the Pre-Guidance Baseline.
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II. Response to Public Comments on the Proposed Rule

A. General Feedback on the Rule

DHS received 16,361 public comments during the comment period for
the NPRM. The majority of comment submissions, excluding duplicates,
non-germane submissions, and a submission that contained only reference
material, originated from individual or anonymous commenters. The
remaining comments came from a range of entities, including advocacy
groups, schools and universities, legal services providers, religious
organizations, businesses, professional organizations, State and local
government, Federal and State elected officials, and unions. Many
comments expressed general support for the rule, with only 3 percent of
the total expressing generalized opposition. A large majority of the
comments indicated support for the proposal to preserve and fortify
DACA, while opposing or offering suggestions to change some provisions.
Of the submissions expressing generalized opposition to the NPRM,
only one was from a government entity; all other government submissions
expressed generalized support or support for some provisions of the
rule while suggesting revisions or providing feedback for others. DHS
has reviewed all the public comments received, and below addresses the
comments related to the substance of the NPRM.
1. General Support for Rule
Comment: Many commenters expressed general support for DACA and the
rule for a variety of reasons. These commenters stated that DACA should
be protected and is beneficial not only to the youth impacted but also
to the United States; that childhood arrivals to the United States
should not be removed from the only home they know; and that the United
States has a

[[Page 53163]]

moral obligation as a nation to retain DACA and to lead by compassion,
honor, and respect. One commenter expressed strong support for deferred
action for DACA recipients as both appropriate and justified, stating
that certain young productive people should not be a priority for
deportation to countries where they have not lived and do not speak the
language. Some commenters agreed that DACA recipients should not be a
priority for removal as these individuals have no criminal history,
pose no threat to national security, contribute to the economy and
their communities, are blameless minors or are ``not morally
blameworthy,'' and have lived in the United States for nearly all their
lives. Several commenters stated that DACA recipients provide rich
cultural traditions, share unique cultural contributions, and create a
sense of community in the United States.
Another commenter said that they were pleased that the rule
clarifies who is eligible for DACA. Another commenter remarked that the
proposed rule would affect government stakeholders or departments,
including DHS, ICE, CBP, EOIR, and State Departments of Motor Vehicles,
and that retaining DACA best respects the rights of these stakeholders.
Response: DHS acknowledges these commenters' support for the rule
and agrees that the DACA policy has benefits that extend not just to
the recipients themselves, but also to their communities and the United
States more broadly. DHS also agrees that removing DACA recipients, who
came to the United States as children and may have only known this
country as their home, would cause significant hardship to DACA
recipients and their family members.
Regarding the comment that retaining the DACA policy respects the
rights of impacted government stakeholders, DHS agrees that this rule
reflects the Department's strong interests in the effective and
judicious use of its limited enforcement resources. This preamble also
discusses comments submitted by a range of government entities and
officials.
2. General Opposition to Rule
Comment: Some commenters generally opposed the proposed rule. These
commenters stated that allowing undocumented noncitizens into the
United States harms U.S. citizens and must be stopped, that DACA should
be abolished, and that DACA requestors and undocumented noncitizens
claiming ``amnesty'' in the United States are ``illegal immigrants''
regardless of how they are characterized. Several commenters said that
the DACA policy was not a constructive way to handle the immigration
challenges that the country is facing and that the Government should
terminate DACA and implement new policies that protect borders and
encourage more legal immigration.
Response: DHS respectfully acknowledges these commenters'
opposition to the rule. This rule reflects the consistent judgment of
DHS that DACA is an appropriate exercise of its prosecutorial
discretion given the realities of the limited resources available to
remove every noncitizen lacking lawful status from the United States.
This rule does not authorize new entrants to the United States; indeed,
it codifies, but does not expand, the threshold criteria for
consideration for deferred action under the DACA policy that have
existed since 2012. DHS has been attentive to all relevant reliance
interests. DHS discusses in greater detail the rule's alleged impact on
migration in Section II.A.7. However, as the rule does not confer
lawful status on DACA recipients or provide DACA recipients with
permanent protection from removal, DHS disagrees with the
characterization of DACA as an amnesty program; it does not give
amnesty to anyone. DHS also does not believe that this rule or the DACA
policy is in conflict with policies that promote maintaining an
orderly, secure, and well-managed border, which are high priorities for
DHS and for the Administration, and except as specifically related to
the DACA policy are generally beyond the scope of the rulemaking.\37\
DHS declines to make changes to the rule in response to these comments.
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\37\ See, e.g., DHS, 2022 Priorities, https://www.dhs.gov/2022-priorities (last updated Mar. 17, 2022).
---------------------------------------------------------------------------

3. Impacts on DACA Recipients and Their Families
Comment: Many commenters expressed support for the proposed rule,
noting the positive impacts of DACA on recipients and their families.
These commenters stated that the rule would provide the opportunity for
DACA recipients to meet their professional goals, such as obtaining a
college degree and pursuing a career, which would allow them to support
their families. Commenters similarly noted that the rule would improve
overall quality of life and provide opportunities to DACA recipients
and their families, reduce fear and anxiety among DACA recipients and
their families, and foster a sense of belonging to the United States,
which, they stated, DACA recipients consider as their home. In support
of these statements, many commenters shared anecdotes about the
positive impacts DACA has had on their or others' livelihoods, such as
earning degrees and entering the workforce, attributing these
opportunities to DACA.
Some commenters stated that writing the DACA policy into Federal
regulations would be an essential step to fortifying DACA and
protecting recipients, especially considering the adverse rulings in
recent litigation. Other commenters expressed their concern that if
DACA were revoked, their lives in the United States would be uprooted
and their ability to pursue their goals would be hindered. They also
stated the positive traits of DACA recipients and referred to them as
kind and hardworking people. A commenter cited an article from a
Brookings Institution blog, Brookings Now, to emphasize the importance
of the policy in allowing children to remain with their families,
attend school, and earn money to support themselves.\38\ A group of
commenters, citing figures contained in the NPRM,\39\ stated that
ending DACA would cause harm to over 250,000 children born in the
United States to DACA recipients, the 1.5 million people in the United
States who share a home with DACA recipients, and other close
connections who would suffer from the loss of security and means for
support that the DACA policy provides to recipients. Another commenter
added that there are over 94,000 DACA and DACA-eligible students in
California alone, and that the policy has a direct impact on current
and future students.
---------------------------------------------------------------------------

\38\ Brennan Hoban, The reality of DACA, the Deferred Action for
Childhood Arrivals program, Brookings Now (Sept. 22, 2017), https://www.brookings.edu/blog/brookings-now/2017/09/22/the-reality-of-daca-the-deferred-action-for-childhood-arrivals-program.
\39\ See 86 FR 53738.
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Some commenters said that, because of DACA, recipients can obtain
driver's licenses, auto insurance, bank accounts, Social Security
numbers, and other benefits that are valuable to their daily lives. A
commenter stated some States offer benefits to DACA recipients that
they otherwise would be unable to obtain, such as in-state tuition and
access to REAL IDs. Several commenters said that many DACA recipients
financially support their families and children who also are living in
the United States.
A commenter stated that DACA should not have to be reinstated by
each president, as the issue of immigration is

[[Page 53164]]

an ethical one and decisions should not be based on politics or
economics. The commenter cited historical examples of the United States
denying entry to immigrants to highlight the negative consequences
immigrants may face when forced to return to their birth countries. The
commenter went on to say that the DACA policy should continue to be in
place indefinitely. Another commenter stated it would be unethical to
send DACA recipients back to their birth countries, as they did nothing
more than travel with their parents at a young age to the United
States.
Response: DHS acknowledges the commenters' support for the rule and
agrees with commenters that DACA has a positive impact on recipients'
ability to pursue employment and education, maintain family unity, and
make contributions to their communities. DHS further agrees that
removing DACA recipients, who have been determined to be a low priority
for enforcement, would cause significant hardship to DACA recipients
and their family members. DHS acknowledges commenters' views that it
would be unethical to remove childhood arrivals from the United States
and agrees that DACA is an appropriate framework for making case-by-
case determinations to defer the removal of certain eligible
noncitizens who arrived in the United States as children.
Comment: Several commenters stated DACA has provided recipients
with educational opportunities and professional growth that they would
not have been able to pursue without the policy. Several commenters
pointed to research finding that DACA significantly increased high
school attendance and high school graduation rates, reducing the
citizen-noncitizen gap in graduation by 40 percent; and also finding
positive, though imprecise, impacts on college attendance.\40\
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\40\ See Elira Kuka, et al., Do Human Capital Decisions Respond
to the Returns to Education? Evidence from DACA, 12 a.m. Econ. J.
293, 295-96 (2020) (``Our results imply that more than 49,000
additional Hispanic youth obtained a high school diploma because of
DACA'') (hereinafter Kuka (2020)); Victoria Ballerini and Miriam
Feldblum, Immigration Status and Postsecondary Opportunity: Barriers
to Affordability, Access, and Success for Undocumented Students, and
Policy Solutions, 80 a.m. J. Econ. and Soc., 165 (2021) (``The
advent of DACA and the extension of in-state tuition and financial
aid to undocumented students in a growing number of states have
increased college-going rates among undocumented students, yet these
students still complete college at lower rates than their peers'');
Wong (2020).
---------------------------------------------------------------------------

Multiple commenters provided statistics on the number of DACA
recipients who are enrolled in postsecondary educational programs. A
group of commenters representing multiple States estimated that up to
37,000 students in the California Community Colleges system are DACA-
eligible noncitizens, more than 19,000 post-secondary students are DACA
recipients in New York, approximately 9,000 post-secondary students in
New Jersey are DACA recipients or DACA-eligible, and that thousands
more DACA recipients are enrolled in public universities and colleges
in other States. The commenters described multiple State regimes under
which DACA recipients or DACA-like populations may qualify for in-state
tuition or other financial assistance. For instance, the commenters
wrote that Minnesota ``has invested in the education of individuals
receiving DACA by extending student childcare grants, teacher candidate
grants, and student loan programs to DACA recipients.''
Similarly, a commenter stated DACA plays a major role in higher
education affordability, remarking that 83 percent of DACA recipients
attend public institutions, a fact that, according to the commenter,
makes accessibility to in-state tuition and financial aid a vitally
important issue. The commenter wrote that 8 States require undocumented
students to have DACA in order to access in-state tuition; 17
additional States and the District of Columbia allow the State's
eligible undocumented students, including DACA recipients, to access
in-state tuition and State financial aid; and 4 States allow their
State's undocumented students access to in-state tuition but not
financial aid. The same commenter stated that work authorization
enables DACA recipients to legally work, save, and pay for their higher
education expenses.
A commenter stated the proposed rule would help numerous DACA
recipient students continue to receive the benefits of DACA such as an
employment authorization document to ease the financial burden of
pursuing higher education and the opportunity to obtain an advance
parole document. A commenter representing a higher education
institution expressed support for the proposed rule and commented that
many opportunities for young people to learn and develop skills are
employment-based, leaving students without employment authorization at
a significant disadvantage academically, professionally, and socially.
The commenter stated that students without employment authorization may
lack income, resume-building experiences, and opportunities to build
networks among peers, staff, and faculty, whereas DACA recipient
students can engage in on-campus jobs and employment-based research
opportunities, and cautiously plan for their futures.
Response: DHS acknowledges that by applying a more formal
administrative framework to forbearance from enforcement with respect
to DACA recipients, DHS has enabled a range of additional benefits to
this population, including increased educational and professional
opportunities that benefit DACA recipients and society at large. DHS
agrees that members of the DACA population have achieved a
significantly higher level of educational attainment than would likely
have occurred without the DACA policy. DHS also appreciates commenters'
acknowledgement of how DACA has increased graduation rates and expanded
access to both earned income and, as a result of actions by certain
States, financial aid, which DACA recipients have used to fund
undergraduate, graduate, and professional degrees.
Comment: Multiple commenters, with some citing studies, said the
rule would provide relief from legal uncertainty and offer a sense of
security, minimizing the anxiety and other physical and mental health
concerns related to the fear of deportation. One commenter referenced
multiple studies to support their assertion that immigrants who fear
deportation are much more vulnerable to deleterious health effects,
including ``heart disease, asthma, diabetes, depression, anxiety, and
post-traumatic stress disorder.'' \41\ Citing additional studies, the
commenter further stated that by removing or limiting the fear of
deportation, ``DHS may be able to directly impact and improve the
health of these individuals who are eligible for DACA, as well as their
families and communities.'' \42\ Another commenter cited a study
finding that DACA significantly reduced the odds of

[[Page 53165]]

individuals reporting moderate or worse psychological distress.\43\
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\41\ Omar Martinez, et al., Evaluating the impact of immigration
policies on health status among undocumented immigrants: A
systematic review, J. of Immigrant and Minority Health, 17(3), 947-
70 (2015), https://doi.org/10.1007/s10903-013-9968-4; Brian Allen,
et al., The children left behind: The impact of parental deportation
on mental health, J. of Child and Fam. Stud., 24(2), 386-92 (2015);
Kalina M. Brabeck and Qingwen Xu, The impact of detention and
deportation on Latino immigrant children and families: A
quantitative exploration, Hisp. J. of Behav. Sci., 32(3), 341-61
(2010).
\42\ Elizabeth Aranda, et al., The Spillover Consequences of an
Enforcement--First US Immigration Regime, Am. Behav. Scientist,
58(13), 1687-95 (2014); Samantha Sabo and Alison Elizabeth Lee, The
Spillover of US Immigration Policy on Citizens and Permanent
Residents of Mexican Descent: How Internalizing ``Illegality''
Impacts Public Health in the Borderlands, Frontiers in Pub. Health,
3, 155 (2015).
\43\ Atheendar Venkataramani, et al., Health consequences of the
US Deferred Action for Childhood Arrivals (DACA) immigration
programme: a quasi-experimental study, The Lancet, Pub. Health,
2(4), 175-81 (2017).
---------------------------------------------------------------------------

Another commenter stated that DACA facilitates the healthy
development of recipients' children. The commenter remarked that DACA
helps families feel comfortable accessing public programs that support
their children and provides income that increases access to healthcare,
nutritious food, and upward mobility. Relatedly, a commenter stated the
DACA policy protects public health because DACA recipients are more
likely to have health insurance than similarly situated undocumented
noncitizens who do not have DACA. The commenter said DACA reduces the
overall burden on the healthcare system because individuals with lawful
status and health insurance are more likely to seek out preventive
care, rather than relying on more expensive, more intrusive, and often
less successful emergency-department care. According to the commenter,
this increased ability to access healthcare also makes it easier to
correctly monitor the public health of the population and respond to
public health issues effectively.
Other commenters stated that DACA reduces noncitizens'
vulnerability to domestic and sexual violence and other exploitation by
helping to ensure they can live safely and be economically independent.
One commenter said that DACA promotes safety for survivors of domestic
violence, sexual assault, trafficking and other gender-based violence
by eliminating the fear that their abusers can contact immigration
authorities if they seek help or attempt to leave an abusive situation.
The commenter went on to say that access to work authorization through
DACA further strengthens survivors' ability to leave abusive or
exploitative situations by enabling them to support themselves and
their families.
Response: DHS appreciates commenters' recognition of the measure of
assurance and stability DACA provides to recipients and their families.
DHS agrees that these benefits help DACA recipients, their families,
and communities. DHS also agrees that DACA facilitates the physical and
mental well-being of recipients and their families by providing, in
many cases, access to employer-sponsored health insurance and stable
income that allows recipients in turn to provide their families with
food, shelter, clothing, and adequate medical care. DHS also
appreciates that in States that have chosen to provide State-only
funded health care programs to DACA recipients, DACA may better protect
public health by expanding access to healthcare.
In addition, DHS agrees that there are reports concluding that by
providing recipients with a measure of security with respect to
immigration matters, the DACA policy reduces psychological stress and
anxiety while also decreasing barriers to interacting with the
healthcare system, helping to promote early detection and treatment of
medical conditions before they worsen into serious conditions requiring
more extensive treatment. DHS also notes that studies have demonstrated
that uncertainty regarding one's immigration situation contributes to
increased levels of stress, and that DACA may reduce such stress for
its recipients.\44\
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\44\ See, e.g., Luz M. Garcini, et al., Health-Related Quality
of Life Among Mexican-Origin Latinos: The Role of Immigration Legal
Status, 23 Ethnicity & Health 566, 578 (2018) (hereinafter Garcini
(2018)) (finding significant differences in health-related quality
of life across immigration legal status subgroups and noting that
increased stress was one factor that diminished well-being for
undocumented immigrants); Osea Giuntella, et al., Immigration Policy
and Immigrants' Sleep. Evidence from DACA, 182 J. Econ. Behav. &
Org. (2021) (hereinafter Giuntella (2021)).
---------------------------------------------------------------------------

DHS also appreciates commenters stating that the DACA policy
supports safety for survivors of gender-based violence, trafficking,
and abuse by enabling economic self-sufficiency and minimizing fear of
an abuser reporting them to immigration authorities, thereby providing
recipients with more confidence to seek help or leave abusive or
exploitative circumstances. DHS notes the existence of multiple
additional immigration options specifically available to certain
victims of crimes.\45\
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\45\ See DHS, Immigration Options for Victims of Crimes, https://www.dhs.gov/immigration-options-victims-crimes (last updated Jan.
30, 2022).
---------------------------------------------------------------------------

Comment: One commenter, referencing evidence from a series of
federal district court cases from Texas regarding the Napolitano
Memorandum, cited a 2017 survey which found that roughly 22 percent of
DACA participants stated they would ``likely'' or ``very likely''
return to their country of origin or elsewhere if DACA were to end, if
they were not given permission to work in the United States, or if
deferred action were not granted. The commenter stated that these data
contradict the Department's rationale regarding the well-being of these
individuals if the proposed rule were not issued, and that ``[m]any if
not all will depart our country for their place of origin or
elsewhere.''
Response: DHS acknowledges the data cited in connection with the
commenter's statement that ``many if not all'' DACA recipients would
leave the United States in the absence of the DACA policy. DHS notes
that approximately 22 percent of DACA recipients surveyed stated in
2017 that they would ``likely'' or ``very likely'' return to their
country of origin if they lost their work authorization or deferred
action or if they could not receive either in the first place. However,
DHS notes that this data is five years old, calls for some degree of
speculation by DACA recipients, and was collected in a particular time
and context. Even taking the results at face value, DHS notes that less
than a quarter of DACA recipients surveyed assessed that they would
``likely'' or ``very likely'' leave the country if DACA ended, whereas
approximately half reported that they were ``unlikely'' or ``very
unlikely'' to leave. DACA recipients necessarily came to the United
States at a very young age, and many have lived in the United States
for effectively their entire lives. For many DACA recipients, the
United States is their only home. Indeed, some DACA recipients do not
even speak the language of their parents' home country. Precisely for
these reasons, DACA recipients often would face significant barriers to
living self-sufficiently in their countries of origin if they lost
their grants of deferred action or work authorization.
Comment: One commenter stated that because the policy was never
intended to be permanent, DACA recipients' reliance interests are very
weak, and ``can be remediated by other means such as grace period and/
or congressional actions.'' Another commenter said it is unclear what
kind of reliance interests DACA recipients have from a policy that did
not receive any public comments or consider any alternatives. Another
commenter stated that DHS made the wrong assumptions regarding existing
DACA recipients' reliance interests and that it is unclear what
reliance interests DACA recipients have when they request DACA when
DACA recipients should be aware of the possibility that the policy
could be terminated at any time.
Response: DHS disagrees with commenters to the extent that they
suggest that DACA recipients lack reliance interests worthy of
meaningful consideration. As explained by the Supreme Court's Regents
decision, the method of DACA's original implementation--including the
Napolitano Memorandum's statement that it ``conferred no substantive
rights'' and the limitation to two-year grants--

[[Page 53166]]

did not ``automatically preclude reliance interests.'' \46\ At the same
time, the Court cautioned that such limitations ``are surely pertinent
in considering the strength of any reliance interests.'' \47\ In the
Court's view, before deciding to terminate the DACA policy,
notwithstanding the method of DACA's original implementation, DHS was
required to assess whether there were reliance interests, determine
whether they were significant, and weigh any such interests along with
``other interests and policy concerns.'' \48\
---------------------------------------------------------------------------

\46\ See Regents, 140 S. Ct. at 1913.
\47\ See id. at 1913.
\48\ See id. at 1909-15.
---------------------------------------------------------------------------

DHS has evaluated the relevant reliance interests--and the policy
stakes more generally--with the Court's decision in mind. With respect
to reliance interests in particular, DHS recognizes, as the Court did,
that the expressly limited and discretionary nature of the deferred
action conferred upon individuals under the DACA policy (who are not
guaranteed a grant or renewal of DACA, whose DACA may be terminated in
USCIS' discretion, and who have no right or entitlement to remain in
the United States) is relevant to the assessment of reliance interests.
At the same time, DHS is aware of the real-world decisions that
approximately 825,000 DACA recipients and their families, employers,
schools, and communities have made over the course of more than 10
years of the policy being in place. While acknowledging and emphasizing
the absence of a legal right, DHS would hesitate to conclude that
reliance on DACA was ``unjustified'' or entitled to significantly
``diminished weight'' in light of the express limitations in the
Napolitano Memorandum.\49\ At the same time, DHS agrees that its
determination regarding the existence of ``serious'' reliance interests
does not dictate the outcome of this rulemaking proceeding, but is just
one factor to consider.\50\
---------------------------------------------------------------------------

\49\ See id. at 1914.
\50\ See id.
---------------------------------------------------------------------------

DHS appreciates the recommendation for a grace period, and observes
that the Court discussed this possibility as well.\51\ DHS believes
that in many cases, a grace period (even a lengthy grace period) would
be insufficient to avoid the significant adverse consequences
associated with terminating the DACA policy, because the planned
termination of the policy on a broad scale (whether within months or
years) would ultimately prove far more harmful to DACA recipients and
their families, employers, schools, and communities than the policy
pursued in this final rule. It would also not meaningfully change the
number of people without lawful status in the United States. DHS notes
that in staying its 2021 vacatur in Texas with respect to renewal
requestors, the district court noted the ``hundreds of thousands of
DACA recipients and others who have relied upon this program for almost
a decade'' and that their ``reliance has not diminished and may, in
fact, have increased over time.'' \52\
---------------------------------------------------------------------------

\51\ See id.
\52\ 549 F. Supp. 3d at 624.
---------------------------------------------------------------------------

DHS acknowledges that while new initial DACA requestors' reliance
interests may be less robust or clear as those of current DACA
recipients, it is also true that among prospective DACA requestors,
there are many who have not yet ``aged in'' to request deferred action
under DACA. These individuals and their families, schools, and
communities may have deferred or made choices in reliance upon their
future ability to request DACA, even as DHS's decision whether to
confer deferred action to a DACA requestor remains a fully
discretionary case-by-case decision, and even though deferred action
itself does not provide any right or entitlement to remain in the
United States.
4. Impacts on Other Populations, Including U.S. Workers and Other
Noncitizens
Impacts on U.S. Workers and Wages
Comment: A few commenters generally opposed the proposed rule based
upon its perceived impact on U.S. workers. Some of these commenters
said that U.S. citizens would lose jobs to DACA recipients, while
others stated more generally that DACA affects jobs and benefits for
U.S. citizens or those with lawful immigration status. Other commenters
stated that DACA recipients and other unauthorized noncitizens steal
jobs from U.S. citizens and depress wages, often for the benefit of
large corporations. One commenter said that DACA results in depressed
wages and a lower standard of living for low-income persons of color.
One commenter stated that the proposed rule made an incorrect and
unfounded assumption that jobs held by DACA recipients cannot be
replaced by someone else. Instead, the commenter stated, terminating
the DACA policy or its employment authorization would provide more jobs
for U.S. workers, benefit communities, reduce unemployment rates, and
potentially increase the wages of U.S. workers. The commenter stated
that DHS's logic in analyzing the impacts of terminating the DACA
policy is flawed, because: (1) jobs currently held by DACA recipients
can be replaced by someone else and (2) the time businesses need to
find replacement workers does not differ from that involved in regular
worker turnover in a market economy and is not based on workers'
immigration status.
Another commenter stated that DHS made a ``misleading and plainly
wrong claim'' that DACA recipients have been essential workers during
the COVID-19 pandemic, arguing that, while some may indeed be essential
workers, most are not. The commenter suggested that, if DHS wanted to
prioritize this population for deferred action, it could have
established additional requirements for DACA eligibility, such as
employer sponsorship or evidence of being an essential worker.
In contrast, one commenter stated that DACA has a positive effect
on wages, as compared to a circumstance where unauthorized noncitizens
continue to work. The commenter wrote that according to the Department
of Labor's National Agricultural Worker Survey, more than two thirds of
farmworkers are foreign-born and a majority of those lack work
authorization.\53\ The commenter stated that DACA helps avoid a
circumstance where undocumented workers are easily exploitable, which
in turn depresses wages and working conditions for other farmworkers.
Citing their own studies, joint commenters also said their research
indicates that not only does the DACA policy not harm low-wage U.S.
citizen workers, but also that it actually boosts the wages and
employment of this population.\54\ The commenters stated that the
position that DACA harms citizens is based on the ``faulty premise''
that if the DACA policy were ended, the population of young
undocumented noncitizens would leave the United States. The commenter
said because many DACA recipients have spent most of their lives in the
United States, and some do not speak the language of their country of

[[Page 53167]]

citizenship, voluntary self-deportation is unlikely.
---------------------------------------------------------------------------

\53\ See U.S. Department of Labor, Findings from the National
Agricultural Workers Survey (NAWS) 2017-2018 (2021), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2014.pdf.
\54\ Ike Brannon and M. Kevin McGee, Estimating the Economic
Impacts of DACA (July 5, 2019), https://ssrn.com/abstract=3420511 or
http://dx.doi.org/10.2139/ssrn.3420511 (hereinafter Brannon and
McGee (2019)). (``Eliminating DACA would merely increase the
competition for the kinds of jobs that tend to have an excess supply
of workers, while reducing the supply of employable skilled workers
in the areas where we have the most acute labor shortages. Overall,
we find that eliminating DACA is lose-lose-lose, benefiting
virtually no one while hurting pretty much everyone.'').
---------------------------------------------------------------------------

Response: DHS acknowledges and shares commenters' desire to ensure
that U.S. workers are not harmed by the DACA policy. As an initial
matter, DHS notes that beginning in August 2021 and continuing into
2022, the U.S. economy experienced more job openings than available
workers.\55\ Nevertheless, DHS agrees, in principle, that jobs
currently held by DACA recipients might potentially be performed by
U.S. citizens or noncitizens with lawful immigration status if DACA
recipients lost their work authorization. However, myriad factors
influence employment rates in a market economy, including prevailing
conditions in specific labor markets and unique characteristics of
local economies, and importantly, these various factors are
interrelated and dynamic rather than independent and static. (In some
circumstances, for example, hiring DACA recipients might actually boost
employment of citizens and those with lawful immigration status, such
as where hiring DACA recipients increases the potential for business
expansion and thus leads to increased employment.) For these reasons,
it is overly simplistic to predict that elimination of employment
authorization for DACA recipients would result in a transfer of jobs
and their corresponding wages from DACA recipients to citizens or those
with lawful immigration status.
---------------------------------------------------------------------------

\55\ Bureau of Labor Statistics data show that as of March 2022,
there were 0.5 unemployed persons per job opening. U.S. Department
of Labor, U.S. Bureau of Labor Statistics, Number of Unemployed
Persons per Job Opening, Seasonally Adjusted (March 2007 through
March 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited May 23, 2022).
---------------------------------------------------------------------------

As discussed in further detail in Section II.A.5, DHS cannot
quantify 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 well as on the hiring practices and
preferences of employers, which depend on many factors, such as worker
skill levels, experience levels, education levels, and training needs,
and labor market regulations, among others. As noted, labor market
conditions are not static; the hiring of DACA workers might contribute
to expansion in business activity and potentially in increased hiring
of American workers.\56\ As discussed in further detail in Section
II.A.5, similar to the citizen population, noncitizens, including DACA
recipients, also pay taxes; stimulate the economy by consuming goods,
services, and entertainment; and take part in domestic tourism. Such
activities contribute to further growth of the economy and create
additional jobs and opportunities for both citizen and noncitizen
populations.\57\ The net effect on employment of citizens is difficult
to specify and might turn out to be positive. DHS believes that these
investments that DACA recipients have made in their communities and in
the country as a whole are substantial.
---------------------------------------------------------------------------

\56\ 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), at 195.
\57\ 86 FR 53801.
---------------------------------------------------------------------------

With regard to wage rates, DHS recognizes that, in general, any
increase in labor supply or improvement in labor supply competition may
potentially affect wages and, in turn, the welfare of other workers and
employers.\58\ But the magnitude and even the direction of the effect
are challenging to specify in the abstract. As with employment, so with
wages: Changes in wages depend on a range of factors and relevant
market forces, such as the type of occupation and industry, and overall
economic conditions. For example, in industries such as healthcare,
agriculture, food services, and software development, labor demand
might outpace labor supply. In such sectors, increases in the labor
supply might not be enough to satisfy labor demand, resulting in
increases in wages 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.\59\
---------------------------------------------------------------------------

\58\ 86 FR 53800.
\59\ 86 FR 53800.
---------------------------------------------------------------------------

With respect to comments regarding the assumptions and methodology
for the labor market impact portion of the NPRM, the bases for DHS's
assumptions and estimates of labor market impacts was discussed
extensively in Section V.A.4.D. of the NPRM. This section included a
discussion of the 2017 National Academies of Sciences, Engineering, and
Medicine (NAS) Report, wherein an expert panel of immigration
economists examined the peer-reviewed literature on displacement and
wage effects of immigrants on native workers and attempted to describe
what consensus exists around decades of findings. To the extent that
this panel found research indicating that noncitizen workers displace
or negatively affect the wages of U.S. citizen workers, most of these
effects occur with the lowest wage jobs, potentially affecting teens
and individuals without a high school diploma.\60\ DHS acknowledged
this potential effect in the NPRM, and explained that the literature
consistently finds these less favorable labor-market effects were more
likely to occur to certain disadvantaged workers and recent prior
immigrants, resulting in ``very small'' impacts for citizens
overall.\61\ The NPRM also described studies discussed in the 2017 NAS
Report's survey of research indicating that highly skilled noncitizen
workers positively impact wages and employment of both college-educated
and non-college-educated citizens.\62\ This is a similar finding to
what commenters pointed to in their own studies.\63\ Additionally, as a
commenter noted, many current and potential DACA recipients would
remain in the United States even without deferred action or employment
authorization. A lack of access to employment authorization by these
individuals would give rise to greater potential for exploitation and
substandard wages, which in turn may have the effect of depressing
wages for some U.S. workers.
---------------------------------------------------------------------------

\60\ 86 FR 53801.
\61\ 86 FR 53801.
\62\ 86 FR 53801.
\63\ See Brannon and McGee (2019).
---------------------------------------------------------------------------

Given the lack of additional evidence provided by the commenter on
the impact of DACA recipients participation in the labor force, DHS has
not substantially revised its analysis in response to this comment.
Impacts on Other Noncitizens
Comment: A commenter stated that DHS never elicited public comment
or considered reliance interests when it proposed shifting costs from
ICE and CBP to fee-paying noncitizens. Some commenters stated that DHS
failed to sufficiently articulate why it prioritizes the DACA
population over other lawful, well-qualified noncitizens, including
international students, F-1 Optional Practical Training (OPT) students
with postgraduate degrees, dependents of H-1B highly skilled workers,
H-4 dependents, or EB-1 applicants. Commenters said that ``hundreds of
thousands'' of individuals in these other groups face the same mental
stress as DACA recipients when unable to work, secure employment
authorization or visa status, or faced with deportation.
Response: As an initial matter, DHS did elicit public comments and
consider reliance interests related to DACA, and so it disagrees with
the claim that it did not do so. In the NPRM, DHS specifically and
explicitly requested ``comments on potential reliance

[[Page 53168]]

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.'' \64\
DHS acknowledges commenters' concerns about the numerous other classes
of noncitizens who face stresses similar to those experienced by the
DACA population with respect to their immigration status, lack of work
authorization, and potential removal from the United States. DHS,
however, scoped the proposed rule to address DACA in particular. DHS
views the DACA-eligible population as particularly compelling
candidates for deferred action by virtue of their entry to the United
States as children, and by virtue of the substantial reliance interests
that have developed over a period of time among DACA recipients and
their families, schools, communities, and employers. DHS does not
disagree with the view that other populations share characteristics
that are compelling in their own way. But DHS has decided as a matter
of policy to focus this rule on preserving and fortifying DACA as
directed by the Biden Memorandum.
---------------------------------------------------------------------------

\64\ 86 FR 53803.
---------------------------------------------------------------------------

Comment: Some commenters stated that resources used on policies
such as DACA increase backlogs, delays, and otherwise bog down the
courts and enforcement agencies, which unfairly affects other
noncitizens. Commenters said that DACA diverts staff and resources away
from lawful immigration programs and increases the costs and delays for
legal immigrants to service the interests of unauthorized noncitizens.
Some commenters stated that DHS failed to consider the reliance
interests of lawful immigrants and nonimmigrants in USCIS expeditiously
adjudicating their petitions. One of these commenters opposed DACA
requests taking precedence over other immigration filings, such as
employment-based visas. The commenter objected that although many
applicants for other immigration benefits are facing long processing
delays due to the COVID-19 pandemic, USCIS shifted resources amid
insufficient staffing levels due to fiscal challenges, built new case
management system enhancements, and trained and reassigned officers to
process initial DACA filings. Other commenters stated that claiming
there is insufficient funding for Congress to enforce immigration laws
on DACA recipients is ``puzzling,'' as the proposed rule would cost the
Department ``millions of dollars'' by not charging the full cost of
processing DACA requests.
Another commenter remarked that the $93 million allocated to DACA
adjudications would have been better spent upgrading USCIS' IT systems
and expanding online filing capabilities. Commenters also stated that
it is unfair to those seeking U.S. citizenship by following immigration
laws and that DACA would make things worse for those legally trying to
become citizens and easier for those who wish to use the United States
for their own benefit. Another commenter urged USCIS to devote its
limited resources to lawful immigration programs that Congress has
authorized instead of diverting manpower, office space, and agency
funds to ``amnesty programs'' benefiting undocumented individuals and
``those who profit off of continuous illegal immigration into the
United States.''
Response: DHS acknowledges the interests of noncitizens seeking
immigrant or nonimmigrant status in the timely adjudication of their
petitions, and USCIS is strongly committed to reducing backlogs and
improving processing times.\65\ DHS notes as it did in the NPRM that
the costs of USCIS are generally funded by fees paid by those who file
immigration requests, and not by taxpayer dollars appropriated by
Congress.\66\ Funds spent on DACA adjudications do not take any
resources away from other workloads, which (with very few exceptions)
may be funded by other fees. Rather, DACA revenue provides USCIS with
the resources it needs to maintain the policy. Consistent with that
authority and USCIS' reliance on fees for its funding, and as discussed
in greater detail in Section II.C.5.a, this rule amends DHS regulations
to codify the existing requirement that requestors file Form I-765,
Application for Employment Authorization, with Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, and re-
classifies the $85 biometrics fee as a Form I-821D filing fee, to fully
recover DACA adjudication costs.\67\
---------------------------------------------------------------------------

\65\ See, e.g., USCIS, USCIS Announces New Actions to Reduce
Backlogs, Expand Premium Processing, and Provide Relief to Work
Permit Holders (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work.
\66\ See INA sec. 286(m), 8 U.S.C. 1356(m).
\67\ See new 8 CFR 236.23(a)(1).
---------------------------------------------------------------------------

In the NPRM and related material,\68\ USCIS explained that the
proposed $85 fee for DACA would not recover the full costs for
individuals who did not request an EAD and pay the full costs of the
Form I-765.\69\ In codifying the requirement that requestors submit
both Forms I-765 and I-821D, USCIS is ensuring that all adjudicative
costs are fully recovered and no costs of DACA are passed on to other
fee-paying populations. As Tables 3 and 4 of the Supplemental Cost
Methodology Document make clear, charging the full cost of $332 for
each Form I-821D would be double-counting each requestor's fair share
of the same indirect costs on both their Form I-821D and Form I-765
given that the estimated additional cost of processing a Form I-821D
attached to a Form I-765 is negligible. Therefore, in light of the
changes made in the final rule, DHS disagrees with the suggestion that
this rule displaces resources, including staffing for other
noncitizens. To the contrary, ending DACA would reduce USCIS revenue
from DACA-related fees, which cover not only the direct costs of
staffing, systems, and other resources to process DACA requests, but
also contribute to recovering an appropriate portion of indirect costs
that USCIS would incur even in the absence of DACA. As explained in the
Supplemental Cost Methodology Document, the cost model proportionately
distributes the total estimated budget for USCIS across various
activities.\70\ Table 4 of the same document lists all of the
activities that contribute to the $332 cost estimate, including
indirect activities in the DACA cost model. For example, the cost model
includes the Management and Oversight activity which includes all
offices that provide broad, high-level operational support and
leadership necessary to deliver on the USCIS mission and achieve its
strategic goals.\71\ DACA's proportionate share of the activity cost is
$140 in Table 4 of the Supplemental Cost Methodology Document. In the
absence of DACA, USCIS would still incur costs for this activity. In
short, as it relates to fees in particular, the DACA policy works in
the interest of other immigrants and nonimmigrants by covering the full
cost of DACA policy without burdening other USCIS customers with
additional costs to fund DACA. Additionally, many investments in case
management system development, training, or previous adjudications are
sunk costs. In other words, ending DACA would not

[[Page 53169]]

recapture time or money invested in the past.
---------------------------------------------------------------------------

\68\ See USCIS, DACA NPRM Supplemental Cost Methodology Docket
(Sept. 28, 2021), https://www.regulations.gov/document?D=USCIS-2021-0006-0008 (hereinafter Supplemental Cost Methodology Docket).
\69\ See 86 FR 53764.
\70\ Supplemental Cost Methodology Docket at 8-10.
\71\ Id. at 6.
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5. Impacts on the Economy, Communities, and States
Impacts on the Economy
Comment: A number of commenters expressed support for the proposed
rule, stating that it would have positive economic effects at local,
State, and national levels. The commenters said that the proposed rule
would allow recipients to start, own, and contribute to businesses,
which could help create jobs for other Americans, and would spur
further economic activity. Commenters also noted the proposed rule
would allow DACA recipients to contribute to State and Federal tax
revenue, and to pursue education that would eventually help them work
in critical jobs, which would decrease labor shortages facing the
United States.
Citing their own research, another commenter stated DACA's
implementation increased the education, employment, and wages of DACA
recipients while also boosting tax revenue and output. The commenter
cited its 2019 study that found that eliminating DACA would result in
the DACA population losing about $120 billion in income, the Federal
Government losing approximately $72 billion in tax revenue, and States
and local governments losing about $15 billion in tax revenue over the
2020-2029 decade.\72\ Likewise, a joint comment of 14 States' Attorneys
General stated that given the economic contributions of DACA
recipients, the effect of a full rollback of DACA would result in a
loss of an estimated $280 billion in national economic growth over the
course of a decade. Another commenter cited multiple studies indicating
that the DACA policy improves labor market prospects of DACA recipients
by expanding ``above the table'' work opportunities. The commenter
stated that in some studies this is captured in simple measures like
reduced unemployment and better wages, while other studies confirm that
DACA recipients find jobs that are experienced as a better ``fit'' and
more satisfactory even at similar wage levels.\73\
---------------------------------------------------------------------------

\72\ Brannon and McGee (2019).
\73\ Pope (2016); Wong (2020); Erin R. Hamilton, Caitlin Patler,
and Robin Savinar, Transition into liminal legality: DACA's mixed
impacts on education and employment among young adult immigrants in
California, Soc. Probs., 68(3), 675-95 (2021).
---------------------------------------------------------------------------

In addition to comments noted above regarding potential
displacement of workers by DACA recipients, multiple commenters
suggested DACA recipients help to fill labor gaps amid labor shortages
in the United States, with a joint comment pointing to the 8.4 million
job seekers as compared to the 10 million job openings in the United
States as of September 2021. These commenters cited statistics that 46
percent of DACA recipients have a bachelor's degree or higher,\74\ and
as a group they tend to be younger, better educated, and more highly
paid than the typical immigrant.\75\ As a result, they are poised to
contribute to the worker pool for higher-skilled jobs that U.S.
employers have reported having difficulty filling with other
workers.\76\ Another joint comment cited a 2019 survey in which 64
percent of small businesses reported they had tried to hire workers,
but of those, 89 percent reported they found few or no qualified
applicants, and asserted that DACA recipients have helped to fill these
worker shortages, especially during the COVID-19 pandemic.\77\ Another
commenter wrote that DACA recipients who pursue higher education help
offset critical shortages of skilled labor in the United States and
become better positioned to support their families, communities, and
the U.S. economy. Some commenters stated that if the DACA policy were
terminated, then worker shortages would increase. For example, a
commenter stated that if DACA recipients were to lose their
protections, an estimated 30,000 front line healthcare workers would be
displaced. Additionally, a commenter stated that DACA recipients fill a
need in the United States for bilingual employees.
---------------------------------------------------------------------------

\74\ Tom K. Wong, et al., DACA Recipients' Livelihoods,
Families, and Sense of Security Are at Stake This November, Center
for American Progress (Sept. 19, 2019), https://www.americanprogress.org/issues/immigration/news/2019/09/19/474636/daca-recipients-livelihoods-families-sense-security-stake-november.
\75\ Ike Brannon and Logan Albright, The Economic and Fiscal
Impact of Repealing DACA, Cato at Liberty (Jan. 18, 2017), https://www.cato.org/blog/economic-fiscal-impact-repealing-daca (hereinafter
Brannon and Albright (2017)).
\76\ William C. Dunkelberg and Holly Wade, Small Business
Economic Trends, Nat'l Fed'n of Indep. Bus. (Oct. 2021), https://www.nfib.com/surveys/small-business-economic-trends, at 1; Anneken
Tappe, Nearly half of American companies say they are short of
skilled workers, CNN (Oct. 25, 2021), https://www.cnn.com/2021/10/25/economy/business-conditions-worker-shortage/index.html.
\77\ Nat'l Fed'n of Indep. Bus., Small Business Optimism Index
(Aug. 2019), https://www.nfib.com/surveys/small-business-economic-trends.
---------------------------------------------------------------------------

Pointing to other labor market and economic benefits of DACA, a
commenter cited a large study showing that DACA recipients play a
critical role in the creation of jobs and increasing spending in local
economies.\78\ Commenters also said that the proposed rule would allow
recipients to contribute to innovation in the U.S. economy and mitigate
aging trends in the U.S. population.
---------------------------------------------------------------------------

\78\ 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/article/daca-recipients-economic-educational-gains-continue-grow.
---------------------------------------------------------------------------

Response: DHS acknowledges some commenters' support for the rule
and agrees that DACA recipients and their households have made
substantial economic contributions to their communities. The
communities in which DACA recipients live, and DACA recipients
themselves, have grown to rely on the economic contributions this
policy facilitates.\79\ As noted above, the Napolitano Memorandum
contains express limitations, but over the 10 years in which the DACA
policy has been in effect, DACA recipients have made major good faith
investments in both themselves and their communities, and their
communities have made major good faith investments in them. In the
Department's judgment, the investments, and the resulting benefits,
have been substantial and valuable.
---------------------------------------------------------------------------

\79\ 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.
---------------------------------------------------------------------------

DHS also acknowledges some commenters' concerns regarding the
economic impact that terminating the DACA policy would have. DHS
appreciates the comments regarding the number of healthcare workers who
are DACA recipients and the role that DACA recipients play in job
creation and spending in local economies. DHS agrees that without DACA,
DACA recipients in the labor market would lose employment.
Additionally, beyond the immediate impact of job loss to DACA workers
and their employers, the impacts to the broader economy would depend on
factors such as the nature of the jobs being performed, the level of
substitutability with similarly skilled workers, and DACA recipients'
ability and willingness to find undocumented employment. Similarly, as
with any other population, DACA recipients participate in the local and
broader U.S. economy in various employment or consumer roles and thus
impact their communities and beyond.
DHS has described the assumptions used in the labor market section
of the

[[Page 53170]]

RIA as well as in the estimated costs and benefits. There are many open
questions here. It cannot be said with certainty whether all jobs held
by DACA recipients are fully replaceable or irreplaceable by other
workers, and local labor market conditions can vary such as industry
characteristics and preferences for specific types of skills by
employers. For example, U.S. employers apply for employment-based
immigrant visas for foreign workers on an annual basis. These
employment-based immigrant visas are for jobs for which there are not
enough domestic workers, domestic workers with the required skills,
and/or domestic workers with the required level of education. In these
cases, domestic labor is not readily available as a substitute. For
example, the medical field exhibits shortages of workers such as
physicians, nurses, and other professionals, and nearly 30,000 DACA
recipients are employed in the medical field.\80\ Indeed, DACA
recipients who are healthcare workers are also helping to alleviate a
shortage of healthcare professionals in the United States, and they are
more likely to work in underserved communities where shortages are
particularly dire.\81\ Whether jobs that DACA recipients occupy can be
easily replaced by other authorized workers is a complex matter that
depends on factors such as the nature of the job, the industry, and the
employer, among others. Nevertheless, DHS considered evidence presented
by these commenters, as well as the empirical findings discussed in the
2017 NAS report. DHS has determined that, on balance, the various
positive economic impacts of DACA outweigh the potential adverse
impacts to the labor market.
---------------------------------------------------------------------------

\80\ See, e.g., Xiaoming Zhang, et al., Physician workforce in
the United States of America: forecasting nationwide shortages,
Human Resources for Health, 18(1), 1-9 (2020); Svajlenka (2020).
\81\ Chen (2019) presents survey data showing that 97 percent of
undocumented students pursuing health and health-science careers
planned to work in an underserved community.
---------------------------------------------------------------------------

Comment: Many commenters cited studies indicating DACA recipients
contribute to Federal, State, and local tax revenue, as well as
Medicare and Social Security. For example, numerous commenters wrote
that DACA recipients pay taxes--$5.6 billion in Federal taxes and $3.1
billion in State and local taxes annually according to one study using
2020 data--and contribute significantly to Social Security and
Medicare.\82\ Another commenter pointed to studies that in California
alone, DACA-eligible noncitizens make $905.4 million in Federal tax
contributions and $626.6 million in State and local tax
contributions,\83\ and that ``reversing'' the DACA policy would result
in a $351 billion loss for the U.S. economy and a $92.9 billion loss in
tax revenue.\84\ Another commenter, however, said that DHS could not
establish these estimates without the names and tax returns of the
affected populations.
---------------------------------------------------------------------------

\82\ See Svajlenka and Wolgin (2020). See also Hill and Wiehe
(2017) (analyzing the State and local tax contributions of DACA-
eligible noncitizens in 2017).
\83\ Higher Ed Immigration Portal, California--Data on Immigrant
Students, https://www.higheredimmigrationportal.org/state/california
(last visited June 9, 2022).
\84\ Logan Albright, et al., A New Estimate of the Cost of
Reversing DACA, Cato Inst. (Feb. 15, 2018), https://www.cato.org/publications/working-paper/new-estimate-cost-reversing-daca
(hereinafter Albright (2018)).
---------------------------------------------------------------------------

Commenters identified other economic contributions of DACA
recipients beyond tax payments. Some commenters cited statistics that
DACA recipients hold $25.3 billion in spending power.\85\ Many
commenters also provided statistics and general information on other
ways DACA recipients contribute to the economy by increasing consumer
spending, purchasing homes and making $566.7 million in annual mortgage
payments, paying $2.3 billion in annual rental payments, buying cars,
applying for lines of credit, and opening businesses.\86\ Commenters
stated that recipients' purchasing power increases once they receive
DACA, citing surveys stating that a majority of DACA recipients
reported having purchased their first car after receiving DACA.\87\
---------------------------------------------------------------------------

\85\ See Nicole Prchal Svajlenka and Trinh Q. Truong, The
Demographic and Economic Impacts of DACA Recipients: Fall 2021
Edition, Center for American Progress (Nov. 24, 2021), https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition.
\86\ See Svajlenka and Wolgin (2020).
\87\ See Wong (2020).
---------------------------------------------------------------------------

Numerous commenters stated that many DACA recipients have been
employed in essential industries such as education, the military, and
healthcare during the COVID-19 pandemic. A commenter wrote that DACA
recipients form a critical, stable, and reliable workforce that enables
retailers to continue to provide goods and services throughout the
pandemic. Some commenters stated that DACA recipients are critical
members of unions and workforces across many sectors of the economy.
Several commenters cited studies stating that DACA recipients boost
wages and increase employment opportunities for all U.S. workers.\88\
Others wrote that there are significant business and economic reasons
to preserve DACA as its recipients drive innovation, create
breakthroughs in science, build new businesses, launch startups, and
spur job growth. Another commenter stated that more than two-thirds of
farmworkers are immigrants and most of them lack work authorization.
The commenters continued that DACA is therefore necessary to protect
immigrants from employer exploitation and abuse. The commenters further
stated that the presence of an easily exploitable workforce depresses
wages and working conditions for all farmworkers, including the
hundreds of thousands of U.S. citizens and lawful immigrants who work
in agriculture.
---------------------------------------------------------------------------

\88\ See, e.g., Brannon and Albright (2017); Albright (2018);
Brannon and McGee (2019); Ike Brannon and M. Kevin McGee, Estimating
the Economic Impact of the 2021 Dream Act (June 6, 2021), https://ssrn.com/abstract=3861371 or http://dx.doi.org/10.2139/ssrn.3861371
(hereinafter Brannon and McGee (2021)); Martin Ruhs and Carlos
Vargas-Silva, The Labour Market Effects of Immigration, Migration
Observatory (Feb. 2021), https://migrationobservatory.ox.ac.uk/resources/briefings/the-labour-market-effects-of-immigration;
Matthew Denhart, America's Advantage: A Handbook on Immigration and
Economic Growth, George W. Bush Inst. 118-19 (3d ed. Sept. 2017),
http://gwbcenter.imgix.net/Resources/gwbi-americas-advantage-immigration-handbook-2017.pdf; Ryan D. Edwards and Mao-Mei Liu,
Recent Immigration Has Been Good for Native-Born Employment,
Bipartisan Pol'y Ctr. (June 2018), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Recent-Immigration-Has-Been-Good-for-Native-Born-Employment.pdf; Gretchen Frazee, 4 Myths
About How Immigrants Affect the U.S. Economy, PBS NewsHour (Nov. 2,
2018), https://www.pbs.org/newshour/economy/making-sense/4- myths-
about-how-immigrants-affect-the-u-s-economy; Alex Nowrasteh, Three
Reasons Why Immigrants Aren't Going to Take Your Job, Cato at
Liberty (Apr. 22, 2020), https://www.cato.org/blog/three-reasons-why-immigrants-arent-going-take-job.
---------------------------------------------------------------------------

Response: DHS appreciates commenters' recognition of DACA
recipients' contributions, both prior and ongoing, tangible and
intangible, to the U.S. economy. DHS agrees members of the DACA
population carry substantial spending power, generate billions in tax
revenue, and fill vital roles across a broad array of industries. DHS
disagrees with the comment that DHS is not able to establish various
estimates without the names and tax returns of the affected
populations. To develop estimates of the quantified costs and benefits
presented in this rule, DHS did not need the names and tax returns of
individuals in the estimated population. Moreover, DHS's methodology
for the analysis is clearly presented in the RIA of this rulemaking.
Commenters, in DHS's view, correctly note that the DACA policy and
DACA recipients improve economic conditions broadly in the United
States by driving innovation, starting businesses, and employing
themselves and others,

[[Page 53171]]

thereby reducing reliance on public assistance (to the extent that such
reliance is possible given eligibility restrictions) and pressure on
the job market for low-skilled workers. DHS also agrees that if members
of the DACA population stopped performing their work, labor shortages
could be exacerbated depending on the industry and employer.
DHS appreciates commenters' concern for the well-being of
agricultural workers. DHS agrees that the ability to lawfully work
empowers employees in all sectors to leave dangerous employment
situations by decreasing fear that reporting exploitative or illegal
employment practices could potentially result in immigration
consequences. Additionally, as mentioned above, a lack of access to
employment authorization raises the potential for exploitation and
substandard wages, which in turn may have the effect of depressing
wages for some U.S. workers. Thus, making employment authorization
available to DACA recipients helps protect U.S. workers and employers
against the possible effects of unauthorized labor.
Other Impacts on Communities
Comment: Some commenters described DACA recipients as law-abiding,
valued members of their communities. Commenters also supported the
proposed rule based on positive impacts on communities and society as a
whole. These commenters stated that the proposed rule would prevent
families and communities from being separated; encourage diversity; and
allow recipients to participate in military service, jobs, and
community service roles that keep communities safe. One commenter
expressed agreement with DHS's overall description of the substantial
reliance interests of communities on DACA recipients.
Other commenters stated that DACA was a crucial part of
facilitating professional licensing eligibility, opening the door to
licensure for many professions, including as a lawyer, teacher, doctor,
nurse, social worker, or psychologist. These commenters further stated
that communities have benefited from the education, professional
expertise, and professional and economic contributions of DACA
recipients in those professions. One of these commenters further stated
that the increasing number of DACA recipients admitted to the Bar
Associations of their respective States has promoted diversity in the
legal profession while also helping to ensure all communities
understand the judicial process and have greater access to justice. A
joint comment by 14 States also identified examples of reliance
interests engendered by community and State-level investments in the
DACA population; for example, losing the benefits of investment into
the training of DACA recipients working in healthcare who have
committed to four years of post-graduation work in underserved Illinois
communities.
Other commenters opposed the rule, stating that undocumented
noncitizens exacerbate affordable housing shortages and that U.S.
citizens should instead be prioritized.
Response: DHS acknowledges some commenters' support of the rule and
agrees, as discussed in this rule, that there is strong evidence that
DACA has had a positive impact on communities in promoting family
unity, encouraging diversity, and opening pathways to military and
other community service roles. DHS also recognizes, as discussed by
commenters below, that the reduction of fear among DACA recipients
contributes to improved law enforcement and community relations, which
improves public safety.
DHS acknowledges the commenter's support for DHS's description of
the substantial reliance interests of DACA recipients and communities.
DHS appreciates the additional reliance interests identified by the
commenter and agrees that some States have structured or amended their
professional licensing requirements in reliance on the existence of the
DACA policy, and therefore have reliance interests in the preservation
of the DACA policy, as do the DACA recipients who have established
careers dependent upon licensure by the State and the entities that
employ professionally licensed DACA recipients.
DHS also acknowledges a commenter's concern that undocumented
noncitizens, including DACA recipients, exacerbate the affordable
housing shortage confronting some communities. Although some studies
have examined the impact of immigration on housing,\89\ the housing
market is influenced by many factors, and DHS is unable to quantify the
potential impact of the DACA policy itself on housing availability,
including affordable housing. It is important to distinguish the effect
of the DACA policy itself from the impact of current DACA recipients
and the DACA eligible population in the United States. Current and
potential DACA recipients have shown, through a course of years, that
many would remain in the United States even without deferred action or
employment authorization. The presence of these noncitizens affects
housing availability regardless of the DACA policy. Nonetheless, DHS
acknowledges that, as some DACA recipients have increased their earning
potential and incomes as a result of the DACA policy, this could
arguably affect the availability of housing for others in those
communities in which these DACA recipients reside. DHS is cognizant
that, like other community impacts of the DACA policy, the impact upon
housing availability can vary across communities. However, DHS has
determined that the many positive impacts of the DACA policy on
communities, as discussed throughout this section, outweigh the
possible impact of DACA recipients, as a subset of a larger
undocumented noncitizen population, on the availability of affordable
housing in some communities.
---------------------------------------------------------------------------

\89\ See, e.g., Abeba Mussa, et al., Immigration and housing: A
spatial econometric analysis, J. of Housing Econ., 35, 13-25 (2017),
https://doi.org/10.1016/j.jhe.2017.01.002.
---------------------------------------------------------------------------

Impacts on States
Comment: Some commenters generally opposed the proposed rule based
on the use of public benefits programs, education resources, and other
costs to the government by noncitizens and DACA recipients. A commenter
stated that USCIS ignores the costs borne by local, State, and Federal
agencies for services provided to DACA recipients, such as Medicaid
services to pregnant women and bilingual education services provided to
students in local schools, which the commenter asserts also result in
higher taxes to U.S. citizens at the State and local levels. Commenters
also stated that U.S. citizens and States have reliance interests
weighing against promulgating this rule. These commenters stated that
the government should take care of U.S. citizens before spending money
on undocumented noncitizens or DACA recipients, that DACA recipients
generally divert limited resources from U.S. citizens, and that the
United States cannot financially or otherwise afford to support
undocumented noncitizens, including DACA recipients.
Other commenters stated that DACA recipients should not be given
special privileges, benefits, or money at the expense of American
taxpayers. A commenter wrote, without accompanying citations or other
support, that DACA recipients ``use much more than their fair share of
social safety net programs especially in places

[[Page 53172]]

like [N]ew [Y]ork where very few questions are asked, fake names and
documentation is given and people without documentation are offered
services citizens are unable to use at times.'' Some commenters stated
that immigrants should prove that they can financially support
themselves and will not be dependent on the U.S. Government. One
commenter stated that in previous decades, DACA recipients have sent
millions of American dollars in remittances back to their countries of
origin with no repercussions.
The Attorney General of Texas submitted the only comment from a
State expressing general opposition to the proposed rule. The comment
stated that DACA increases the State's expenditures associated with
education, healthcare, and law enforcement by incentivizing
unauthorized noncitizens to remain in the country. The comment stated
that Texas spends over $250 million each year in the provision of
social services to DACA recipients. The comment also stated that
unauthorized migration costs Texas taxpayers over $850 million each
year: between $579 million and $717 million each year for public
hospital districts to provide uncompensated care for undocumented
noncitizens; $152 million in annual costs for incarceration of
undocumented noncitizens in the penal system; between $62 million and
$90 million to include undocumented noncitizens in the State Emergency
Medicaid program; more than $1 million for The Family Violence Program
to provide services to undocumented noncitizens for one year; between
$30 million and $38 million per year on perinatal coverage for
undocumented noncitizens through the Children's Health Insurance
Program; and between $31 million and $63 million to educate
unaccompanied noncitizen children each year.
In contrast, a joint comment submitted by the Attorneys General of
14 States \90\ that together represent approximately 61 percent of the
total DACA recipient population discussed how their States have adopted
laws, regulations, and programs in reliance on the existing DACA policy
and have a strong interest in preserving these frameworks and the
benefits they secure to the States, as well as in avoiding the costs
incurred upon adjusting or revoking these frameworks should DACA be
revoked. The Attorneys General said that DACA recipients are vital
members of and workers within their communities, including essential
workers and State government employees. To the extent that their States
employ DACA recipients, they stated that ending the DACA policy would
harm their States' reliance interests because they would lose the
critical skills of these employees and their investments in these
employees, while also incurring costs associated with terminating their
employment and the additional costs of recruiting, hiring, and training
their replacements. These States further noted that the increased
earning power of DACA recipients is economically beneficial to their
States, citing data that DACA recipients' estimated spending power is
approximately $24 billion. The 14 States jointly commented that because
the service sector represents approximately 80 percent of the U.S. GDP
and 86 percent of total employment, and the service sector relies on
consumer spending, this purchasing power is critical to the overall
economic health of their States. Additionally, they noted that due to
the economic stability and ability to make long-term plans provided by
a DACA-related grant of deferred action and employment authorization,
approximately a quarter of DACA recipients aged 25 and older have been
able to purchase homes, creating jobs and boosting spending in their
States, including California, where DACA recipients make yearly
mortgage payments totaling $184.4 million. These States added that
ending DACA, or limiting it to current active recipients, would result
in significant losses in tax revenue--$260 million in State and local
taxes over the next decade in California alone--and negatively impact
their States' residents. They also noted that ending DACA would result
in an estimated loss of $33.1 billion in Social Security contributions
and $7.7 billion in Medicare contributions--funds that are critical to
ensuring the financial health of these programs, upon which residents
of their States depend.
---------------------------------------------------------------------------

\90\ The joint comment was submitted by the Attorneys General of
California, New Jersey, New York, Colorado, Connecticut, Delaware,
Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
and Washington, DC.
---------------------------------------------------------------------------

These States also asserted that opponents of the DACA policy have
failed to demonstrate a single law enforcement cost attributable to the
policy, and cited an article in which numerous police chiefs,
prosecutors, and other law enforcement professionals advocated for the
continuation of DACA.\91\ They went on to identify that mistrust of
communities toward law enforcement is a significant challenge that
results in individuals being less likely to report being witnesses to
or victims of crime. The commenters cited one recent study finding that
in neighborhoods where 65 percent of residents are immigrants, there is
only a 5 percent chance that a victim will report a violent crime,
compared with a 48 percent chance in a neighborhood where only 10
percent of residents are born outside the United States (although the
relationship in general was nonlinear).\92\ Citing survey results that
59 percent of DACA recipients confirmed they would report crimes that
they would previously have not reported in the absence of DACA, these
States asserted that the benefits of such increasing cooperation far
outweighs any alleged ways in which DACA hinders law enforcement.
---------------------------------------------------------------------------

\91\ Georgetown Law, Law Enforcement Leaders and Prosecutors
Defend DACA (Mar. 20, 2018), https://www.law.georgetown.edu/news/law-enforcement-leaders-and-prosecutors-defend-daca.
\92\ See Min Xie and Eric P. Baumer, Neighborhood Immigrant
Concentration and Violent Crime Reporting to the Police: A
Multilevel Analysis of Data from the National Crime Victimization
Survey, 57 Criminology 237, 249 (2019), https://perma.cc/QS5RK867.
---------------------------------------------------------------------------

The joint comment from these 14 States also disputed the notion
that DACA imposes significant healthcare costs on the States, and
stated that, to the extent there are costs, they do not outweigh the
strong benefits and healthcare cost savings of DACA. They stated that
DACA saves States money by allowing DACA recipients to receive
employer-sponsored health insurance or to purchase insurance directly
from carriers. Without DACA, they stated, those individuals would have
to rely more on emergency services, as opposed to preventative
services, in order to meet their healthcare needs, thereby increasing
the costs to both the States themselves and their healthcare systems.
The 14 States also stated that DACA reduces healthcare costs because
its positive population-level mental health consequences reduce, rather
than increase, State healthcare costs.
The joint comment from the States also characterized as a ``false
premise'' the assumptions of opponents of the DACA policy that DACA
recipients would depart the United States if the policy ended. They
reasoned that, given the unlikelihood of large-scale departure of DACA
recipients in the event DACA were terminated, the need to reduce
healthcare expenses by making recipients eligible for insurance and by
improving health outcomes becomes paramount. The States went on to
explain that a number of States have structured healthcare access
programs in reliance on the existence of DACA, and would incur costs to
amend the programs were DACA limited or terminated. The commenters
wrote that for example, New York currently uses

[[Page 53173]]

State-only funds to provide full health coverage for deferred action
recipients (including DACA recipients, whom New York State considers to
be Permanently Residing Under Color of Law (PRUCOL)), while noncitizens
without DACA or another qualified immigration status only qualify for
emergency Medicaid coverage, which provides treatment of emergency
medical conditions. Were DACA to be terminated or limited, the States
explained, New York would incur the costs of seeking a State
legislative change to maintain coverage for DACA-eligible persons
(again, with State dollars only), or limit Medicaid coverage to
treatment of emergency conditions for some or all of these individuals.
These 14 States also stated that DACA does not increase the States'
educational costs, and that opponents of the DACA policy have not
identified specific costs attributable to DACA, citing numerous other
States' declarations in the record in Texas. The joint commenters
stated that the assertion of educational costs attributable to DACA
rely on, as discussed above, a flawed assumption that in the absence of
DACA, recipients would depart the United States and thus reduce the
cost of providing legally required public K-12 education to DACA
recipients. Furthermore, the joint comment noted that the obligation
imposed by Plyler v. Doe requires States to educate students regardless
of their immigration status; thus, every State has the same
responsibility for educating DACA-eligible students regardless of
whether the DACA policy continues to exist. Rather than impose costs,
the 14 States asserted that DACA benefits State and local governments
by eliminating a major source of challenges for undocumented students
and those with mixed-status families, allowing them to thrive and
contribute to their communities and State economies, to the benefit of
the entire community and to the States themselves. The 14 States
pointed to research that DACA significantly increased both school
attendance and high school graduation rates, closing the gap between
citizen and noncitizen graduation rates by more than forty percent.\93\
---------------------------------------------------------------------------

\93\ See, e.g., Kuka (2020). Moreover, deferred action actually
saves local governments money by increasing attendance and
preserving critical sources of funding to public school districts
across the United States. School districts in many States receive
funding based on primary and secondary school attendance; poor
attendance rates jeopardize that funding. Laura Baams, et al.,
Economic Costs of Bias-Based Bullying, 32 Sch. Psychol. Q. 422
(2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5578874;
Chandra Kring Villanueva, Texas Schools at Risk of Significant
Funding Cuts due to Pandemic-Related Attendance Loss, Every Texan
(Feb. 22, 2021), https://everytexan.org/2021/02/22/keeping-schools-whole-through-crisis. In California, for example, student
absenteeism costs public schools an estimated $1 billion per year.
See Laura Baams, et al., supra, at 3.
---------------------------------------------------------------------------

Another joint comment stated that States lack any reliance interest
in the nonexistence of a DACA policy because States are not harmed by
how the Federal Government prioritizes and enforces its immigration
laws. The rule as proposed, the commenters stated, does not harm any
reliance interests on the part of States. The commenters stated that
the reliance interests thus weigh strongly in favor of DACA recipients
and of other individuals who benefit from a DACA policy and from other
policies that spring from the same statutory authority.
Response: DHS acknowledges commenters' concerns about diversion of
resources to DACA recipients. After carefully considering each of the
concerns, DHS recognizes that while the final rule could result in some
indirect fiscal effects on State and local governments, the size and
even the direction of the effects is dependent on many factors, making
for a complex calculation of the ultimate fiscal impacts. Section
III.A.4.e of the RIA discusses fiscal impacts in more detail.
DHS disagrees with a comment that it ignored possible fiscal
impacts at the local, State, and federal levels. The RIA specifically
addresses potential fiscal impacts, both positive and negative, at
various levels of government. As the commenter notes, a comprehensive
quantified accounting of local and State fiscal impacts specifically
due to DACA is not possible due to the lack of individual-level data on
DACA recipients who might use State and local programs or contribute in
a variety of ways to State and local budgets. In general, however, DACA
is not a qualifying immigration category for Medicaid eligibility and
does not affect access to public schools. DHS is aware that some State
and local jurisdictions have chosen to expand assistance to deferred
action recipients in certain contexts.
Furthermore, the claim of a causal link between Texas fiscal
spending and the DACA policy relies to a significant extent on the
assumption that in the absence of DACA, a substantial portion of DACA
recipients who would otherwise impose a net fiscal burden on the States
would depart the United States. DHS welcomed comments on all aspects of
the NPRM, but received scant evidence in support of this
assumption.\94\ Even in 2012 when the DACA policy was first announced,
DACA-eligible persons would already have been residing in the United
States for five years, without deferred action. At this stage, an
additional ten years on, many DACA recipients have developed deep ties
to the United States and have children and close relations with family
and friends (and have also just entered their prime working years).
Many recipients know only the United States as home, and English is
their primary language. Leaving the country would mean leaving behind
children, parents, other family members, and close friends. In short,
DHS believes that DACA-eligible individuals generally would be unlikely
to leave the United States if the DACA policy were discontinued. DHS
thus does not believe that reliable evidence supports the conclusion
that a decision to terminate the DACA policy would result in a net
transfer to States. Although commenters provided some estimates of DACA
recipients' fiscal effects on States, it is worth noting that
commenters' concerns focus on the marginal effect of each DACA
recipient on State and local revenues as well as expenditures. While
some DACA recipients might leave the country if the program did not
exist, DHS has no basis to assume those individuals would cause
decreases in State expenditures that exceeded their contributions to
tax revenue. Again, in the RIA, DHS presents additional available
evidence and discusses possible labor market and fiscal impacts of the
DACA policy.
---------------------------------------------------------------------------

\94\ In contrast, DHS is aware of a peer-reviewed study that
found no statistical causal link between the DACA policy and border
crossings. For details, see Catalina Amuedo[hyphen]Dorantes and
Thitima Puttitanun, DACA and the Surge in Unaccompanied Minors at
the U.S.-Mexico Border, International Migration, 54(4), 102-17
(2016) (hereinafter Amuedo[hyphen]Dorantes and Puttitanun (2016)).
---------------------------------------------------------------------------

DHS also acknowledges the comment of 14 other States--including
multiple states in which large numbers of DACA recipients currently
reside--that DACA does not increase States' law enforcement,
healthcare, or education costs, and, if anything, reduces such costs.
With respect to law enforcement in particular, DHS agrees that DACA
mitigates a dilemma faced by those without lawful status; by virtue of
the measure of assurance provided by the DACA policy, DACA recipients
are more likely to proactively engage with law enforcement in ways that
promote public safety. With respect to health care and education, DHS
appreciates that some of these States, as well as some localities, have
enacted laws

[[Page 53174]]

making DACA recipients eligible for more benefits than they otherwise
would be eligible for without DACA, because DACA recipients are not
``qualified alien[s]'' as defined in the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), 8 U.S.C. 1641(b),
and are, therefore, generally ineligible for public benefits at the
Federal, State, and local levels.\95\ These States have made a judgment
that providing such benefits to DACA recipients is beneficial to the
State in some way. Other States have made different judgments, and as a
consequence do not bear a substantially greater burden with respect to
healthcare or education than they would if DACA were terminated and its
current recipients remained in the United States regardless. In fact,
because the DACA policy permits DACA recipients to obtain lawful
employment, in many cases giving them access to private health
insurance and reducing their dependence on state-funded healthcare,
eliminating DACA could increase State and local healthcare
expenditures.
---------------------------------------------------------------------------

\95\ See 8 U.S.C. 1641(b), 1611 (general ineligibility for
Federal public benefits), and 1621 (general ineligibility for State
public benefits).
---------------------------------------------------------------------------

In connection with this discussion of fiscal burdens, DHS
reiterates its understanding that DACA recipients make substantial
contributions in taxes and economic activity.\96\ As discussed in the
NPRM and this rule, and as cited by numerous commenters, according to
one study, DACA recipients and their households pay approximately $5.6
billion in annual Federal taxes and approximately $3.1 billion in
annual State and local taxes.\97\ DHS notes that the estimates from
this study show that in 2020, the State and local tax contributions of
the 106,090 DACA recipients in Texas amounted to $409.9 million,\98\
exceeding the $250 million that the comment from the Attorney General
of Texas stated that Texas spends each year in the provision of social
services to DACA recipients. DACA recipients also make significant
contributions to Social Security and Medicare funds through their
employment.\99\ The governments and residents of States in which DACA
recipients reside benefit from increased tax revenue due to the
contributions of DACA recipients, and the States and their residents
have also benefited and come to rely on the broader economic
contributions this policy facilitates.
---------------------------------------------------------------------------

\96\ 86 FR 53738 and 53802.
\97\ Svajlenka and Wolgin (2020); see also Hill and Wiehe
(2017).
\98\ Svajlenka and Wolgin (2020).
\99\ Maga[ntilde]a-Salgado and Wong (2017); see also
Maga[ntilde]a-Salgado (2016).
---------------------------------------------------------------------------

With respect to comments suggesting that DHS should consider a DACA
requestor's self-sufficiency, DHS does not believe it is necessary to
supplement the rule in this way, both because there is little evidence
that DACA results in a net fiscal burden on governments, and because
the DACA criteria (such as the criteria related to educational
attainment, age, and criminality) relate to the contributions DACA
recipients have made and will make in the future. Additionally, the
DACA policy allows its recipients to work lawfully in the United States
and has allowed them to significantly increase their earning power over
what they could earn without DACA.\100\ Finally, although DACA
recipients may have sent remittances abroad, DHS lacks data about the
amount of those remittances or about the effect the DACA policy has had
on this amount, and notes that many citizens and noncitizens both with
and without lawful immigration status or deferred action send a portion
of their income abroad.
---------------------------------------------------------------------------

\100\ Wong (2017).
---------------------------------------------------------------------------

As discussed in Section II.A.3, the DACA policy has encouraged its
recipients to make significant investments in their education and
careers. They have continued their studies, and some have become
doctors, lawyers, nurses, teachers, or engineers.\101\ About 30,000 are
healthcare workers, and many of them have helped care for their
communities on the frontlines during the COVID-19 pandemic.\102\ In
addition, DACA recipients have contributed substantially to the U.S.
economy through taxes and other economic activity. DHS believes these
benefits of the rule outweigh the potential negative impacts identified
by some commenters. DHS therefore declines to make any changes in
response to these comments.
---------------------------------------------------------------------------

\101\ See Gonzales (2019); Svajlenka (2020); Wong (2020); Zong
(2017).
\102\ Svajlenka (2020). DACA recipients who are healthcare
workers also are helping to alleviate a shortage of healthcare
professionals in the United States and they are more likely to work
in underserved communities where shortages are particularly dire.
Chen (2019); Garcia (2017).
---------------------------------------------------------------------------

DHS also acknowledges the joint commenters' statement that States
have no reliance interests in the nonexistence of a DACA policy. To the
extent that any State may have reliance interests in the nonexistence
of DACA, DHS believes that those interests are significantly diminished
by the fact that the DACA policy has been in place for a decade. After
careful consideration, DHS agrees with these commenters that the
reliance interests weigh strongly in favor of recipients and others who
benefit from the DACA policy, including the States themselves, in
reliance on DACA as codified in this rule. After carefully considering
these comments, DHS therefore declines to make any changes in response
to them.
6. Impacts on Businesses, Employers, and Educational Institutions
Impacts on Businesses and Employers
Comment: A commenter said that businesses need DACA recipients'
continued contributions as they work to reinvigorate the U.S. economy,
and that failure to act would have a significant impact on businesses
that rely on DACA recipients as employees and customers. Several
commenters also stated that the proposed rule would provide a sense of
security to organizations that employ recipients of DACA.
A group of commenters similarly said that the proposed rule would
protect the substantial reliance interests of their very large
companies in current and future employment relationships with DACA
recipients. These commenters noted that more than 75 percent of the top
25 Fortune 500 companies--together representing every major sector of
the U.S. economy and generating almost $3 trillion in annual revenue--
employ Dreamers.\103\ They further stated that DACA recipients have
helped keep the U.S. economy running, particularly during the COVID-19
pandemic, and help ameliorate labor shortages. The commenters stated
that ending DACA would cripple the nation's healthcare system and cost
small business employers over $6 billion in turnover costs from losing
investments in training DACA workers and having to recruit and train
potentially less productive, new workers. Noting that DACA allows
recipients to pursue careers that match their skills without the fear
of deportation, the commenters stated that the policy therefore makes
the economy more productive and decreases the extent to which
immigrants compete with American citizens for lower income jobs. The
commenters also identified businesses' reliance interests in DACA
because employed DACA recipients have increased purchasing power, and
that the rule, as proposed, would bring

[[Page 53175]]

stability to the DACA population, which has become an integral part of
the U.S. economy.
---------------------------------------------------------------------------

\103\ Use of the term ``Dreamers'' as a descriptor for young
undocumented immigrants who came to the United States as children
originated with the Development, Relief, and Education for Alien
Minors Act (DREAM Act), a legislative proposal first introduced in
2001 (S.1291, 107th Cong.) that, if passed, would have granted them
protection from removal, the right to work, and a path to
citizenship.
---------------------------------------------------------------------------

A joint comment submitted by an educational institution and
corporation stated that they have considerable reliance interests in a
DACA policy because they have enrolled and employed DACA recipients who
have made significant contributions to their institutions. The
commenters further stated that DACA recipients contribute to the
educational institutions they attend, and that communities and
employers depend upon them and have invested significant time and money
in training them, such that hiring and training replacements would cost
employers $6.3 billion.
Response: DHS agrees that employers, including businesses and
educational institutions, have relied upon the existence of the DACA
policy over the course of 10 years and that restricting DACA to
currently active recipients or ending the DACA policy altogether would
harm the reliance interests identified by these commenters, including
their reliance interests in the labor and spending contributions of
DACA recipients. For those employers that hire DACA recipients with
highly specialized skills and higher levels of education, if the DACA
policy were to end, some of these employers could face challenges and
higher costs in finding replacement labor for these highly specialized
workers, assuming all else remains constant. Regarding DACA recipients'
spending power, DHS agrees that the DACA policy does bring stability to
the DACA population with employment authorization that enables them to
earn compensation that, in turn, is spent, at least in part, in the
economy. The preamble details further the motivations for this rule and
the RIA the potential economic, labor, and fiscal impacts.
Impacts on Educational Institutions
Comment: As discussed in greater detail in Section II.A.5, some
commenters opposed the proposed rule, stating that DACA recipients, and
undocumented students in general, displace citizens from schools and
cost localities and States to provide public primary and secondary
schooling to these students. One of these commenters pointed to a study
that found that, in 1994, lawful and unlawful immigration resulted in
$4.51 billion in primary and secondary education costs. Meanwhile, as
discussed above, another commenter stated that Texas spends between $31
million and $63 million to educate unaccompanied noncitizen children
each year. Another commenter also opposed the rule, saying that DACA
recipients get special scholarships.
Response: DHS acknowledges these commenters' concerns that
undocumented noncitizen students, including DACA recipients, receive
education that is publicly funded. As discussed in greater detail in
Section II.A.5 and Section III.A.4.e in the RIA, DHS recognizes that
although the rule may result in some indirect fiscal effects on State
and local governments, the direction of effects is dependent on many
factors. DHS, however, notes that the Texas Attorney General cited the
cost to Texas of educating unaccompanied noncitizen children, not DACA
recipients specifically. Given the threshold criteria requiring that a
noncitizen have continuously resided in the United States since June
15, 2007, it is a reasonable assumption that most unaccompanied
children presently enrolled in Texas public schools are not potentially
DACA eligible. Indeed, two-thirds (61 percent) of active DACA
recipients are between the ages of 20 and 29, with most other
recipients between the ages of 30 and 45 (38 percent), and therefore
unlikely to be enrolled in a public K-12 school.\104\ As of June 2022,
the youngest noncitizens who meet DACA threshold criteria are generally
in the 10th grade. DHS recognizes that other noncitizens who are
enrolled in publicly funded K-12 schools may meet threshold criteria
but have not previously requested DACA; however, as discussed in the
RIA, retention of the existing threshold criteria means there is a
diminishing number of noncitizens who may make initial DACA requests
under this rule.
---------------------------------------------------------------------------

\104\ DHS, USCIS, Office of Performance and Quality (OPQ),
Electronic Immigration System (ELIS) and Computer-Linked Application
Information Management System (CLAIMS) 3 Consolidated (queried Apr.
30, 2022).
---------------------------------------------------------------------------

With respect to assertions that DACA recipients receive special
scholarships, DHS recognizes that some educational institutions and
States have established scholarships or other financial aid to support
undocumented students, including DACA recipients. DHS cannot determine
the degree to which, in the absence of a DACA policy, these underlying
resources would instead be directed toward U.S. citizens or other
students with lawful status. As for assertions that DACA recipients
displace U.S. citizens in schools or colleges or otherwise impact
educational resources, DHS generally agrees that educational resources
in primary and secondary education are also shared by those enrolled
DACA recipients as enrollment at these educational levels generally is
not dependent on immigration status. Enrollment in primary or secondary
education by undocumented noncitizens is not predicated on this rule.
Undocumented noncitizens without DACA can enroll in these institutions
regardless of this rule. The commenter's assertions also assume that
DACA recipients and/or their family members do not contribute
economically and fiscally to their local schools and communities, that
educational resources are fixed, and that local laws and regulations,
economic conditions, and demographics remain constant. Many factors can
impact local educational resources, including the level of local
immigration, and a static analysis cannot appropriately assess a
dynamic issue such as this. Assuming that DACA recipients only draw
down government resources without also analyzing their beneficial
contributions distorts realistic fiscal impacts, which are discussed in
more detail in Section III.A.4.e in the RIA. DHS further notes that
educational institutions (some of which accept undocumented students
without deferred action as well) expressed widespread support for the
proposed rule, as discussed below, which stands in contrast to some
commenters' views that the DACA policy imposes a substantial strain on
educational resources.
Comment: Numerous universities and colleges commented that DACA and
DACA recipients positively impact their institutions, and that they
have reliance interests in the various benefits that DACA recipients
bring to their campuses. Commenters described DACA recipient students
as bright, dedicated, and resilient. They identified various missions
and core philosophies of their institutions, including diverse and
inclusive learning environments that prepare students for living and
working in an increasingly diverse workforce and society, social
justice, developing global citizens, and advancing research, and
commented that DACA recipient students make meaningful and important
contributions to those missions.
Commenters also noted that the DACA policy enables them to hire
DACA recipient students as teaching assistants, tutors, and
researchers, among other on-campus work-study positions, benefiting the
DACA recipients themselves, other students, and the universities more
broadly. Commenters also stated that the availability of advance parole
has enabled DACA recipients to pursue study abroad, fellowships,
research, and other academic programs or related

[[Page 53176]]

employment opportunities that significantly enhance the intellectual
and professional development of individual students and increase their
contributions to their campuses.
A comment jointly submitted by 14 States also identified the
reliance interests of public universities and colleges in their States,
which rely upon significant tuition revenue from DACA recipient
students, and have made significant investments in financial aid and
other programs to support DACA recipient students. These commenters
further stated that such investments are ``consistent with their
interests in ensuring diversity and nondiscrimination and in developing
a well-educated workforce that can contribute to the States' overall
economies.''
Another commenter highlighted studies estimating that there are
approximately 9,000 DACA recipients working as teachers in the United
States. The commenter stated that teacher shortages have become more
strained during the COVID-19 pandemic, and the removal forbearance and
work authorization provisions of DACA are critical to ensure the
quality education of children in the United States. Similarly, a
university commented that expanding pathways to DACA would have an
immediate positive impact on the number of teachers its teacher
preparation program could produce, addressing needs in their State to
increase the number of teachers who reflect the State's diverse
demographics.
Response: DHS acknowledges the commenters' discussion of specific
reliance interests that educational institutions have in the
preservation of the DACA policy as codified in this rule. DHS agrees
that educational institutions have relied upon the existence of the
DACA policy over the course of 10 years in the form of DACA recipients'
tuition payments and academic and research contributions; and in
preparing additional teachers to serve schools throughout the country.
DHS agrees that restricting DACA to currently active recipients or
ending the DACA policy altogether would harm the reliance interests
identified by these commenters, and that the benefits of DACA
identified by these institutions weigh in favor of promulgating this
rule.
7. Impacts on Migration
Comment: Some commenters stated that DACA encourages criminals to
enter the United States, rewards criminal activity, ``promotes chain
migration that the nation cannot afford,'' and incentivizes breaking
U.S. laws. Similarly, some commenters opposed the proposed rule on the
basis that the creation of DACA resulted in a ``pull factor'' for
additional migration to the United States, and stated that the United
States is currently apprehending large numbers of minors at the
Southwest border. The commenters stated the United States should not
continue to reward those who enter the country unlawfully, and that the
rule as proposed would incentivize unauthorized immigration. A
commenter also characterized DACA as an amnesty that opens the door to
the prospect of the executive branch exempting anyone from any law at
any time, simply by designating them as ``low-priority'' for
enforcement.
One commenter pointed to CBP statistics showing that the number of
unaccompanied noncitizen children (UC) apprehended at the border had
increased from 15,949 in FY 2011 to 68,541 in FY 2014, which the
commenter asserted occurred when the U.S. Government, in their view,
began signaling an unwillingness to enforce immigration law against
this population. The commenter similarly stated that DACA encourages
unauthorized immigration and trafficking of children across the U.S.-
Mexico border, and that maintaining DACA and dismantling enforcement
against undocumented noncitizens resulted in record apprehensions by
CBP at the Southwest border, citing CBP statistics that Border Patrol
apprehended 1,659,206 noncitizens who crossed the Southwest border
without authorization in FY 2021. The commenter suggested that the
humanitarian crisis on the border continues threaten national security,
public health, wage levels, and employment security, and poses
unsustainable strains to DHS, DOJ, and HHS resources. This commenter
and others said that continuing the DACA policy sends the message that
unauthorized entry into the United States will be rewarded, and periods
of unlawful presence will be mooted by executive action. From their
perspective, promulgating a DACA regulation would only perpetuate a
widespread belief that immigration laws will not be enforced, therefore
incentivizing unlawful entry and unlawful presence by raising the hopes
of undocumented noncitizens of attaining DACA or an equivalent status
in the future. This, commenters asserted, will exacerbate the situation
at the border. One of the commenters similarly stated that continuing
DACA would give other undocumented noncitizens reason to risk their
lives and the lives of their children by making the journey to the
United States.
Other commenters urged that no action should permit undocumented
immigrants to participate in, share, or otherwise obtain status and
benefits without first becoming a U.S. citizen, and that no ``lawful
status'' should be granted to those entering the country unlawfully.
Some commenters also raised concerns about open borders, stating that
DACA is not in the interest of the United States, and that the United
States must protect its sovereignty and rule of law. Other commenters
expressed concern about the migration of DACA recipients' relatives to
the United States and said that such migration should be restricted.
Another commenter stated that DHS should supply additional evidence
for its claim that DACA has no substantial effect on lawful or unlawful
immigration to address the concerns of the Southern District of Texas,
including: (1) the effects of DACA on legal and illegal immigration;
(2) the secondary costs of DACA associated with any alleged increase in
illegal immigration; and (3) the effect of illegal immigration on human
trafficking activities. The commenter cited a 2021 Pew Research Center
study showing that the number of unauthorized noncitizens in the United
States steadily declined from 2007 to 2017.\105\ The commenter further
pointed to 2014 and 2017 studies showing that recent increases in
children crossing the border are driven by migration increases across
all age groups from Guatemala, Honduras, and El Salvador, which have
experienced higher rates of violence and economic instability.\106\ The
commenter suggested DHS add a more detailed discussion of global
immigration trends, which bolsters DHS's claim that DACA does not have
a significant impact on immigration rates.
---------------------------------------------------------------------------

\105\ Mark Hugo Lopez, et al., Key Facts About the Changing U.S.
Unauthorized Immigrant Population, Pew Research Center (Apr. 13,
2021), https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population.
\106\ See Tom K. Wong, Statistical Analysis Shows that Violence,
Not Deferred Action, Is Behind the Surge of Unaccompanied Children
Crossing the Border, Center for American Progress (July 8, 2014),
https://www.americanprogress.org/article/statistical-analysis-shows-that-violence-not-deferred-action-is-behind-the-surge-of-unaccompanied-children-crossing-the-border (hereinafter Wong
(2014)); see also David J. Bier, DACA Definitely Did Not Cause the
Child Migrant Crisis, Cato Institute (Jan. 9, 2017), https://www.cato.org/blog/daca-definitely-did-not-cause-child-migrant-crisis.
---------------------------------------------------------------------------

Response: DHS acknowledges these commenters' concerns and agrees
that

[[Page 53177]]

the United States is a sovereign nation committed to the rule of law.
Maintaining an orderly, secure, and well-managed border, reducing
irregular migration, and combatting human trafficking are priorities
for DHS and for the Administration.\107\ DHS disagrees, however, with
the suggestion that this rule creates a pull factor for additional
irregular immigration. This rule reflects DHS's continued belief,
supported by available data, that a continuation of the DACA policy
does not have a substantial effect on volumes of lawful or unlawful
immigration into the United States. The final rule codifies without
material change the threshold criteria that have been in place for a
decade, further reinforcing DHS's clear policy and messaging since 2012
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.
---------------------------------------------------------------------------

\107\ See generally DHS, 2022 Priorities, https://www.dhs.gov/2022-priorities (last updated Mar. 17, 2022).
---------------------------------------------------------------------------

Even as it relates to the DACA policy under the Napolitano
Memorandum, DHS respectfully disagrees with commenters'
characterization of the policy's effects. In the proposed rule, DHS
wrote that it does not ``perceive DACA as having a substantial effect
on volumes of lawful and unlawful immigration into the United States,''
and DHS is not aware of any evidence that, and does not believe that,
DACA ``has acted 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).'' \108\ Although commenters
offered data on overall levels of irregular migration as well as
irregular migration by noncitizen minors, these data do not point to
DACA as a substantial causal factor in driving such migration or, as
some commenters asserted, trafficking of children across the southwest
border.
---------------------------------------------------------------------------

\108\ 81 FR 53803 (quoting Amuedo[hyphen]Dorantes and Puttitanun
(2016), at 112 (``DACA does not appear to have a significant impact
on the observed increase in unaccompanied alien children in 2012 and
2013.'')).
---------------------------------------------------------------------------

DHS acknowledges commenters' statements that the 2012-2014 increase
in the number of unaccompanied children apprehended at the border began
in the months preceding DACA's announcement in June 2012 (and peaked in
that fiscal year in March),\109\ and that overall border apprehensions
actually decreased in the months directly following DACA's
announcement.\110\ But DHS is also aware of seasonal patterns in
migration and other trends suggesting increasing levels of overall
migration by children and family units during parts of this time
period. DHS believes it would be unreasonable, on the basis of this
data alone, to draw or completely disavow a direct causal line between
apprehensions and a single policy. Such an approach would be
inconsistent with available studies, which indicate that increases in
migration of noncitizen children correlate closely with increased
levels of violence in their countries of nationality. In short, it is
likely that broader sociocultural factors drive youth migration much
more than migrants' perception of receiving favorable immigration
treatment in the United States.\111\
---------------------------------------------------------------------------

\109\ U.S. Border Patrol, Total Unaccompanied Alien Children (0-
17 Years Old) Apprehensions By Month--FY 2010-FY 2014 (Jan. 2020),
https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Total%20Monthly%20UAC%20Apprehensions%20by%20Sector%20%28FY%202010%20-%20FY%202019%29_0.pdf.
\110\ U.S. Border Patrol, Total Illegal Alien Apprehensions By
Month--FY 2000-FY 2019 (Jan. 2020), https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Monthly%20Apprehensions%20%28FY%202000%20-%20FY%202019%29_1.pdf.
\111\ Wong (2014); see also Amelia Cheatham, Central America's
Turbulent Northern Triangle, Council on Foreign Relations (July 1,
2021), https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle.
---------------------------------------------------------------------------

As DHS noted in the NPRM, Amuedo[hyphen]Dorantes and Puttitanun
(2016) investigated whether the DACA policy had an effect on the rate
of irregular migration by noncitizen minors using data from 2007-2013.
Their approaches employed multiple models to examine whether the DACA
policy had any effect on border apprehensions of unaccompanied minors.
These models accounted for additional factors beyond the DACA policy,
such as enactment of TVPRA 2008, economic and social conditions in the
United States and originating countries, and border conditions. The
authors found no evidence of causality between the DACA policy and the
number of border apprehensions of unaccompanied minors, and they
identified stronger associations between other factors (namely, the
economic and social conditions in the originating country and the
enactment of TVPRA 2008) and apprehensions of unaccompanied minors at
the U.S.-Mexico border. This finding suggests that even in the
immediate aftermath of the initial DACA policy, migration decisions
were the product of a range of factors, but not primarily a consequence
of the DACA policy.\112\
---------------------------------------------------------------------------

\112\ There are reports and surveys that investigate some of
these factors. See, e.g., Ariel G. Ruiz Soto, et al., Charting a New
Regional Course of Action: The Complex Motivations and Costs of
Central American Migration, Migration Policy Institute (Nov. 2021),
https://www.migrationpolicy.org/research/motivations-costs-central-american-migration (hereinafter Ruiz Soto (2021)).
---------------------------------------------------------------------------

Additionally, the overall FY 2021 apprehensions by CBP at the
southern border cited by a commenter represent total encounters, not
the number of unique individuals apprehended. Although the total number
of unique encounters did increase to record levels, DHS notes that a
portion of the increased encounters cited by the commenter is
attributable to noncitizens making multiple attempts to enter the
United States during the period in which the Centers for Disease
Control and Prevention (CDC) has exercised its Title 42 authority to
prohibit the introduction of certain noncitizens into the United
States. In FY 2019, prior to implementation of the CDC's Orders under
42 U.S.C. 265, 268 and 42 CFR 71.40, the rate of noncitizens
encountered by CBP who attempted to enter the United States more than
once in the same fiscal year was 7 percent. In FY2020, the recidivism
rate rose significantly to 26 percent, and in FY 2021 further increased
to 27 percent.\113\
---------------------------------------------------------------------------

\113\ CBP, CBP Enforcement Statistics Fiscal Year 2022: U.S.
Border Patrol Recidivism Rates, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last modified June 15, 2022).
---------------------------------------------------------------------------

As discussed above, there are many reasons why noncitizens decide
to emigrate from their countries, with some reports claiming economic
and social issues as primary reasons.\114\ Still, as noted by another
commenter, global migration trends are complex and multifaceted. The
International Organization for Migration (IOM) found in its World
Migration Report 2022 that recent years saw major migration and
displacement events that caused great hardship, trauma, and loss of
life. The IOM notes that the scale of international migration globally
has increased, although at a reduced rate due to COVID-19. Long-term
data on international migration, the IOM report states, demonstrate
that migration is not uniform across the world, but is shaped by
economic, geographic, demographic and other factors, resulting in
distinct migration patterns.\115\
---------------------------------------------------------------------------

\114\ See, e.g., Ruiz Soto (2021).
\115\ Marie McAuliffe and Anna Triandafyllidou, Report Overview:
Technological, Geopolitical and Environmental Transformations
Shaping Our Migration and Mobility Futures, in World Migration
Report 2022 (2021), IOM, Geneva.
---------------------------------------------------------------------------

Beyond the complex factors underpinning migration patterns, the

[[Page 53178]]

core guidelines of the DACA policy itself--codified in this rule--
refute the idea that DACA serves as a significant material ``pull
factor'' for migration, as DHS has clearly messaged from the beginning
of the DACA policy that only individuals continuously residing in the
United States since June 15, 2007, can be considered for deferred
action under DACA. That DHS declines, after careful consideration, to
expand this or other criteria to permit other populations to request
DACA further rebuts the notion that the Department is sending a message
incentivizing unlawfully present noncitizens to remain in the United
States or prospective migrants to enter without authorization in hopes
of being granted lawful status. DHS further reiterates that DACA
recipients are considered lawfully present under prior guidance, and
now this rule, only for very limited purposes as described in this
preamble and at sections 236.21(c)(3) and (4), and that the DACA policy
does not confer ``lawful status'' to recipients.
Nevertheless, DHS acknowledges that, as with any discourse on
immigration policy or legislation, some individual noncitizens might
misinterpret the policy's intent and applicability and hope that they
might benefit from the policy. DHS, however, is unaware of a
substantial body of evidence to support such a theory, and in any event
does not think it necessary or appropriate to terminate the DACA policy
to address such concerns, in light of DHS's interests in setting
appropriate enforcement priorities, as well as the significant reliance
interests at play.
With respect to the suggestion that the DACA policy promotes
``chain migration,'' DHS understands the commenter to be referring to
family-sponsored immigration, one of the foundational principles of
U.S. immigration law,\116\ and notes that DACA recipients cannot
sponsor relatives for immigrant visas under 8 U.S.C. 1153, 1154. DHS
also refers the reader to the discussion of the DACA policy's economic
effects in the RIA below. DHS does not believe that DACA's effects are
``unaffordable'' or detrimental to U.S. citizens, and is issuing this
rule following detailed consideration of the policy's effects, as
discussed elsewhere in this preamble.
---------------------------------------------------------------------------

\116\ See 8 U.S.C. 1153 (providing allocation of immigrant visas
among family-sponsored, employment-based, and diversity categories).
---------------------------------------------------------------------------

8. Other Impacts on the Federal Government
Comment: Multiple commenters stated that the proposed rule would
increase costs and negatively impact the Federal Government, urging
that although every undocumented individual cannot be deported, it is a
waste of resources to have law enforcement release a removable
individual who has already been apprehended. A commenter also stated
that the DACA policy is less efficient, less secure, and more costly
than prosecutorial discretion decisions made by ICE and CBP, especially
given what is necessary to review and perform background checks, review
travel history, interview requestors, and conduct biometrics. The
commenter further stated that because few DACA recipients would be
subject to removal even in the absence of this rule, the number of such
individuals ICE and CBP would need to process would be minimal, and
thus the enforcement resources savings engendered by DACA would be
minimal.
Other commenters stated that it would be extremely costly, in the
billions of dollars, for the U.S. Government to remove the hundreds of
thousands of young people who qualify for DACA.
Response: DHS respectfully acknowledges the commenters' concerns
regarding the potential for increased costs and negative impacts to the
Federal Government as a result of this rule. DHS acknowledges that, by
the very nature of identifying a segment of the population that is low
priority for enforcement, most noncitizens who meet the DACA threshold
criteria would continue to be a low priority for enforcement even in
the absence of the DACA policy. In the RIA, DHS addresses the potential
effects of the policy on the Federal Government, including cost savings
resulting from the DACA policy that are not easily quantified or
monetized; tax transfers; and other effects. However, the DACA policy
simplifies many encounters between DHS and certain noncitizens,
reducing the burden upon DHS of vetting, tracking, and potentially
removing DACA recipients.
Indeed, the cost of apprehension is only one part of the process to
remove a noncitizen; the removal process includes other significant
costs to the Federal Government, including the costs of removal
proceedings before EOIR, detention, potential for related federal
litigation, and transportation. The DACA policy allows DHS, in line
with its particular expertise, to proactively identify noncitizens who
may be a low priority for removal should ICE or CBP encounter them in
the field and once a valid DACA recipient is confirmed, ICE or CBP may
be able to make a determination without necessitating further
investigation.\117\ DHS further notes that USCIS can directly access a
noncitizen's travel history from CBP databases, and that by virtue of
the use of the Form I-821D and Form I-765, USCIS is provided with
significant information and documentation relevant to a prosecutorial
discretion determination that CBP and ICE would not have related to the
noncitizen's residency, education, work history, criminal history, and
other positive and negative discretionary factors. Most noncitizens
would not have such information or documentation in their possession
when encountered by CBP or ICE. As to the commenter's concern regarding
the costs of interviews and biometric collection, interviews are very
rarely required by USCIS, and the cost of biometrics is covered by the
Form I-821D filing fees, which conserves resources for the Department.
---------------------------------------------------------------------------

\117\ 86 FR 53752.
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Furthermore, under longstanding policy and procedure, in cases
where ICE grants deferred action, the noncitizen is eligible to
subsequently file Form I-765 to apply for work authorization. This
process requires ICE to issue a document to the noncitizen, who then
must include it in their work authorization application. USCIS
routinely must verify the information provided in these letters, which
requires time and uses USCIS and ICE personnel resources. It promotes
administrative efficiency and preserves resources and time for both
agencies to streamline the DACA-related processes within one DHS
agency. Furthermore, while USCIS recovers the costs of conducting
background checks via the DACA-related filing fees, ICE and CBP, which
are funded primarily through congressionally appropriated taxpayer
dollars, would not recover these costs from requestor fees unless they
established additional fees for that purpose.
Comment: A commenter stated that DACA is a massive new government
program that would require significant government resources to
administer that will be placed on both the executive and judicial
branches, while the Federal agencies specifically entrusted to secure
the border continue to go understaffed and under-supported.
Response: DHS respectfully disagrees with this commenter's
characterization of the DACA policy. This rule preserves and fortifies
in regulation a policy that has been in place for 10 years. The rule
does not establish a new program, nor does the policy require
administration by the judicial branch. To the extent

[[Page 53179]]

that any resource burden is placed on the judicial branch, that is the
result of outside parties who seek to challenge the DACA policy in
court and is not a burden on the judicial branch that is inherent in
the DACA policy itself.
The final rule does not introduce new criteria for consideration,
expand the population eligible for consideration, change standards of
review, provide lawful immigration status, or alter the forbearance
from removal or employment authorization structure that has been in
place for a decade. As discussed elsewhere in this rule and in the
NPRM, the DACA policy reflects the reality that DHS must exercise
discretion in immigration enforcement, and that its limited resources
are best focused on noncitizens who pose a security threat, public
safety, or border security threat to the United States or are otherwise
a high priority for enforcement. Codification of the DACA policy in
this rule does not divert needed funds from CBP or ICE, and instead
supports their enforcement work by clearly identifying a subset of the
noncitizen population already determined not to be a priority for
enforcement.
9. Criminality, National Security Issues, and Other Safety Concerns
Comment: Some commenters expressed concerns about criminal or other
negative conduct by DACA recipients, along with national security
concerns. Some of these commenters stated that DACA recipients
generally do not respect the rule of law, and that too many noncitizens
without lawful status are present in the United States and commit
crimes against citizens. Some commenters described noncitizens without
lawful status as criminals because they entered the United States
without authorization, and asserted that those individuals would not
become law-abiding citizens.
Some commenters characterized DACA recipients as ``invaders'' or
``parasites'' or used other pejorative terms, and stated that some DACA
recipients try to manipulate U.S. citizens into marriage for
immigration purposes. Other commenters stated that DACA is a threat to
the United States and its security, and that it creates avenues for
drug cartels to operate in the United States, enabling human
trafficking and drug trafficking.
In contrast, multiple commenters stated that undocumented
immigrants are less likely to be convicted of crimes (e.g., crimes
involving drugs, violence, or property) compared to U.S.-born citizens.
Another commenter stated that the proposed rule could help DHS focus
enforcement resources on noncitizens who commit crimes rather than on
DACA recipients. Further, several commenters either cited data or
expressed the notion that DACA removes barriers for immigrants to
approach law enforcement and report crime. Referencing a 2020 survey,
one commenter stated that DACA recipients would be more than 30 percent
less likely to report a crime committed against them and almost 50
percent less likely to report wage theft without the protection of
DACA.\118\
---------------------------------------------------------------------------

\118\ See Wong (2020).
---------------------------------------------------------------------------

Response: DHS acknowledges the commenters' concerns about national
security, public safety, and crime in the United States, and as a
general matter, shares those concerns. At the same time, DHS is not
aware of any data suggesting that the DACA policy contributes to those
challenges, or that DACA recipients engage in criminal activity, commit
fraud, or pose national security concerns to any greater degree than
the general population. As an initial matter, data suggest that DACA
recipients are arrested at far lower levels than the general U.S. adult
population. As of February 1, 2018, 7.76 percent of approved DACA
requestors had an arrest.\119\ In contrast, a 2018 DOJ survey of State
records found that 49 States, the District of Columbia, and Guam
reported the total number of U.S. adults with criminal history records
indicating arrests and subsequent dispositions to be more than 112
million, amounting to as much as 40 percent of the U.S. adult
population.\120\ In addition, DHS notes that an arrest indicates the
individual was arrested or apprehended only; it does not mean the
individual was convicted of a crime. Further, individuals may not have
been charged with a crime resulting from the arrest, may have had their
charges reduced or dismissed entirely, or may have been acquitted of
any charges.\121\
---------------------------------------------------------------------------

\119\ USCIS, DACA Requestors with an IDENT Response (June 5,
2018), https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF (arrests include apprehensions for immigration-
related civil violations).
\120\ DOJ, Office of Justice Programs, Bureau of Justice
Statistics, Survey of State Criminal History Information Systems,
2018 (Nov. 5, 2020), https://www.ojp.gov/pdffiles1/bjs/grants/255651.pdf. (``Readers should note that an individual offender may
have records in more than one state and that records of deceased
persons may be included in the counts provided by states. This means
the number of living persons in the United States with criminal
history records is less than the total number of subjects in state
criminal history files.'').
\121\ USCIS, DACA Requestors with an IDENT Response (June 5,
2018), https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF.
---------------------------------------------------------------------------

As discussed in further detail in Section II.C.4.b.6, determining
whether someone poses a threat to national security or public safety is
at the heart of DHS's mission, and Congress has directed the Secretary
to prioritize national security, public safety, and border security.
Consistent with this mission, the rule at new 8 CFR 236.22(a)(6)
disqualifies from consideration for DACA individuals who have been
convicted of any felony; three or more misdemeanors not occurring on
the same date and not arising out of the same act, omission, or scheme
of misconduct; or who otherwise pose a threat to national security or
public safety. In addition, the rule disqualifies from consideration
for DACA any individual who is convicted of any misdemeanor, as defined
by Federal law, 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 one of these offenses, is one for which the individual was
sentenced to time in custody of more than 90 days. And even if an
individual requestor's background check shows a criminal history that
does not meet the above critieria, DHS may still decide not to grant
the DACA request as a matter of discretion. These criminal criteria are
also grounds for terminating DACA, as discussed in Section II.C.5.f
below, and because DHS conducts recurrent vetting on DACA recipients,
the Department can take action to terminate DACA as it becomes aware of
any evidence of such criminal criteria in a particular case.
DHS also does not believe that it is accurate or helpful to
characterize DACA recipients or potential DACA requestors--who entered
the United States as children and have resided in this country for over
a decade--as ``invaders'' or to use other pejorative or inflammatory
terms to refer to DACA recipients, noncitizens, or any other group of
people who are, on the whole, peaceful and hardworking. With respect to
all comments submitted, DHS has focused on the merits of commenters'
inputs, rather than such characterizations.
With respect to the comment regarding DACA recipients and marriage,
DHS notes that under 8 U.S.C. 1325(c), any individual who knowingly
enters into a marriage for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than 5 years, or
fined not more than $250,000, or both. Activity falling under 8 U.S.C.
1325(c) is a felony falling within the criminal

[[Page 53180]]

disqualifications described above. To whatever extent such activity
occurs among DACA recipients, DHS does not expect that a rescission of
the DACA policy would reduce the incidence of such activity.
DHS does not believe that DACA creates avenues for drug cartels to
operate in the United States or enables human trafficking and drug
trafficking. Conviction for such offenses would result in termination
of DACA or denial of DACA renewal, and as discussed above, DACA
recipients receive work authorization that enables them to participate
in the legitimate economy, an option that would not be available to
them absent DACA. Human trafficking and drug trafficking are serious
crimes and top priorities for DHS.\122\ Again, DHS does not believe
that terminating DACA would meaningfully reduce the incidence of such
crimes or that DACA prevents DHS or other law enforcement officials
from fully investigating or prosecuting such crimes or removing
noncitizens involved in such activity.
---------------------------------------------------------------------------

\122\ See DHS, DHS Efforts to Combat Human Trafficking (Jan. 25,
2022), https://www.dhs.gov/sites/default/files/2022-01/DHS%20Efforts%20to%20Combat%20Human%20Trafficking.pdf; The While
House, Executive Office of the President, Office of National Drug
Control Policy, National Drug Control Strategy (Apr. 18, 2022),
https://www.whitehouse.gov/wp-content/uploads/2022/04/National-Drug-Control-2022Strategy.pdf.
---------------------------------------------------------------------------

With regard to concerns about public safety more broadly, as one
commenter noted, the DACA policy may increase recipients' willingness
to report crimes by deferring the possibility of immediate removal and
thereby ameliorating the risk that approaching law enforcement would
expose the recipient to an immigration enforcement action. DHS also
agrees with the commenter that this rule will enable the Department to
focus its enforcement resources on those that pose national security or
public safety concerns. After careful consideration, DHS thus
respectfully disagrees with commenters concerned that the DACA policy
promotes criminal activity or otherwise undermines national security or
public safety.
10. Creation of a ``Permanent'' Class of Individuals Without Legal
Status
Comment: A few commenters generally opposed the proposed rule on
the ground that it would create a ``permanent'' class of individuals
without legal immigration status. One commenter stated that DACA
recipients can renew their deferred action and employment authorization
indefinitely, resulting in ``de facto LPR [lawful permanent resident
status,'' which the commenter stated is distinct from other immigration
benefits and visa categories created by Congress that are limited in
their ability to renew.
Another commenter stated that it is wrong to allow people to come
to the United States unlawfully and stay in the country long enough
until the Government decides they can become citizens. The commenter
stated that letting people enter and remain in the United States
unlawfully ``does not instill a sense of patriotism for the
recipient.'' Another commenter stated that the DACA policy lacked some
of the benefits of naturalization, because naturalization applicants
learn about the United States. The commenter stated that skipping this
step is an affront to naturalized citizens and that the United States
should end DACA and encourage prospective residents to naturalize
legally.
Another commenter said that DACA is a ``made-up policy'' that holds
its recipients in a purgatory-like state waiting for the Government to
ultimately address the issue of lawful status, while another commenter
added that DACA recipients live in a state that experts call ``liminal
legality,'' which has health implications for many undocumented
individuals.
Response: DHS agrees that the rule does not extend lawful
immigration status to DACA recipients and does not set a cap on the
number of times a DACA recipient may submit a renewal request, but
notes that even in the absence of DACA, DACA recipients generally would
be unlikely to depart the United States. DHS disagrees, however, that
the rule allows people to enter unlawfully and remain until they can
become citizens. As discussed in the NPRM and in this rule, this rule
applies to a specific class of individuals who entered the United
States as children over a decade and a half ago, and who have made
significant investments and contributions to their communities.
Although the DACA criteria were developed administratively, the program
is supported by longstanding administrative practice and precedent. DHS
and the former INS have a long history of issuing policies under which
groups of individuals without lawful status who are low enforcement
priorities may receive a discretionary, temporary, and nonguaranteed
reprieve from removal.\123\ Deferred action under the DACA policy is a
form of prosecutorial discretion well within the Executive's authority
to efficiently allocate limited enforcement resources.\124\ In
deferring removal under this rule, DHS is not creating a pathway to
U.S. citizenship for DACA recipients. DHS also disagrees that the rule
creates a ``de facto'' lawful permanent residence status. Unlike lawful
permanent residence, which can only be rescinded or result in
removability of the beneficiary in narrowly prescribed
circumstances,\125\ a grant of deferred action under DACA is by its
nature temporary, and it can be terminated at any time.
---------------------------------------------------------------------------

\123\ 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 (hereinafter AIC Report on
Executive Grants of Temporary Immigration Relief) (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).
\124\ 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).
\125\ See 8 U.S.C. 1256; 8 U.S.C. 1227.
---------------------------------------------------------------------------

As to the commenters' concerns that the DACA policy does not
engender a sense of patriotism for recipients or that because there is
no pathway to naturalization, DACA recipients do not benefit from
learning about the United States as naturalization applicants do, DHS
notes that many commenters wrote of DACA recipients' ``dreams and
aspirations to help America,'' sharing that they are ``grateful for
this country'' and want to work hard to take advantage of the
opportunities they have in the United States. And while the DACA policy
has no U.S. history knowledge requirement, DHS notes that virtually all
recipients have been enrolled in or completed some form of secondary
education in the United States consistent with the education criteria
for DACA. Several DACA recipients stated in their comments that through
their studies, they knew more about American history than the history
of their countries of origin. As to the commenter's suggestion that DHS
terminate the DACA policy and encourage prospective residents to
naturalize legally, DHS notes that those eligible for DACA generally do
not have a pathway to lawful permanent status or naturalization, and as
discussed in Section II.A.11 below, establishing such pathways requires
Congressional action. However, DHS also notes, that nothing precludes a
DACA recipient from

[[Page 53181]]

becoming a citizen through the existing naturalization provisions of
the INA if they meet the preexisting eligibility requirements.\126\
---------------------------------------------------------------------------

\126\ 8 U.S.C. 1421, et seq.
---------------------------------------------------------------------------

DHS also acknowledges commenters' concerns that the legal
uncertainty of the DACA policy causes stress and negative health
outcomes for some DACA requestors. DHS reiterates that ameliorating
legal uncertainty for the DACA population, and preserving and
fortifying DACA as directed by the Biden Memorandum, are among the
purposes for promulgating this rule. DHS therefore declines to make any
changes in response to these comments.
11. Pathway to Lawful Status or Citizenship
Comment: Many commenters urged DHS to provide DACA recipients a
pathway to citizenship, such as by providing eligibility for lawful
permanent residency. Some commenters urged DHS to provide protections,
including a pathway to citizenship, for all persons who would have been
eligible for relief under prior versions of the DREAM Act, including
``Documented Dreamers.'' \127\
---------------------------------------------------------------------------

\127\ ``Documented Dreamer'' is a term used to identify children
of long-term visa holders who have grown up in the United States
with derivative nonimmigrant visa status, and who have aged out or
are likely to age out of this status by virtue of turning 21 without
a pathway to lawful immigrant status. See Testimony of Pareen
Mhatre, Student Member of Improve the Dream, before the House
Judiciary Committee Subcommittee on Immigration and Citizenship
(Apr. 28, 2021), https://docs.house.gov/meetings/JU/JU01/20210428/112515/HHRG-117-JU01-Wstate-MhatreP-20210428.pdf.
---------------------------------------------------------------------------

Some commenters acknowledged and appreciated the proposed rule's
discussion of the term of art ``lawfully present,'' and their joint
submission proposed, without substantial additional explanation, that
DHS interpret its ``lawful presence'' authority to allow a path to
citizenship, through naturalization, to DACA recipients. Others
suggested that DHS provide Temporary Protected Status (TPS), or some
other form of legal status, to DACA recipients.
A commenter expressed concern that they may not be eligible for
future promotions due to restrictions on work authorization associated
with DACA, such as the program's prohibition on employment sponsorship.
Another commenter likewise remarked that many DACA recipients do not
have a path to employment-based permanent residence and, therefore, are
barred from adjusting status through filing Form I-601 waiver
applications. The commenter stated that continuing to extend DACA in
its current form or effectively making it a fixture of U.S. immigration
law with only minor changes would be a ``cruel joke'' for the numerous
individuals who are ineligible for both DACA and family-based
immigration. The commenter urged the inclusion of provisions to address
the gap in the treatment of DACA recipients to permit them to pursue
employment-based immigration options. The commenter stated the
provisions should include, at a minimum, the opportunity for DACA
recipients to file Form I-601 waiver or Form or I-601A provisional
waiver applications so that they can proceed with consular processing
for approved Form I-140 petitions. Commenters stated that such
solutions are preferable in light of the uncertainty, fear, and anxiety
surrounding the DACA request process, legal challenges to the policy,
and the complexity of the U.S. immigration system.
Some commenters said that providing a pathway to permanent
residence or citizenship would provide much-needed stability and lift
the psychological and financial burden of biennial renewals. Some of
these commenters cited personal examples highlighting the negative
effects of uncertainty on existing or hopeful DACA recipients and their
families, including financial and psychological hardship. Expressing
concern that DACA recipients' livelihood could be destroyed if they
lost protections, a commenter remarked that citizenship would allow
DACA recipients to continue to reside in the United States without
assuming any further fees or expenses, reasoning that staying should
cost recipients nothing after they have established their residence and
livelihood here.
Some commenters said that DACA recipients experience unique
disadvantages compared to other immigrants and those with a pathway to
citizenship in terms of finding adequate employment or obtaining
Federal employment, receiving Federal financial aid or grants,
obtaining a driver's license, joining the military, traveling overseas,
qualifying for State and Federal benefits and programs such as Premium
Tax Credits and Medicaid, or obtaining legal status through alternative
pathways such as employee sponsorship. Referencing various examples
above, several commenters suggested that DACA recipients are
``citizens'' or ``Americans'' in various contexts, only lacking this
status by law. Other commenters similarly said that children who grew
up in the United States inherently belong and deserve the same rights
as citizens who consider this country their home.
Some commenters stated that a pathway to citizenship or permanent
residency would reinforce the humanitarian and legal principles
underlying DACA, the proposed rule, U.S. law, or U.S. values. One
commenter said that creating a pathway to citizenship would be the
right thing to do for human rights and society. The commenter further
reasoned that citizenship would recognize that the United States has
only benefitted from DACA recipients' contributions.
A couple of commenters stated that providing a path to citizenship
would not only reduce uncertainty but would also ease the burden of the
administrative and judicial review processes for DACA cases, as well as
the costs of deportation. A couple of commenters also stated that, as
individuals who are compelled to maintain a ``spotless record'' to keep
their status, DACA recipients have earned their citizenship.
In the absence of a pathway to citizenship, some commenters
suggested that, at a minimum, the rule could provide assurance to DACA
recipients that they are safe and will not be deported without just
cause. Similarly, several commenters stated the need for clear
messaging and guidelines around DACA protections.
Response: Comments suggesting that DHS should provide a path to
citizenship or similar relief are outside the scope of the rulemaking.
DHS nonetheless agrees with commenters that DACA recipients make
substantial contributions to their communities and the U.S. economy.
DHS also acknowledges commenters' concerns about legal and political
uncertainty around the DACA policy. As discussed elsewhere in this rule
and in the NPRM, DHS emphasizes that while this rule represents the
agency's best efforts to preserve and fortify DACA, a legislative
solution would offer unique benefits for the DACA population, as
congressional action would be needed to extend a pathway to lawful
permanent residence or citizenship for DACA recipients. As it relates
to this rule, DHS emphasizes that the benefits of the rule for DACA
recipients are multifold. At its core, the DACA policy represents an
exercise of enforcement discretion, under which DHS indicates its
intention to forbear from enforcing the immigration laws against a DACA
recipient, and which the courts have generally not questioned. Other
features of the policy, including eligibility for employment
authorization, lawful presence as

[[Page 53182]]

defined in 8 CFR 1.3, and non-accrual of unlawful presence for the
purposes of INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), have been
the focus of litigation, but these features can be traced directly to
DHS's statutory authority over these topics, are consistent with
longstanding regulations and policy, and are, in DHS's view, broadly
beneficial to DACA recipients and their families, schools, communities,
and employers.
Although DHS does not have legal authority to amend the rule to
provide a direct procedure for a DACA recipient to attain citizenship,
as recommended by some commenters, DHS notes that nothing precludes
DACA recipients from becoming LPRs or applying for naturalization
through the existing provisions of the INA if they meet the preexisting
eligibility requirements.\128\ For example, DACA recipients who qualify
to become LPRs through existing family or employment-based avenues may
be eligible to apply for naturalization after 3 or 5 years, depending
on their category of permanent resident status.\129\ Similarly, a DACA
recipient who is a member of the military or spouse of such a military
member may ultimately meet the requirements for military
naturalization.\130\
---------------------------------------------------------------------------

\128\ 8 U.S.C. 1421 et seq.
\129\ See 8 U.S.C. 1427(a).
\130\ See 8 U.S.C. 1439 et seq.
---------------------------------------------------------------------------

DHS also acknowledges the commenter's concerns about the
professional implications that lack of a permanent legal immigration
status may have on DACA recipients. DHS recognizes that some DACA
recipients may not meet the eligibility requirements for certain
employment-based nonimmigrant and immigrant visa categories. DHS notes,
however, that there is nothing in the DACA policy or this rule that
limits or prohibits a recipient from attaining such employment-based
status if a petitioning employer and the individual are able to meet
the requirements of the particular category. Certain restrictions that
exist on employment-based nonimmigrant and immigrant classifications,
moreover, as well as the waivable grounds of inadmissibility, are
statutory, and DHS lacks authority to change them through this
rulemaking. Solutions to statutory requirements must originate with
Congress in the form of legislation. And because DHS did not propose
modifications to regulatory requirements for immigrant and nonimmigrant
work-based avenues to lawful immigration status, modifying those
requirements in this final rule is outside the scope of this rule.
DHS appreciates the commenter's concern over protecting DACA
recipients regardless of whether Congress passes an adjacent
legislative solution. DHS agrees with commenters, that regardless of
whether Congress acts to extend a pathway to lawful permanent residence
or citizenship for the DACA-eligible population, there is ample
justification to consider DACA recipients to generally be of a low
enforcement priority.
Comment: A commenter suggested that DHS cooperate with the U.S.
Department of Education to create a process by which school-age DACA
recipients could take citizenship tests upon graduation of high school
to help them attain legal citizenship. Another commenter, stating that
DHS and the Federal Government need to end the uncertainty for DACA
recipients by creating a path to lawful permanent residency and
citizenship, suggested that the agency may need to enforce community
service requirements to offset the fact that these individuals came to
the United States without authorization.
Response: As discussed above, DACA does not provide a pathway to
citizenship, and DHS cannot create such a pathway through this
rulemaking. Congressional action is required to extend a pathway to
lawful permanent residence or citizenship for DACA recipients.
Additionally, while DHS appreciates the commenters' suggestions,
creating such processes would be within the purview of entities
external to the Department and outside of the scope of this rulemaking.
DHS is unable to make any changes in response to this comment.
12. Other General Reactions and Suggestions
Strengthening the Proposed Rule or DACA
Comment: Many commenters commended USCIS for preserving and
fortifying DACA while adding that the proposed rule should go further
to benefit and provide assurance to recipients. Commenters reasoned
that, by maintaining the DACA framework, the proposed rule would
perpetuate a ``band-aid solution,'' reinforce the status quo, or fail
to address the root problems recipients face in the absence of
permanent protections against deportation or the loss of work
authorization. Other commenters recommended that the rule expand
eligibility for DACA by allowing those who entered the United States
more recently to apply, or by revising or removing the criminality
component of the adjudication.
Another commenter expressed strong opposition to the proposed rule,
arguing that many of the proposed provisions conflict with DHS's stated
intent of preserving and strengthening DACA. According to the
commenter, the proposed rule would not do enough to preserve access to
DACA for its intended beneficiaries, expand access to individuals that
fall outside the Napolitano Memorandum's criteria, protect victims of
domestic and sexual violence, ensure fair and consistent application of
DACA, or protect DACA recipients and requestors from deportation.
One commenter stated that the 2012 eligibility requirements
reiterated in the NPRM are overly narrow and now outdated. Furthermore,
the commenter stated, unlike many other issues it canvasses, the
proposed rule fails to suggest expanded alternatives to the core
feature of DACA: its coverage. As a result, according to the commenter,
this rule fails to provide ambitious protection for immigrant youth.
Many commenters said that, while the proposed rule, or DACA
generally, would not provide a permanent solution for recipients, the
policies represent a necessary step in the absence of congressional
action or a better alternative. One commenter stated that DACA serves
both national and international interests amid flawed legal standards,
including for asylum, and policy gridlock. They stated that DACA, while
imperfect, should be preserved and expanded. Some commenters expressed
concern with legal or political uncertainty around DACA and the
potential loss of protections for recipients. One commenter said that
DACA is premised on Executive discretionary power and, therefore, is
ill-equipped to endure changes in administrations. Other commenters
provided examples highlighting the need to do more to address
uncertainty and legal limbo among DACA recipients.
Describing the existing difficulties children and families face in
the U.S. immigration system, as well as the need for DACA protections,
commenters urged DHS to expand or improve efforts to protect, welcome,
and support DACA recipients or DACA-eligible individuals. Some
commenters alluded to a general need for a permanent solution or
relief, through DACA or otherwise, while others added that, beyond
protecting DACA, there also is a need for broad immigration reform.

[[Page 53183]]

Response: DHS appreciates commenters' support for the rule and the
agency's work to preserve and fortify DACA, and DHS agrees with those
commenters who said that codifying the DACA policy is an appropriate
step in the absence of a permanent solution. DHS also acknowledges the
commenters' concern for the well-being of noncitizen survivors of
domestic and sexual violence and individuals brought to the United
States as children in general.
DHS recognizes the rule's limited scope, but this scope is
consistent with the President's directive to focus efforts toward
preserving and fortifying DACA. A central goal of this rule is to
respect reliance interests. As discussed further in Section II.C, DHS
does not believe that it would be appropriate to expand the policy in
the final rule.
DHS also acknowledges some commenters' desire to see ambitious
protections for immigrant youth written into law. DHS agrees that the
DACA policy as codified in this rule does not address the circumstances
of all immigrant youth, is not a permanent solution for affected
persons, and does not provide lawful immigration status or a path to
citizenship.
Other Feedback and Recommendations
Comment: DHS received other general feedback and recommendations
from commenters regarding the DACA policy and DACA recipients more
generally. Some commenters requested that the agency consider allowing
DACA recipients to serve in the military. Another commenter stated that
the United States should cut military funding and use the money to
increase support for DACA recipients. Another commenter said that,
while DACA has granted certain privileges to recipients, they continue
to feel threatened by the Government while lacking access to the
democratic process. The commenter said that they would like the
privilege of voting in the only country they have known as home.
Citing personal experiences, another commenter expressed concern
that DACA recipients are unable to obtain a Commercial Driver License
(CDL) and requested that recipients be allowed to have a CDL.
Considering the national driver shortage and opportunities for business
owners, the commenter reasoned that this change would allow DACA
recipients to serve their communities.
Other commenters recommended that the agency implement more
safeguards for children coming to the United States, including through
background checks on DACA recipients' guardians or household members.
Response: DHS acknowledges these commenters' feedback but notes
that their suggestions are outside of the purview of the Department and
beyond the scope of this rulemaking. DHS, therefore, is unable to make
any changes to the final rule in response to these comments.
Comment: Another commenter said that they would support the rule if
it provided language stating that DACA would be ``a one-time thing.''
The commenter reasoned that there should not be an opportunity for
newly arrived individuals to participate in a policy created for those
``who have fought tirelessly to achieve it.''
Response: As discussed in the NPRM and in this rule, DHS is acting
consistent with the direction of the President to preserve and fortify
the DACA policy, and in light of the particular contributions and
reliance interests of DACA recipients and related parties. In
accordance with the President's instruction and in recognition of the
significant reliance interests at stake, DHS is generally retaining the
threshold criteria from the Napolitano Memorandum and longstanding
policy as proposed in the NPRM, including the requirement that DACA
requestors be physically present as of June 15, 2012, and continuously
resided in the United States since June 15, 2007.\131\ Therefore,
consideration for deferred action under DACA will not be available to
recently arrived noncitizens under this rulemaking.
---------------------------------------------------------------------------

\131\ See new 8 CFR 236.22(b)(2) and (3).
---------------------------------------------------------------------------

Comment: Some commenters stated that the proposed rule failed to
provide flexibility for the administration in terms of terminating the
DACA policy. A commenter objected that if, in the future, DHS does have
sufficient resources to remove DACA recipients, DHS could not simply
terminate this rule without notice. Another commenter described DACA as
outdated, urged it be abolished, and stated that the policy was
supposed to be temporary.
Response: DHS and the former INS have a long history of issuing
policies under which groups of individuals without lawful status may
receive a discretionary, temporary, and nonguaranteed reprieve from
removal.\132\ Deferred action under DACA is a form of prosecutorial
discretion well within the Executive's authority to efficiently
allocate limited enforcement resources.\133\ This rule codifies an
existing and appropriate use of such prosecutorial discretion to defer
removal and does not expand upon or create new mechanisms by which the
executive branch could exempt anyone from the enforcement of any law.
DHS acknowledges that this rule codifies DACA, which reduces the
agency's flexibility with regard to terminating or changing certain
aspects of the policy, but reiterates the purpose of the rule is to
preserve and fortify DACA, a policy that has been in place for 10
years.
---------------------------------------------------------------------------

\132\ See generally CRS Report on Discretionary Reprieves from
Removal. See also AIC Report on Executive Grants of Temporary
Immigration Relief; CRS Report on EVD.
\133\ 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).
---------------------------------------------------------------------------

Regarding a commenter's concern that DACA was intended to be a
temporary policy, DHS notes that the Napolitano Memorandum did not
impose temporal limits to the policy or otherwise indicate a temporary
intent. To the extent that the policy was described as a temporary
measure by President Barack Obama when he announced it in 2012, DHS
notes that President Obama also stated that, ``[i]n the absence of any
immigration action from Congress to fix our broken immigration system,
what we've tried to do is focus our immigration enforcement resources
in the right places,'' and that DACA is a measure ``that lets us focus
our resources wisely while giving a degree of relief and hope to
talented, driven, patriotic young people.'' \134\
---------------------------------------------------------------------------

\134\ White House Office of the Press Secretary, Remarks by the
President on Immigration (June 15, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration.
---------------------------------------------------------------------------

As the DACA-eligible population remains a low priority for
enforcement; in recognition of the investments that DACA recipients
have made in their families, work, schools, and communities, and vice
versa; and in light of the litigation history associated with the DACA
policy, DHS has determined it is appropriate to codify the DACA policy
in regulation. DHS agrees, however, that in general, such codification
should not be necessary for policies guiding the case-by-case exercise
of enforcement discretion. In response to a commenter's concern that
promulgation of this rule restricts the flexibility of the Department
to terminate the DACA policy, for example, if there are sufficient
enforcement resources so as to not need to exercise prosecutorial
discretion, DHS declines to make changes to the rule. In the event that
DHS receives such a sustained infusion of resources,

[[Page 53184]]

Congress could invalidate this rule or DHS could rescind or modify it.

B. Background, Authority, and Purpose

1. Statutory Authority
Assertions That Proposed Rule Is Unlawful
Comment: Many commenters stated, without providing an additional
substantive rationale, that the DACA policy is unlawful and illegal,
unconstitutional, or otherwise does not follow the law as enacted. Some
commenters said generally that neither DHS nor USCIS has legal
authority to issue the proposed rule. Other commenters stated the
matter is ``comprehensively'' covered by provisions of 8 U.S.C. 1325
pertaining to improper entry by a noncitizen. Other commenters said
neither of the two statutes that grant DHS authority broadly, 6 U.S.C.
202(5) and 8 U.S.C. 1103, nor any other statute grants authority for
DHS to issue the rule. Many commenters stated Congress has considered
legislation to protect a DACA-like population a number of times in the
past but declined to enact such legislation each time, even after the
issuance of the Napolitano Memorandum. Other commenters said the rule
bypasses Congress' role in the legislative process, and only Congress
has the authority to make and revise immigration law.
Similarly, one commenter wrote that Congress has not enacted
legislation to authorize DHS to propose rules to implement the DACA
policy. The commenter referenced the various authorities that DHS cited
in proposing the rule, concluding that none of them permits DHS to
propose this rule. Specifically, the commenter cited sources that in
their view establish: (1) prosecutorial discretion does not permit DHS
to implement sweeping policy changes; (2) ``longstanding'' DHS policies
do not create authority for the proposed rule; and (3) court decisions
are inapplicable or explicitly foreclose DHS's interpretation of its
authority.
The commenter went on to state that the courts, not DHS, determine
whether DHS has authority to implement DACA. The commenter wrote that
the courts have, in that respect, ``expressly concluded'' that DHS does
not have that authority. The commenter further stated that, because the
rule implements the same program that the courts reviewed, the
reasoning in those court decisions applies with equal force to the
proposed rule. The commenter characterized this rulemaking as
demonstrating DHS's opinion that certain court decisions concerning
DHS's authority do not apply to it. The commenter said DHS's policies,
even if longstanding, do not hold greater weight than legal
determinations by the judiciary, nor do they overcome the force of law
as determined by the courts.
The commenter also stated that, throughout the NPRM, DHS cites a
series of agency policies that Congress later codified, presumably to
show authority for this rulemaking. The problem with these references,
in the commenter's view, is the referenced policies are
``distinguishable and unrelated'' to the current proposed rule. The
commenter wrote that in earlier instances of deferred action, DHS
implemented a policy that was: (1) not held by a court of law to be
outside the scope of DHS's authority; and (2) not relied on as
authority for a proposed rule. The commenter said that a history of DHS
policies, even where Congress ratified those policies, is not evidence
of authority for an agency to implement the DACA rules or any rule
because historical practice is not a duly enacted statute by Congress.
The commenter also stated that DHS is not consistent in its
reliance on Congress' post-implementation treatment of DHS policy as
authority for these rules. For example, the commenter wrote that DHS
takes the position that Congress' inaction concerning the DREAM Act
should not lead to an inference concerning the Secretary's authority,
while simultaneously relying on Congress' inaction to support its
position that the Secretary has authority to confer ``lawful presence''
as part of DACA. The commenter stated that DHS's ``completely
subjective'' analysis illustrates why statutes, not Congress' action or
inaction after a policy is implemented, must authorize any agency
rulemaking endeavor.
Another commenter likewise wrote that maintaining DACA through
rulemaking is both unlawful and bad immigration policy. The commenter
stated that Congress has not authorized DACA, and DACA therefore is
outside DHS's rulemaking authority. Citing the district court's 2021
decision in Texas, the commenter wrote that DHS bases the proposed rule
on an impermissible interpretation of the INA. The commenter stated
that DACA directly conflicts with Congress' legislative scheme to
regulate the employment of noncitizens, adjustment of status of
noncitizens who entered the United States without inspection, removal
of certain noncitizens from the United States, and reentry into the
United States by noncitizens who have accrued unlawful presence.
The commenter wrote that DACA is more than an exercise of
prosecutorial discretion and instead goes further to ignore statutorily
mandated removal proceedings and unlawfully provide immigration
benefits to an ineligible population. The commenter also stated that
Congress has spoken on DACA's legality by consistently and expressly
rejecting legislation that would substantively enact the program or
otherwise legalize DACA's intended beneficiaries. The commenter wrote
that Congress has not implicitly ratified DACA, either. Citing case
law, the commenter stated ratification requires ``a systematic,
unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned.'' The commenter wrote DACA
``falls short'' of satisfying this standard ``because prior instances
of Executive misconduct cannot be regarded as even a precedent, much
less an authority for the present misconduct.'' The commenter stated
that it disagrees with DHS's position that prior non-enforcement
policies justify the proposed rule. And the commenter further said
implementation of DACA would violate the Take Care Clause of the U.S.
Constitution because it ``dispens[es]'' with certain statutes.
Multiple commenters stated that the rule cannot be issued as an
executive decision. These commenters said DACA is an example of
executive disregard of the Constitution and current law, and no
administration has the authority to decide which laws agencies get to
ignore. Many commenters stated the rule is in direct violation of U.S.
immigration law, which requires that people living in this country
illegally be apprehended and returned to their country. Some commenters
also said there is an established procedure for U.S. citizenship, and
DACA recipients should follow this path to legal citizenship the same
as any other immigrant.
One commenter stated that, while previous administrations have
granted deferred action to limited groups of immigrants, DHS lacks
authority to provide ``unconditional and indefinite'' relief and
benefits to a large group (``more than half million'') of noncitizens
without lawful immigration status. Another commenter similarly remarked
that the main flaw in DHS pointing to prior deferred action programs as
justification for this rule is that ``none of them has the broad scope
and indefinite timeframe of the [DACA] program.'' The commenter stated
that ``a litmus test is whether the department created a program that
is narrowly scoped, and has a time restriction, either

[[Page 53185]]

in terms of max number of renewals, or restricted to a bridge-gap
measure before the applicant's next status take[s] effect.'' Providing
examples, the commenter concluded that, while ``all previous deferred
actions'' met these criteria, DACA does not. Another commenter asserted
that the rule would grant lawful presence and work authorization to
potentially hundreds of thousands of noncitizens by 2031 ``for whom
Congress has made no provision and has consistently refused to make
such a provision,'' and cited King v. Burwell, 576 U.S. 473, 474 (2015)
for the proposition that ``had Congress wished to assign [a question of
`deep economic and political significance'] to an agency, it surely
would have done so expressly.''
Multiple commenters stated that the rule comes on the heels of the
Texas ruling, which struck down the DACA policy as unlawful. One
commenter said that DHS mischaracterizes the district court's ruling
throughout the NPRM in an apparent attempt to justify the NPRM as a
legitimate rulemaking endeavor, writing that the finding that the
Napolitano Memorandum violated the Administrative Procedure Act (APA)
was only part of the district court's decision, and the district court
also determined DHS could not cure DACA's underlying legal deficiencies
even by using notice-and-comment rulemaking. The commenter stated the
rule impermissibly substitutes DHS's own opinion in place of a legally
binding court order. The commenter further said the rule demonstrates
DHS's ``blatant disregard'' for the district court's ruling, exposing
DHS to potential liability for contempt of court and setting a
``dangerous precedent'' with respect to our government's system of
checks and balances. The commenter stated that regardless of whether
DHS ``agrees'' with the district court's ruling, it is nonetheless
bound by the ruling unless an appellate court overturns it. The
commenter also said pursuing this rulemaking while litigation continues
reflects a gross mismanagement of resources at DHS and USCIS. The
commenter concluded by addressing the statutory authority of USCIS
officers, stating DHS ``glosses over'' the distinct authorities
Congress delegated to each of the three immigration components within
DHS. Writing that USCIS is not an enforcement agency and, therefore,
lacks the ability to grant deferred action to any noncitizen, the
commenter stated the precise wording of the delegation in the Homeland
Security Act (HSA) irrefutably demonstrates that Congress intentionally
gave USCIS authority only to adjudicate immigration benefit requests,
not to take (or decline to take) enforcement actions against
nonimmigrants. Thus, the commenter said, even if DHS's pursuit of
rulemaking while simultaneously appealing the district court's ruling
in Texas were proper, USCIS lacks the authority to administer DACA,
making DACA inherently ultra vires and exposing DHS to significant
litigation risk.
Response: DHS respectfully disagrees with commenters' statements
that this rulemaking is unlawful, illegal, unconstitutional, or
represents bad immigration policy. Both the INA and the HSA confer
clear authority on the Secretary to administer the immigration laws of
the United States, including authority to set ``national immigration
enforcement policies and priorities.'' \135\ DHS, the former INS, and
the U.S. Supreme Court all have long recognized the fundamental role
that prosecutorial discretion plays with respect to immigration
enforcement. As the U.S. Court of Appeals for the Ninth Circuit has
explained, ``[T]he INA explicitly authorizes the [Secretary] to
administer and enforce all laws relating to immigration and
naturalization. . . . As part of this authority, it is well settled
that the Secretary can exercise deferred action, a form of
prosecutorial discretion.'' \136\ Stated another way, ``[d]eferred
action is simply a decision . . . by DHS not to seek the removal of an
alien for a set period of time,'' \137\ a decision well within DHS's
discretion in light of competing policy objectives and scarce
resources. Deferred action thus is a well-established form of
prosecutorial discretion, acknowledging ``that those qualifying
individuals are the lowest priority for enforcement.'' \138\
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\135\ 6 U.S.C. 202(5).
\136\ Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th
Cir. 2017).
\137\ Arpaio v. Obama, 27 F. Supp. 3d 185, 192-93 (D.D.C. 2014),
aff'd, 797 F.3d 11 (D.C. Cir. 2015).
\138\ Id.; see also AADC, 525 U.S. at 484-85.
---------------------------------------------------------------------------

DHS likewise disagrees with commenters' assertions that this
rulemaking fails to follow the law as established by Congress,
conflicts with Congress' legislative scheme to regulate the employment
of noncitizens, adjustment of status, removal, and reentry, or
otherwise violates the Executive's duty to ``take care that the Laws be
faithfully executed'' under Article II, Section 3 of the Constitution.
To the contrary, DHS strongly believes this rule is consistent with the
text of all relevant statutes and furthers Congress' goals in enacting
the INA and HSA. DHS acknowledges that the Constitution vests Congress
with the legislative power and, accordingly, the authority to make and
revise the immigration laws. The Department's prioritization of the
apprehension and removal of noncitizens who are a threat to national
security, border security, and public safety is entirely consistent
with the immigration laws, including provisions providing for mandatory
detention and expedited removal of certain categories of
individuals.\139\ Indeed, as noted in the NPRM, 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.\140\ This rule facilitates those objectives.
---------------------------------------------------------------------------

\139\ 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''); DHS, Secretary Mayorkas Announces New
Immigration Enforcement Priorities (Sept. 30, 2021), https://www.dhs.gov/news/2021/09/30/secretary-mayorkas-announces-new-immigration-enforcement-priorities.
\140\ See, e.g., Consolidated Appropriations Act, 2014, Public
Law 113-76, div. F, tit. II, 128 Stat. 5, 251.
---------------------------------------------------------------------------

More than 11 million undocumented noncitizens currently live in the
United States,\141\ demonstrating an obvious need for DHS to allocate
its limited resources toward the removal of priority enforcement
targets. For example, in fiscal year 2021, when ICE operations were
dramatically impacted by the COVID-19 pandemic, ICE conducted a total
of 74,082 administrative arrests of noncitizens and removed 59,011
noncitizens.\142\ During fiscal years 2016-2020, ICE averaged 131,771
administrative arrests and 235,120 removals per year.\143\ It is clear
from

[[Page 53186]]

these numbers that even if each of the estimated 1.7 million
noncitizens who may be eligible to request initial or renewal deferred
action under DACA (which as discussed in the regulatory analysis below
is likely an overestimate) did so and were found to warrant deferred
action as codified in this rule as low enforcement priorities, DHS
would still lack adequate resources to pursue full enforcement actions
against the estimated 9 million other undocumented noncitizens present
in the United States. This rulemaking accordingly will allow DHS to
focus its enforcement resources on the removal of dangerous criminal
offenders and other noncitizens who threaten public safety and national
security.
---------------------------------------------------------------------------

\141\ 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/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf.
\142\ ICE, ICE Annual Report Fiscal Year 2021 (Mar. 11, 2022),
https://www.ice.gov/features/2021-year-review.
\143\ ICE, Fiscal Year 2016 ICE Enforcement and Removal
Operations Report, https://www.ice.gov/sites/default/files/documents/Report/2016/removal-stats-2016.pdf; ICE, Fiscal Year 2017
ICE Enforcement and Removal Operations Report, https://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf;
ICE, Fiscal Year 2018 ICE Enforcement and Removal Operations Report,
https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf; ICE, Fiscal Year 2019 ICE Enforcement and
Removal Operations Report, https://www.ice.gov/sites/default/files/documents/Document/2019/eroReportFY2019.pdf; ICE, FY 2020 Annual
Report, https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf.
---------------------------------------------------------------------------

DHS shares commenters' recognition of and respect for the
Constitution's separation of powers framework. But DHS disagrees with
commenters' position that this rulemaking bypasses Congress' role in
the legislative process or otherwise fails to adhere to DHS's proper
place within the Government of the United States. DHS acknowledges that
the INA generally provides for the removal of noncitizens who are in
the United States without authorization. Never in the history of DHS or
the former INS, however, has either agency or a court taken the
position that the agency is obligated to seek the removal of every
removable noncitizen in the United States at any given time. And both
the long history of formal deferred action policies instituted both by
DHS and the former INS (some of which Congress went on to ratify) and
other forms of prosecutorial discretion that individual government
officials lawfully exercise on a case-by-case basis every day belie any
assertion to the contrary. DHS agrees that those prior policies are not
``authority'' for this rule. Rather, the authority for the rule lies in
a range of statutory authorities, including DHS's general rulemaking
authority under section 103 of the INA as well as DHS's power to
exercise enforcement discretion, which is inherent in the delegation of
authority over enforcement of the INA.\144\ The prior, related policies
discussed in the NPRM and by commenters are evidence of the Secretary's
authority, recognized by Congress when it ratified those policies in
later statutes without limiting INS's (and now DHS's) ability to create
similar enforcement discretion policies in the future. DHS also notes
that many of these policies also contained similar or the same
ancillary features, including employment authorization upon showing of
economic necessity, lawful presence for the limited purposes stated in
8 CFR 1.3, and nonaccrual of unlawful presence for the duration of the
period of deferred action. The lawfulness of these ancillary features
is addressed at length in the sections corresponding to each such
feature later in this preamble.
---------------------------------------------------------------------------

\144\ See 6 U.S.C. 202(3), (5); 8 U.S.C. 1103(a)(1), (3); see
also Arizona, 567 U.S. at 396-97; AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------

DHS disagrees with the commenter's assertion that a policy granting
lawful presence and work authorization to the DACA-eligible population
is a matter of such ``deep economic and political significance'' as to
constitute a ``major question,'' as recently described by the Supreme
Court in West Virginia v. EPA.\145\ While DHS expects that this rule
would carry significant benefits and would result in significant tax
transfers, this rule is not akin to the rule in West Virginia, where
the agency's ``own modeling concluded that the rule would entail
billions of dollars in compliance costs (to be paid in the form of
higher energy prices), require the retirement of dozens of coal-fired
plants, and eliminate tens of thousands of jobs across various
sectors.'' \146\ This rule involves DHS's enforcement posture towards a
population that is likely to remain in the United States regardless of
the existence of DACA; the costs imposed by this rule are borne by DACA
recipients themselves; and the rule's indirect effects are nowhere near
as vast as the effects described in West Virginia.
---------------------------------------------------------------------------

\145\ 142 S. Ct. 2587 (2022).
\146\ Id. at 2604.
---------------------------------------------------------------------------

Even if the major questions doctrine did apply, there is clear
statutory authority and agency precedent for the rule. Unlike the
authority at issue in West Virginia, this final rule reflects ``the
longstanding practice of [DHS] in implementing the relevant statutory
authorities.'' \147\ Congress was well aware of the long history of
deferred action and similar enforcement discretion policies, as well as
the deferred action provisions in the employment authorization and
lawful presence rules, when Congress made the Secretary responsible for
``[e]stablishing national immigration enforcement policies and
priorities''; \148\ charged the Secretary with ``the administration and
enforcement of [the INA] and all other laws relating to the immigration
and naturalization of aliens''; \149\ and authorized 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 this chapter.'' \150\ Likewise, although the
Secretary inherited from the Attorney General his statutory authority
for determining which noncitizens should be authorized for employment,
that grant of power clearly endorsed a longstanding practice as
discussed in section II.C.2.b below.\151\ And as discussed in section
II.C.3 below, after the Department of Justice established the lawful
presence regulation pursuant to express statutory authority, Congress
in fact amended 8 U.S.C. 1611 to provide DHS additional authority.
These authorities have long provided the basis for the exercise of
prosecutorial discretion when making immigration enforcement decisions,
or described some of the consequences of those decisions. These are not
``ancillary provisions'' of the Act that are rarely used,\152\ but
rather are foundational powers used daily in the Secretary's routine
administration of the nation's immigration system. Nor is the exercise
of prosecutorial discretion as laid out in this rule a ``fundamental
revision'' of the statutory scheme; the exercise of prosecutorial
discretion is and has long been a consequence of a lack of resources to
enforce the terms of that scheme against each and every individual who
may violate it.\153\
---------------------------------------------------------------------------

\147\ See Biden v. Missouri, 142 S. Ct. 647, 653 (2022).
\148\ 6 U.S.C. 202(5).
\149\ 8 U.S.C. 1103(a)(1).
\150\ 8 U.S.C. 1103(a)(3).
\151\ 8 U.S.C. 1324a(h)(3).
\152\ 142 S.Ct. at 2610.
\153\ Id. at 2612.
---------------------------------------------------------------------------

As detailed below, these policies date as far back as 1956 and DHS
and its precursor agencies have ``routinely'' implemented prosecutorial
discretion policies of a similar scale and type as the DACA policy,
Biden v. Missouri, 142 S. Ct. 647, 653 (2022). There is no sense in
which this rule exercises a ``newfound power.'' And, although DHS
recognizes that Congress has, on occasion, considered legislation
concerning the population affected by this rule, such action does not
negate the authority previously provided to and historically exercised
by the Secretary in the same realm. As noted elsewhere in this
preamble, unlike the legislative actions considered by Congress, the
rule does not provide lawful status, a path to permanent residency or
citizenship, or any other type of permanent immigration solution for
the population, which the

[[Page 53187]]

Department agrees only Congress can enact.
DHS disagrees with commenters who stated that prior instances of
deferred action or similar enforcement discretion policies referenced
in the NPRM are materially different from deferred action under the
DACA policy. In essence, commenters said that the validity of prior
policies such as EVD, Family Fairness, and deferred enforced departure
turned on those programs' ``interstitial'' nature. Those programs, in
the commenters' view, simply provided a stopgap measure intended to
serve only as a temporary solution while Congress legislated a
permanent fix. That may have been the ultimate result for the affected
populations, but it was by no means assured that Congress would act
when legacy-INS implemented those policies. The INS relied not on an
assurance of future Congressional ratification, but on its authority to
exercise enforcement discretion when implementing those policies, with
the possibility that Congress might one day act. DACA in this respect
is no different from the earlier programs. Congress is actively
considering legislation to provide substantive immigration benefits to
a DACA-like population. Thus, to the extent commenters characterized
prior instances of deferred action as ``interstitial'' simply because
they occupied the space between an agency seeking to implement a
certain policy and Congress providing an adjacent legislative solution,
DACA occupies an identical space. And also like DACA, the
administrative enforcement discretion policies practiced by the INS did
not provide beneficiaries with lawful immigration status, protection
from removal, or a pathway to citizenship until Congress made a change
in law.\154\
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\154\ See Alan C. Nelson, Commissioner, INS, Legalization and
Family Fairness--An Analysis (Oct. 21, 1987), reprinted in 64 No. 41
Interpreter Releases 1191, App. I (Oct. 26, 1987); 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); IMMACT 90, Public Law 101-649, sec. 301(g), 104
Stat. 4978, 5030 (1990).
---------------------------------------------------------------------------

DHS further disagrees with commenters who stated that Congress'
consistent failure to enact DACA-like legislation is evidence that this
rule exceeds DHS's authority. For one thing, many of the bills the
commenters point to differ greatly from DACA in substance. Both the
DREAM Act and the American Dream and Promise Act differ dramatically
from DACA in the protections and substantive benefits that they would
offer to their respective target populations, the most notable being
lawful immigration status and a pathway to citizenship. DACA, by
contrast, as preserved and fortified by this rule, does not and could
not provide a blanket grant of lawful immigration status, conditional
or permanent residence, or a pathway to citizenship because DHS lacks
authority to do so without a change in law. For another, inaction is
not legislation, and Congress does not legislate by failing to
legislate. Congress' past inaction on any given topic is not a law.
Congressional inaction may occur for any number of reasons, and it does
not enact the status quo, or come with an account of Congress' reasons
for declining to take action. In DHS's view, inaction as such has no
bearing on the legality of an adjacent rulemaking. For example, the
former INS instituted Family Fairness in the wake of Congress' express
rejection of legislation that would have provided immigration benefits
to spouses and children ineligible for such relief under the
Immigration Reform and Control Act of 1986 (IRCA). Legislation stalls
in Congress for myriad reasons, not the least of which include
competing priorities of national and international importance and the
sheer volume of business to which Congress must attend.
One more point bears mentioning with respect to congressional
inaction in this space. While commenters drew much attention to
Congress perennially declining to enact DACA-like legislation,
commenters largely ignored Congress' comparable failure to
legislatively override the DACA policy even though it has now existed
for years. There is no basis to conclude that Congress has rejected a
longstanding deferred action policy for the DACA population from its
failure to enact more comprehensive legislation governing a similar
population.
With respect to a commenter's statement that, setting aside the
Secretary's authority to exercise prosecutorial discretion in favor of
this rulemaking's target population, DHS cannot implement sweeping
policy changes under the guise of prosecutorial discretion: DACA is no
such sweeping change. As the NPRM makes clear, there is nothing new
about a policy deferring enforcement action for nonviolent individuals
who are low priorities for enforcement, nor is there anything new about
the ancillary policies, regulations, and statutes associated with such
forbearance, including according employment authorization to such
individuals upon a showing of economic necessity, or deeming such
individuals to be lawfully present for certain purposes or not
unlawfully present for the duration of the deferred action. Indeed, as
it relates to the core of the policy (i.e., its forbearance element),
the former INS first implemented the EVD program in 1956, which
provided relief to certain immigrant professionals whose lawful
immigration status lapsed simply by virtue of constraints on visa
availability.\155\ This program continued until 1990 and was joined
along the way by a variety of other deferred action policies all geared
toward making the most efficient use of the former INS's limited
enforcement resources.\156\ DHS also reiterates the prior deferred
action policies in favor of (1) ``nonpriority'' cases identified in the
former INS's 1959 Operations Instructions (OI); (2) spouses and
children of noncitizens granted benefits under IRCA; (3) Violence
Against Women Act of 1994 (VAWA) self-petitioners; (4) children
eligible for benefits under the Victims of Trafficking and Violence
Protection Act of 2000 (VTVPA); (5) T visa applicants; (6) U visa
petitioners; and (7) former F-1 students who lost their status due to
intervening natural disasters.\157\ Each of these populations by their
nature possess characteristics that make them low enforcement
priorities. DHS views the DACA population as prime candidates for
deferred action for similar reasons.
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\155\ See United States ex rel. Parco v. Morris, 426 F. Supp.
976, 979-80 (E.D. Pa. 1977).
\156\ See Adam B. Cox and Cristina M. Rodriguez, The President
and Immigration Law Redux, 125 Yale L.J. 104, 122-24 (2015)
(discussing the origins and various applications of EVD).
\157\ See 86 FR 53747-53748.
---------------------------------------------------------------------------

The same commenter wrote that the ``longstanding'' nature of the
above policies nevertheless does not excuse the absence of express
statutory authority to engage in this rulemaking. DHS first disagrees
with the commenter's premise that DHS lacks express statutory authority
to issue this rule. To the contrary, as explained earlier, both the INA
and the HSA vest the Secretary with authority to issue this rule by
virtue of statutory directives that he administer and enforce the
immigration laws of the United States, set ``national immigration
enforcement policies and priorities,'' and ``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 INA.\158\
This rulemaking is a lawful exercise of that authority, facilitating
DHS's immigration enforcement priorities through a thoughtful exercise
of prosecutorial

[[Page 53188]]

discretion. Because deferred action under the proposed rule would
constitute a lawful exercise of prosecutorial discretion in line with
over 60 years of similar policies (some of which, as discussed
elsewhere in this preamble, came with grants of work authorization so
recipients could support themselves and their families while in the
United States without resorting to informal employment, which has the
possibility of lowering wages and employment standards for some
workers), DHS finds the commenter's arguments to the contrary
unpersuasive.
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\158\ See 6 U.S.C. 112, 202; 8 U.S.C. 1103(a)(1), (3).
---------------------------------------------------------------------------

DHS disagrees with multiple commenters' characterization of DHS's
view of the July 2021 ruling of the United States District Court for
the Southern District of Texas in the Texas litigation. Contrary to
commenters' assertions, DHS respects the courts' role in this nation's
government under the separation of powers framework. DHS has carefully
and respectfully considered the court's ruling on all procedural and
substantive issues involved in that litigation and is pursuing an
appeal to vindicate its position on DACA's legality. In the meantime,
DHS has complied with the district court's injunction, to the extent
that the injunction has not been stayed, and will continue to do so as
long as the injunction is in effect.
In any event, this rulemaking should not be construed as indicating
that DHS doubts DACA's procedural or substantive legality. DHS elected
to undertake this rulemaking for a variety of reasons, including to
affirm administrative practices that help the Department to allocate
its enforcement resources efficiently; accommodate the substantial
reliance interests that have developed in connection with the DACA
policy; implement the President's directive to preserve and fortify
DACA; and facilitate compelling humanitarian objectives.
Last, DHS disagrees with the commenter's statement that USCIS lacks
authority to administer DACA because it is not an enforcement agency.
The authority to administer the immigration laws and set immigration
enforcement priorities ultimately rests with the Secretary.\159\ This
rule is issued under these and other broad authorities; as a
consequence, there is no basis to distinguish between USCIS and other
immigration components as the commenter proposes. And in any event,
USCIS has historically been delegated and has exercised a range of
functions that would fall under the rubric of ``enforcement'' as
described by the commenter.\160\ DHS has determined that USCIS has the
expertise and administrative infrastructure to assess on a case-by-case
basis whether a DACA requestor has met the threshold criteria and
warrants a favorable exercise of discretion. Housing administration of
the DACA policy within USCIS also furthers DHS's interest in
encouraging candidates for deferred action under DACA to come forward
and identify themselves to the Federal Government. Proactively
identifying noncitizens eligible for and deserving of deferred action
under the DACA policy will ultimately conserve department resources by
helping ICE and CBP identify noncitizens who are low priorities for
removal should those components encounter them in the field, as
discussed in Section II.A.8, and utilizes existing structures for
collecting fees from DACA requestors to cover the costs of such
adjudication.\161\
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\159\ See, e.g., 6 U.S.C. 112(a)(3) (``All functions of all
officers, employees, and organizational units of the Department are
vested in the Secretary''); 8 U.S.C. 1103(a)(1) (``The Secretary . .
. shall be charged with the administration and enforcement of this
chapter and all other laws relating to the immigration and
naturalization of aliens . . . .''), 1103(a)(3) (``He shall
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 this chapter.''), 1103(a)(4) (``He may
require or authorize any employee of the Service or the Department .
. . to perform or exercise any of the powers, privileges, or duties
conferred or imposed by this chapter or regulations issued
thereunder upon any other employee of the Service.'').
\160\ See, e.g., DHS Del. No. 0150.1 (June 5, 2003) (delegating
to USCIS the authority to place noncitizens in removal proceedings,
to cancel a notice to appear before jurisdiction vests with DOJ, and
to grant voluntary departure and deferred action, among other
things); Memorandum from Secretary John Kelly to the heads of CBP,
ICE, and USCIS, et al., Enforcement of the Immigration Laws to Serve
the National Interest (Feb. 20, 2017) (``The exercise of
prosecutorial discretion with regard to any alien who is subject to
arrest, criminal prosecution, or removal in accordance with law
shall be made on a case-by-case basis in consultation with the head
of the field office component, where appropriate, of CBP, ICE, or
USCIS that initiated or will initiate the enforcement action,
regardless of which entity actually files any applicable charging
documents . . . .'' (emphasis added)).
\161\ See 86 FR 53764.
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Assertions That DACA/the Proposed Rule Is Lawful
Comment: Multiple commenters stated the DACA policy and its
implementation are constitutional, lawful, and within the authority of
DHS and the executive branch. Some commenters stated that DHS has
authority to fortify, update, and expand the DACA policy. Another
commenter stated that DACA is legal and within DHS's authority, and
that both Congress and the Federal courts have recognized that
protecting the well-being of children is in the public interest. Citing
sources, the commenter said the legislative history of the INA
indicates Congress ``intended to provide for a liberal treatment of
children'' and sought to keep mixed-status families together.\162\ A
different commenter stated that DACA is constitutional because ``it
transformed the lives of many individuals who came to the United States
improperly as youngsters and because the court decision that resulted
would provide Dreamers broader access to American citizenship.''
Quoting from the NPRM, a joint comment wrote that Congress' failure to
pass the DREAM Act or any of the other similar acts identified by the
district court in Texas does not limit DHS's ability to make a rule
similar to the DACA policy first set forth in the Napolitano
Memorandum.
---------------------------------------------------------------------------

\162\ See INS v. Errico, 385 U.S. 214, 220 n.9 (1966) (``The
legislative history of the [INA] clearly indicates that the Congress
intended to provide for a liberal treatment of children and was
concerned with the problem of keeping families of United States
citizens and immigrants united.'' (internal quotation marks
omitted)).
---------------------------------------------------------------------------

A commenter stated that the DACA policy is a lawful exercise of the
Secretary's authority, even without notice-and-comment rulemaking. A
different commenter stated that DACA has a strong legal foundation and
agreed with DHS that the proposed rule ``should not be interpreted as
suggesting that DHS itself doubts the legality of the 2012 DACA
policy.'' Another commenter stated that, like DOJ and DHS, they
strongly disagreed rulemaking is necessary for DACA. However, the
commenter said, because litigation has challenged the legality of the
policy and prompted DHS to engage in formal rulemaking, DHS taking the
additional step to ``preserve and fortify'' the policy through the
rulemaking process not only strengthens the legal foundation for the
policy, but also provides DHS with the opportunity to expand and
modernize it.
Referencing the proposed language at 8 CFR 236.21 set forth in the
NPRM, a group of commenters characterized this section of the proposed
rule as a ``clarification (for the courts)'' of DHS's authority to
regulate in this space. The commenters stated they hoped the agency
would keep this section as clear as possible given the likelihood of
litigation.
One commenter said the proposed rule provides a ``rigorous'' review
of the legal precedent and broad executive authority, all of which
provides a ``strong'' justification for DACA's

[[Page 53189]]

establishment of national immigration policies and priorities and
places the rule on strong legal footing. Another commenter stated that
the historical examples of prior deferred action policies explain well
why DACA is lawful as a subregulatory program fully within the
Secretary's authority under the INA.
Response: DHS agrees with commenters that the proposed rule is a
lawful exercise of DHS's authority under the INA. DHS agrees with
commenters that the proposed rule is constitutional and that it
furthers compelling humanitarian, public safety, and other policy
objectives. Additionally, as discussed above, DHS agrees with
commenters that Congress' failure to pass legislation to protect a
DACA-like population does not implicate DHS's authority to engage in
this rulemaking.
DHS agrees with commenters that the DACA policy has stood on strong
legal footing since first set forth in the Napolitano Memorandum, even
without engaging in full notice-and-comment rulemaking. DHS appreciates
commenters' recognition of DHS's efforts to preserve and fortify DACA
through this rulemaking. DHS agrees that 8 CFR 236.21 clearly
articulates DACA's limited scope and DHS's authority for deferring
action for the DACA population. DHS likewise agrees with commenters
that DACA respects Congress' legislative scheme to regulate noncitizens
present in the United States without authorization and eligibility for
lawful immigration status, while providing stability to recipients
through a lawful exercise of DHS's prosecutorial discretion.
DHS appreciates the commenter's concern about DACA recipients'
current lack of ability to adjust status, but DHS disagrees with
commenters to the extent they suggest the rule does or should provide a
pathway to lawful immigration status, legal permanent residence, or
U.S. citizenship. DHS appreciates commenters' concern about the current
lack of a permanent immigration status for the DACA population. DHS
reiterates its discussion in Section II.A.11 that it lacks the
authority to provide legal immigration status through rulemaking. DHS
nevertheless ultimately agrees with commenters that this rulemaking is
a lawful exercise of its statutory authority.
Prosecutorial Discretion and Deferred Action Authority
Comment: Numerous commenters stated that DACA is a lawful
application of DHS's broad authority to exercise prosecutorial
discretion and defer enforcement action for certain noncitizen youth.
Multiple commenters referenced 8 U.S.C. 1103(a) in stating that
Congress empowered the Secretary with broad authority to administer and
enforce immigration laws, with one commenter stating that such
authority must include the ability to set enforcement priorities for an
agency with limited resources. Also citing 6 U.S.C. 202(5), commenters
wrote that Congress has broadly authorized DHS to establish national
immigration enforcement policies and priorities. One of these
commenters said that, as a purely practical matter, the Executive must
be able to set priorities for administrative agencies with limited
resources, and it may do so by choosing to defer action in certain
areas. The commenter stated both the Supreme Court and Congress have
recognized this authority, as Congress has enacted statutes expressly
recognizing the legal authority to grant deferred action, and the
Supreme Court has acknowledged the ``regular practice'' of ``deferred
action.'' Another commenter similarly stated that as a purely practical
matter, the Executive must be able to set priorities for administrative
agencies with limited resources, and it may do so by choosing to defer
action in certain areas. The commenter stated both the Supreme Court
and Congress have recognized this authority, as Congress has enacted
statutes expressly recognizing the legal authority to grant deferred
action and the Supreme Court has acknowledged the ``regular practice''
of ``deferred action.''
A commenter wrote that the president and executive agencies have
the power to carry out legislation, interpret ambiguous provisions, and
make decisions about how best to allocate scarce agency resources.
Another commenter stated the Supreme Court on numerous occasions has
reaffirmed the wide latitude agencies enjoy in deciding whether or when
``to prosecute or enforce'' laws within their purview. As recently as
2020, the commenter wrote, the Supreme Court affirmed the key part of
deferred action when it stated in Regents that ``[t]he defining feature
of deferred action is the decision to defer removal.'' These commenters
and others stated that, as existing 8 CFR 1.3(a)(4)(vi) makes clear,
this rulemaking fits within the deferred action framework because it
does not confer legal status, but instead merely exempts individuals
from accumulating ``unlawful presence.'' Similarly, a commenter agreed
with USCIS that DACA is consistent with the INA because it is limited
in scope and nature, conferring only ``lawful presence,'' not ``lawful
status,'' which does not create a legally enforceable right for
undocumented immigrants able to avail themselves of the DACA policy.
A commenter added that for decades the Federal Government has
implemented deferred action as a discretionary forbearance of removal.
The commenter reasoned that this policy of deferring removal of
noncitizens who came to this country as youth did not then (and does
not now) create new rights for those individuals; rather, it is merely
a recognition that as an agency, DHS (through USCIS), just as every
other law enforcement agency, must exercise enforcement discretion. The
commenter, writing that the proposed rule rightfully sets forth the
position that people who otherwise qualify for DACA are not a priority
for removal, urged DHS to maintain this policy in the final rule and
use its discretion accordingly. A commenter stated that deportations
are a discretionary duty of the executive branch as established by
Regents, Trump v. Hawaii, and other cases establishing executive branch
authority to regulate immigration policy.
A commenter stated that Congress, which has the ability to prohibit
DHS from granting deferred action and work and travel authorization,
through funding or through legislation, has not done so, implying the
policy does not fall outside of congressional intent.
A commenter stated the DACA policy has been in place for a decade,
and no State filed suit to challenge the legality of the Napolitano
Memorandum until 2018--more than 5 years after the memorandum was
issued. But beginning long before 2012, the commenter remarked, DHS and
INS routinely exercised prosecutorial discretion to deprioritize
categories of individuals for enforcement and to provide these
individuals with adjacent, necessary privileges, such as work
authorization. The commenter stated that the proposed rule, like the
Napolitano Memorandum, therefore does not constitute a deviation from
established practice, nor does the proposed rule constitute abandonment
of the Executive's duty to enforce the immigration laws. Rather, the
commenter stated, it represents the Executive's educated judgment about
the best and most efficient way to enforce the immigration laws.
Another commenter said this history refutes the Department's prior
assertion in the Duke Memorandum that deferred action programs should
be initiated by Congress. In fact, the commenter wrote, Congress later
clarified, expanded, or adopted through statute many of the

[[Page 53190]]

deferred action programs that originated with INS or DHS. The commenter
stated that, rather than refute DHS's assertion of authority to make
such exceptions, Congress used them as a ``legislative springboard,''
which the commenter said implies not only the legality of those
programs, but also their political wisdom. The commenter concluded that
DHS should thus use this long history of creating deferred action
programs to rebut its prior assertion that only Congress should adopt
deferred action policies as a matter of policy.
Commenters further stated that previous executive action bears out
the Government's authority to exercise discretion in enforcing
immigration laws, saying that, since 1956, immigration agencies have
issued policies granting individuals temporary and discretionary relief
from deportation and, in many cases, work authorization, without
opposition from Congress or the courts. A commenter stated that these
prosecutorial discretion policies have allowed the executive branch to
balance competing domestic policy objectives, foreign policy concerns,
and humanitarian considerations. Multiple commenters wrote that
existing areas of humanitarian relief, such as VAWA self-petitions, U
nonimmigrant status, and TPS, demonstrate the well-established
character and practice of granting deferred action for sympathetic,
nonpriority populations. Another commenter pointed to 17 deferred
action policies other than DACA that were enacted without being
judicially challenged. In particular, the commenter wrote, President
Reagan's ``Family Fairness'' program often draws comparison with DACA,
as it provided deferred action for the children of parents eligible for
legal status and, like DACA, provided an opportunity for employment
authorization.
Another commenter stated that even the detractors of DACA
acknowledge its legality amid their challenges by recognizing DHS has
the authority to defer enforcement against migrants. Subjected to
scrutiny and rulemaking, the commenter said, DACA has been and remains
a lawful vehicle for protecting migrants brought to the United States
as young children. The commenter concluded that, just as the Napolitano
Memorandum emphasizes not only the legality, but also the necessity, of
exercising prosecutorial discretion on a case-by-case basis, so too
does the proposed rule both meet and exceed the threshold requirements
of the APA and INA. A commenter wrote that Congress and the courts have
recognized the importance of child well-being and family unity as a
basis for humanitarian considerations in immigration law and the
executive branch's authority to exercise its discretion.\163\ The
commenter concluded that ``it clearly follows'' that it is well within
DHS's authority to use the powers given to it by Congress to grant
deferred action to immigrants who are not and should not be a priority
for deportation--immigrants who came to the United States as children--
and preserve the family unity and well-being of these immigrants'
children. Commenters thus stated DACA is a lawful and appropriate use
of the Executive's longstanding deferred action authority, unless and
until Congress passes a permanent solution to address the problems of
undocumented youth.
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\163\ The commenter cited Prince v. Massachusetts, 321 U.S. 158,
165 (1944) (noting ``the interests of society to protect the welfare
of children''); Moore v. East Cleveland, 431 U.S. 494, 503-04 (1977)
(``Our [substantive due process] decisions establish that the
Constitution protects the sanctity of the family precisely because
the institution of the family is deeply rooted in this Nation's
history and tradition.''); INS v. Errico, 385 U.S. 214, 220 n.9
(1966) (`` `The legislative history of the Immigration and
Nationality Act clearly indicates that the Congress intended to
provide for a liberal treatment of children and was concerned with
the problem of keeping families of United States citizens and
immigrants united.' '' (quoting H.R. Rep. No. 85-1199, at 7
(1957))).
---------------------------------------------------------------------------

A commenter stated that DHS's decision to undertake full notice-
and-comment rulemaking in this instance does not reflect a requirement
to do so when implementing deferred action policies or exercising other
forms of prosecutorial discretion in the future. Citing DOJ's Justice
Manual and Supreme Court caselaw on prosecutorial discretion,\164\ the
commenter said that DACA and other forms of prosecutorial discretion
lie within the executive branch's power to determine ``when, whom, how,
and even whether to prosecute,'' a power that applies across criminal,
civil, and administrative contexts. The commenter stated Congress and
the Supreme Court have affirmed that prosecutorial discretion,
including through deferred action, applies in the immigration context,
and Congress also has given the executive branch the authority to
establish national immigration enforcement policies and priorities.
---------------------------------------------------------------------------

\164\ The commenter cited DOJ, Justice Manual, Sec. 9-27.110
(Comment), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.001; Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978); Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); and Arizona
v. United States, 567 U.S. 387, 396 (2012).
---------------------------------------------------------------------------

Response: DHS agrees that deferring enforcement action for the DACA
population on a case-by-case basis is a lawful exercise of DHS's broad
prosecutorial discretion, which both Congress and the courts have
recognized for decades. DHS also agrees that the DACA policy furthers
compelling humanitarian and law enforcement objectives by allowing DHS
to focus limited agency resources on priority targets and deferring
action on the cases of certain noncitizens who entered the United
States as children. DHS recognizes that Congress' inaction with respect
to the DACA population has been taken by commenters to cut both ways;
regardless of that inaction, DHS agrees with commenters that Congress
has vested the Secretary with clear authority to administer and enforce
the immigration laws and to establish national immigration policies,
objectives, and priorities. DHS agrees with commenters that DACA
facilitates a prudent set of immigration enforcement priorities,
allowing DHS to utilize its limited resources efficiently by targeting
high-priority cases, such as those that pose a threat to public safety,
national security, or border security. DHS likewise agrees with
commenters that the proposed rule comfortably fits within the deferred
action framework that DHS and INS before it have utilized for decades.
DHS also agrees the extensive use of deferred action in the past by
both INS and DHS to facilitate enforcement priorities further indicates
the lawfulness of this rule. Although VAWA self-petitions, U-visas, and
TPS are statutory forms of substantive immigration benefits (and
therefore distinguishable from the DACA policy, which constitutes only
an exercise of prosecutorial discretion to defer enforcement action
against removable noncitizens), DHS accordingly nevertheless agrees
with commenters that the long history of deferred action immigration
policies originating with INS or DHS rebuts any assertion that such
policies must always originate in Congress with a law specific to the
particular population at issue.
DHS appreciates commenters' recognition of the numerous
similarities between DACA and prior instances of deferred action and
agrees the DACA population shares a number of sympathetic
characteristics with the target populations of prior deferred action
policies, making members of the DACA population prime candidates for
deferred action themselves. DHS agrees that DACA is another in a long
line of deferred action policies that have facilitated the necessary
prioritization of enforcement resources by granting forbearance to
sympathetic populations of noncitizens in the United States. DHS agrees
that such populations have

[[Page 53191]]

included certain pending U nonimmigrant petitioners before they have
attained lawful status and certain VAWA self-petitioners prior to their
final approvals to adjust to permanent resident status, among many
other compelling population groups that have received deferred action
and that are discussed in detail in the preamble to the proposed
rule.\165\ DHS disagrees, however, that TPS beneficiaries, who are in a
lawful temporary status, are an example of noncitizens with deferred
action as that is not accurate.
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\165\ See 53736 FR 53746-53749 (discussing the history of at
least 60 years of prosecutorial discretion policies that have
provided various sympathetic groups protection from removal action).
DHS does note with respect to the examples of the pending U
nonimmigrant petitioners and the VAWA self-petitioners that once
they are granted U nonimmigrant status or permanent resident status,
these individuals are not like DACA recipients because they are in a
lawful status and no longer subject to the prosecutorial discretion
afforded by deferred action.
---------------------------------------------------------------------------

DHS shares commenters' view that in addition to DHS's authority to
forbear from pursuing the removal of DACA recipients, DHS has authority
to allow such DACA recipients to work during their time in the United
States, and that work authorization is just as necessary and
appropriate for the DACA population as it was, for example, for the
population that received deferred action under the Family Fairness
policy. DHS addresses comments related to work authorization, lawful
presence, and non-accrual of unlawful presence more fully later in this
preamble.
2. Litigation and Legal Disputes
Comment: Multiple commenters stated that the rule adequately
addressed the concerns raised by the district court in Texas, which
held DACA to be unlawful. One commenter said the rule responds to
prolonged litigation over the policy's legality. Another commenter
summarized the litigation involving DACA. Citing legal memoranda and
court cases, the commenter stated the core components of DACA are
legally and historically well-established, including deferred action, a
well-established form of prosecutorial discretion under which the
Federal Government forbears removal action against an individual for a
designated period of time; employment authorization; and nonaccrual of
unlawful presence. Another commenter wrote that the Texas district
court was wrong in concluding notice-and-comment rulemaking was
necessary to create the DACA policy, as well as in its concerns about
the policy's substantive legality. A couple of commenters noted that
the Supreme Court's June 23, 2016 affirmance without opinion of the
Fifth Circuit's preliminary injunction blocking Deferred Action for
Parents of Americans and Lawful Permanent Residents (DAPA) and expanded
DACA is not precedential and does not bind DHS, and further noted that
the Court's 2020 Regents decision does not restrict DHS from expanding
DACA. The commenters said other courts have and would likely again
grapple with similar questions. DHS therefore is, in the commenters'
view, ``completely justified'' in continuing to litigate the district
court's decision until a single, final disposition emerges.
A commenter stated that DACA does not violate the INA and is a
lawful exercise of executive discretion conferred by Congress, contrary
to the district court's 2021 decision in Texas. The commenter cited 8
U.S.C. 1103 in discussing DHS's authority and went on to say the
Supreme Court recognized this authority with respect to immigration
enforcement and removals in Arizona v. United States when it
underscored that executive officials have ``broad discretion'' in
deciding ``whether to pursue removal at all.'' \166\ The commenter
reasoned that the case-by-case consideration of DACA requests is not
the automatic conferral of a benefit as some detractors have
characterized it, but rather an exercise of discretion in deciding
whether to invest limited enforcement resources into the removal of
low-priority individuals. The commenter stated that, while the court in
Texas held DACA violates the INA by making statutorily ``removable''
individuals unremovable, DACA does not make any individual unremovable
because the agency may initiate removal proceedings against the
individual at any time.
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\166\ 567 U.S. 387, 388 (2012); see also id. at 396
(``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 whether the
alien has children born in the United States, long ties to the
community, or a record of distinguished military service. Some
discretionary decisions involve policy choices that bear on this
Nation's international relations.'').
---------------------------------------------------------------------------

A commenter stated that it was ``unclear'' whether the rulemaking
would be deemed legal if the litigation begun in 2018 is upheld by the
Supreme Court but remarked that their research disputes that any
irreparable harm or additional costs to States would be caused by the
proposed rule.\167\
---------------------------------------------------------------------------

\167\ The commenter cited Brannon and Albright (2017), Albright
(2018), Brannon and McGee (2019), and Brannon and McGee (2021).
---------------------------------------------------------------------------

Citing Regents and another source, a commenter stated that, in
response to litigation surrounding the Trump administration's efforts
to rescind DACA, the Supreme Court held that DHS failed to properly
rescind DACA procedurally, but the Court did not issue a finding that
DACA was illegal. Regardless of how the Fifth Circuit decides DHS's
appeal in Texas, the commenter remarked, it appears inevitable that the
Supreme Court ultimately will have to make a determination as to the
legality of the DACA policy. A university characterized the evidentiary
record of Regents as a tool in this rulemaking, as it outlines the many
benefits of DACA to the university and society, including expert
testimony and studies about the value of DACA. A few commenters noted
that they are participating or have participated in ongoing litigation
to support the DACA policy.
Response: DHS agrees that undertaking notice and comment through
the proposed rule puts DACA on stronger legal footing in light of the
district court's decision in Texas and other pertinent litigation. DHS
continues to believe that notice-and-comment rulemaking is not
necessary to implement in the exercise of prosecutorial discretion a
deferred action policy for the DACA population. Nevertheless, DHS
agrees that the notice-and-comment process has significant value, as a
means of obtaining a variety of input on proposed rules (including this
one), and it also agrees with commenters that the proposed rule
addresses the district court's procedural concerns and plays an
important role in DHS's vindication of its position on DACA's legality.
DHS has given careful consideration to the district court's
reasoning regarding the substantive legality of the DACA policy and the
court's conclusion that the policy is not authorized by the INA. For
reasons set forth above and below, in the preamble to the proposed
rule,\168\ and also reflected in the government's publicly available
briefs in the appeal from the district court's decision, DHS
respectfully disagrees with the district court's reasoning and
conclusion regarding the policy's substantive legality. Notwithstanding
that disagreement, DHS recognizes that it is currently subject to an
injunction and that it is obligated to comply with that injunction to
the extent that the injunction is not stayed. Nothing in this

[[Page 53192]]

preamble or in the final rule itself is intended to suggest otherwise.
---------------------------------------------------------------------------

\168\ See 86 FR at 53753 n.145, 53756 n.178, 53759-61, 53761 at
n.235.
---------------------------------------------------------------------------

Additionally, DHS is clarifying at new 8 CFR 236.21(d) that this
rule rescinds and replaces the DACA guidance set forth in the
Napolitano Memorandum and governs all current and future DACA grants
and requests from this point forward. It further clarifies that
existing recipients need not request DACA anew under this new rule to
retain their current DACA grants. Although incorporating such a
provision into regulatory text is a departure from previous practice,
in light of the various issues and concerns raised in ongoing
litigation challenging the Napolitano Memorandum, DHS has determined
that doing so is appropriate in this context.\169\
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\169\ See new 8 CFR 236.21(d).
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3. Other Comments and Suggestions
Comment: One commenter suggested that DHS more thoroughly address
several arguments that it previously offered against DACA in the Duke
and Nielsen rescission memoranda. On this point, the commenter stated,
in the Duke Memorandum, Nielsen Memorandum, and subsequent court
filings, DHS cited the risk of litigation as one basis for rescinding
DACA, focusing on the risk of DACA being struck down as unlawful or
enjoined to justify the position that DACA was too legally vulnerable
to continue without properly balancing competing positive factors. The
commenter said DHS's prior stance that DACA was bad policy because of
litigation risk is inconsistent with the proposed rule, which finds
that the benefits of the rule would exceed its costs. To address this
inconsistency and give a ``reasoned explanation'' for ``facts and
circumstances'' in the rescission, the commenter stated, DHS should
address the risk of litigation in the final rule. The commenter
recommended DHS: (1) explain how the prior rescission incorrectly
analyzed litigation risk; or (2) conclude that the rule is justified
even when litigation risk is properly accounted for. The commenter
provided suggestions on how DHS may address these issues, citing an
article that analyzed litigation risk in the context of DACA's
rescission and identified four key factors for DHS to consider. The
commenter stated that DHS should incorporate in the final rule an
explanation for why its previous assertions about litigation risk are
not dispositive here. In particular, the commenter added, DHS should
explain how its previous attempt to rescind DACA failed to analyze
properly the risks of litigation and put forth a more rational
framework to analyze DACA's litigation risk.
A couple of commenters understood the proposed rule as indicating
that the forthcoming final rule would displace the Napolitano
Memorandum and establish a new and independent basis through which
existing DACA recipients can maintain their deferred action. The
commenters agreed with that approach and suggested the final rule state
even more clearly that it supplants the Napolitano Memorandum, which
the commenters said would benefit current DACA recipients by providing
them with additional certainty. In addition, the commenters stated that
this clarification would provide broader certainty by making even
clearer that the pending litigation over the Napolitano Memorandum is
moot because that memorandum no longer has any independent legal
effect.
A commenter urged the administration to make all reasonable efforts
to preserve and strengthen DACA, including ensuring that DHS is
authorized to promulgate future policy and operational guidance for the
policy, consistent with the objectives of the 2012 policy.
A commenter wrote that a policy such as DACA should be a law
written by Congress and not made as an agency rule change. However, the
commenter stated, given the current partisan nature of Congress and the
low likelihood of Congress settling the issue of DACA anytime soon, the
proposed rule allowing DACA to continue is ``perhaps the best we can
hope for.''
Response: As indicated in the NPRM, the prior memoranda referenced
by the commenter have been vacated or deemed inoperative by various
courts.\170\ DHS acknowledges that such memoranda assigned more
significant weight to the risks associated with adverse litigation
against the DACA policy, but as noted earlier in this preamble,
litigation materialized as a consequence of attempts to rescind DACA as
well, and DHS believes that the significant costs associated with DACA
rescission would not be justified by the benefits identified in those
memoranda, including the asserted litigation risk benefit which, as
evidenced by the Regents litigation and other cases, did not fully
materialize. DHS agrees with commenters that codifying DACA will
provide recipients and their families, schools, communities, and
employers with additional certainty. DHS also will utilize appropriate
messaging to ensure DACA recipients are aware that the new DACA
regulation, not the Napolitano Memorandum, governs the DACA policy
going forward. DHS, however, will not be in a position to advise DACA
recipients that pending litigation concerning the Napolitano Memorandum
is moot unless and until a court issues a judgment of dismissal on
mootness grounds.
---------------------------------------------------------------------------

\170\ 86 FR 53749-53751.
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DHS appreciates the comment concerning DHS's efforts to protect
DACA recipients. DHS assures all interested parties that it is taking
all available action to preserve and fortify DACA consistent with the
President's directive. DHS likewise appreciates the commenter's
statements concerning the desirability of Congress enacting legislation
to protect the DACA population. In the absence of such action, DHS
believes that DACA is a viable approach that accommodates the relevant
reliance interests while preserving DHS's discretion on a case-by-case
basis.

C. Comments on Proposed Provisions

1. Deferred Action/Forbearance From Enforcement Action (Sec.
236.21(c)(1))
Comment: Several commenters expressed general support for DHS's
provision of an official definition of ``deferred action'' and for the
definition proposed. A few commenters expressed concern with the
proposed definition of ``deferred action.'' One stated that the
definition does not guarantee the ability to permanently reside in the
United States, which affects the ability to resettle, work, and thrive
in the United States successfully and forces DACA recipients to ``live
on the precipice of fearing deportation and being able to successfully
contribute to the community in which they choose to reside.'' Another
said that providing a definition creates safeguards but expressed
concern regarding the provision stating that deferred action does not
prevent DHS from initiating any criminal or other enforcement action
against the DACA recipient at any time. One commenter specifically
recommended removing the following language from proposed 8 CFR
236.21(c)(1): ``[a] grant of deferred action under this section does
not preclude DHS from commencing removal proceedings at any time.''
One commenter stated that the rule should directly address DHS's
prior statements that

DHS should enforce the policies reflected in the laws adopted by
Congress and should not adopt public policies of non-enforcement of
those laws for broad classes and categories of aliens under the
guise of prosecutorial discretion--particularly a class that
Congress

[[Page 53193]]

has repeatedly considered but declined to protect. Even if a policy
such as DACA could be implemented lawfully through the exercise of
prosecutorial discretion, it would necessarily lack the permanence
and detail of statutory law. DACA recipients continue to be
illegally present, unless and until Congress gives them permanent
status.\171\
---------------------------------------------------------------------------

\171\ See Nielsen Memorandum at 2.

The commenter stated that DHS should explicitly recognize the
merits and benefits of a broader approach, which enables the
development of enforcement priorities under limited resources, reduces
the need for further investigation by officers, and streamlines an
enforcement officer's review of whether a DACA recipient should be an
enforcement priority. According to the commenter, these benefits, which
are inherent to a broad scope and the ease with which DACA can be
applied, refute DHS's previous assertions that DACA is unwisely broad.
One commenter expressed strong support for the aspects of the
proposed rule that would maintain forbearance from removal. Another
stated that temporary forbearance of removal would not carry the same
protections as a more permanent forbearance, and that identifying DACA
recipients as generally a low priority for enforcement action does not
assuage fears that removal actions will nonetheless be taken as anxiety
and reservation remains about the lack of stability. While recognizing
that USCIS may not be able to address this directly, since permanent
congressional action is needed to at least in part address this
barrier, the commenter said that USCIS ``tak[ing] all measures
possible'' to expand the protections and rights of DACA recipients to
the extent permitted is in the best interests of USCIS resources;
local, State, and Federal economies; the well-being of U.S.
communities; and the individuals themselves.
One commenter, by contrast, suggested that individuals should only
be considered for forbearance when apprehended. The commenter stated
that this would not only release the pressure on USCIS' ``already
stressed system'' but also provide ``a more consistent application of
law and allow[ ] DHS to propose rules to guide ICE and CBP on
enforcement priorities.'' Another commenter stated that the proposed
rule prevents the removal of DACA recipients despite Congress having
dictated their eligibility for removal. This commenter also stated that
the proposed rule is not simply a ``non-enforcement policy'' or
prosecutorial discretion, but instead creates standardized proceedings
by which DHS solicits and reviews requests from eligible aliens,
effectively engaging in adjudications where the result is (likely) an
affirmative act of approval. Another commenter opposing the rule stated
there is a difference between forbearance from enforcement and actively
granting the benefits of employment authorization, travel permission,
and lawful presence. The commenter said that the logic that forbearance
from enforcement action requires grants of immigration benefits through
USCIS is flawed and unexplained.
Similarly, a commenter stated that the proposal to charge separate
fees for the deferred action request did not adequately address the
Texas ruling, which provided the agency an opportunity to modify the
policy only to include temporary deportation forbearance. The commenter
based this statement on concerns that DACA was housed within USCIS to
give noncitizens ``permission to work lawfully in the country despite
lacking a lawful immigration status.'' The commenter concluded that,
instead of exploring a ``true `forbearance' policy within one of the
enforcement components'' in accordance with the court's order, DHS's
proposal was ``not a good faith effort'' to adhere to the Federal
district court's ruling and would ``continue the inappropriate practice
of giving USCIS adjudicators . . . decision-making authority they do
not have under the law.'' One commenter questioned why ICE would agree
to continue, administratively close, or dismiss a DACA recipient's
removal proceeding without prejudice, stating: ``Clearly any removal
order or case logged against DACA recipients shall not be dismissed
without prejudice because unless the case is based on wrong facts, DACA
recipients did break immigration laws and it should be on their
records, not without prejudice.''
Some commenters suggested that additional policies should be
adopted for coordination among DHS subagencies to prevent the erosion
of DACA protections for recipients related to removal proceedings,
including:
Not issuing NTAs against DACA recipients or DACA-eligible
individuals unless and until USCIS terminates their DACA.
Exercising favorable prosecutorial discretion by joining
motions by DACA recipients or DACA-eligible individuals to reopen,
terminate, dismiss, or administratively close removal proceedings. The
commenter stated that these protections would be in line with May 2021
guidance issued by the ICE Office of the Principal Legal Advisor
recognizing the dismissal of cases of noncitizens likely to be granted
temporary or permanent relief or who present compelling humanitarian
factors, as well as recent decisions recognizing immigration judges'
authority to administratively close and terminate removal proceedings.
Adopting provisions to provide for cooperation among
components with respect to removal proceedings, ensuring consistent and
fair DACA decisions.
A commenter stated that it is costly for ICE to litigate removal
proceedings against DACA recipients and DACA-eligible individuals,
adding that the cost savings referenced at 86 FR 53794 would be
nullified if individual ICE officers issue NTAs or oppose, for example,
motions to administratively close removal proceedings for DACA
recipients and DACA-eligible individuals, and stating that the proposed
rule erroneously assumes ICE acts in a manner consistent with DACA
protections. Conversely, the commenter said, past practice demonstrated
that ICE and CBP have issued NTAs to DACA recipients who, per DACA
guidance and established definitions, are not enforcement priorities.
The commenter concluded that, without regulatory language directing DHS
components to act according to USCIS' DACA request determinations and
eligibility guidelines, recipients would continue to be subject to ICE
officers' de facto veto power over a DACA grant.
Another commenter stated that such additional policies would reduce
mental health harms to recipients facing uncertainty while promoting
efficiency and cost savings. The commenter said that the decreased
likelihood of mental health problems would allow DACA recipients to
flourish as members of society and of the U.S. workforce. Furthermore,
the commenter stated that future administrations could alter ICE
enforcement priorities without first going through notice-and-comment
rulemaking, thus leaving DACA recipients vulnerable to termination of
DACA with no due process protections. The commenter recommended that
DHS codify the above additional protections to promote efficiency and
due process and to adhere to the administration's directive to
``preserve and fortify'' DACA.
Response: DHS acknowledges the variety of views expressed, from
support for providing an official definition of deferred action, to
specific support for the definition proposed, to concern that the
specific definition is insufficient,

[[Page 53194]]

and to general opposition to forbearance from removal for DACA
recipients.
DHS agrees with commenters that the proposed deferred action
definition is consistent with longstanding legal and historical
practice. DHS acknowledges commenters' concern with the temporary
aspect of the definition of deferred action, but notes that DHS does
not have the authority to provide a permanent solution absent action by
Congress. DHS further acknowledges commenters' concern that the
definition of deferred action does not prohibit DHS from initiating
enforcement action; however, the purpose of deferred action is to
identify a person as a low priority for removal, rather than to
eliminate all possibility of enforcement action. DHS therefore intends
to maintain the ability to determine that an individual is no longer a
low priority for removal.
DHS disagrees with the suggestion that individuals should only be
considered for forbearance when apprehended, as this merely shifts
resource burdens within DHS, does not enable DHS to realize the full
potential of resource savings, as discussed in Section II.A.8, and
could create a perverse incentive for individuals to seek out
immigration encounters. As explained in the proposed rule at 86 FR
53752, the proposed framework would enable 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.
DHS further disagrees that utilizing a standard process to consider
requests for deferred action transforms DACA into more than
prosecutorial discretion. As noted by the commenter who encouraged DHS
to speak to the benefits of the approach taken here, this rule
structures the exercise of prosecutorial discretion in a proactive,
organized, and efficient manner. This approach allows for the exercise
of the Secretary's authority while providing for case-by-case
consideration and collection of fees to cover the cost of determining
whether the noncitizen is a high or low enforcement priority. Such a
structure has certain benefits, but does not make this rule any less of
an exercise in enforcement discretion.
DHS disagrees with the suggestion that the rule ``requires grants
of immigration benefits.'' Nothing in the Napolitano Memorandum, the
proposed rule, or this final rule requires DHS to grant immigration
benefits to recipients of deferred action. Rather, DHS, in the exercise
of its discretion and pursuant to underlying statutory authority, may
indicate its intention to forbear from removing certain individuals who
are low priorities for enforcement. Separately, DHS also may grant
ancillary benefits such as employment authorization, as well as provide
for limited circumstances in which DACA recipients will be considered
lawfully present, as explained more fully elsewhere in this rule. DHS
further incorporates here its points in the preamble to the NPRM at 86
FR 53756-53762 regarding DHS's view that employment authorization,
advance parole, and lawful presence may be provided in conjunction with
DACA's forbearance of removal. But DHS reiterates its view that
deferred action provides for temporary forbearance from removal without
``requir[ing]'' the conferral of other benefits.
DHS also disagrees with a commenter's characterization of the NPRM
as it relates to the Texas ruling. As DHS explained in the NPRM, DHS
proposed to unbundle the requests for deferred action and employment
authorization to provide flexibility and reduce cost barriers to
noncitizens who sought forbearance protections but did not need, want,
or prioritize employment authorization. Upon consideration of comments,
DHS has made changes to the rule to retain the existing requirement of
bundled deferred action and employment authorization requests, as
discussed in greater detail in Section II.C.2.c. DHS nonetheless
considers those elements to be severable from each other, in the event
that a court of competent jurisdiction disagrees with DHS and concludes
that any aspect of this rule is unlawful. DHS also disagrees with the
commenter's characterization of the rationale for vesting jurisdiction
to administer DACA within USCIS. To the contrary, in addition to the
reasons discussed in Section II.A.8, vesting jurisdiction within USCIS
fortifies DHS's prioritized approach to immigration and border
enforcement by allowing DHS to continue to realize the efficiency
benefits of the DACA policy, as discussed in this rule. Additionally,
in vesting jurisdiction with USCIS to exercise prosecutorial discretion
in the form of DACA, DHS also retains streamlined procedures for
terminating an individual's DACA and EAD, because the same agency that
exercised prosecutorial discretion as an initial matter would be
determining whether to terminate it, in consultation with immigration
enforcement components when necessary.\172\ USCIS also plays a crucial
role in safeguarding the lawful immigration system of the United
States, including by issuing Form I-862, Notice to Appear, to commence
removal proceedings in some circumstances.\173\
---------------------------------------------------------------------------

\172\ See 86 FR 53752.
\173\ See, e.g., 8 CFR 239.1(a)(18) through (20) (authorizing
``Supervisory immigration services officers,'' ``Supervisory
immigration officers,'' and ``Supervisory asylum officers,''
respectively, to issue NTAs).
---------------------------------------------------------------------------

DHS acknowledges commenters' suggestions that the rule include
provisions relating to other DHS immigration components' enforcement
actions with respect to DACA recipients or individuals who meet the
DACA criteria. However, DHS believes that direction for CBP and ICE
with respect to their handling of DACA recipients, beyond that which
was contained in the NPRM, is most appropriately left for subregulatory
guidance. Finally, DHS notes that the commenter suggesting that DACA
recipients' removal proceedings should not be continued,
administratively closed, or dismissed ``without prejudice''
misunderstands the meaning of ``without prejudice.'' In the removal
proceedings context, an action taken ``without prejudice'' means
without prejudice to further action (i.e., that the recommencement of
removal proceedings in the future will not be barred by the judicial
doctrines of res judicata or collateral estoppel).
Accordingly, DHS will not be making any changes to 8 CFR
236.21(c)(1) in response to public comments.
2. Employment Authorization (Sec. Sec. 236.21(c)(2) and
274a.12(c)(33))
a. General Comments on Employment Authorization
General Support for Work Authorization for DACA Recipients
Comment: Some commenters expressed support for strengthening and
protecting employment authorization as a key part of the DACA policy.
Multiple commenters discussed the benefits of employment authorization
including self-reliance; access to health insurance, education,
housing, and living needs; career advancement; safe working conditions;
fair wages and narrowing of the wage gap between employment-authorized
workers and workers without employment authorization; ability to obtain
forms of identification; and the development, as well as the retention,
of skilled workers in the community, especially frontline workers
during the COVID-19 pandemic. (One study found more than 200,000 DACA
recipients working in occupations deemed by DHS as ``essential critical

[[Page 53195]]

infrastructure workers.'') \174\ Commenters cited a 2020 survey of DACA
recipients that found that nearly 90 percent of DACA recipients
surveyed were employed; 83.7 percent of respondents reported that
having work authorization related to DACA helped them become
financially independent; and 86.4 percent reported that their increased
earnings helped pay for tuition.\175\
---------------------------------------------------------------------------

\174\ See Svajlenka (2020).
\175\ See Wong (2020).
---------------------------------------------------------------------------

Considering such personal and societal benefits, a commenter stated
that it had significant interests in preventing the disruption of the
employment relationship with its DACA-recipient personnel. The
commenter stated that it employs 500 DACA beneficiaries across every
division in the company, across 38 States, and in all regions of the
country. Many commenters urged DHS to ensure that deferred action and
employment authorization remain connected in the rule, and that DACA
recipients' ability to request EADs is protected. Other commenters
expressed support for including employment authorization in the
proposed rule but commented that the proposed disaggregation of other
benefits from enforcement forbearance would not make it any less
important. Some commenters stated that DACA-eligible individuals should
be granted work authorization, or the opportunity to work, because they
deserve the opportunity to support themselves financially, and because
they want to make, and are capable of making, important economic and
labor contributions to society. A commenter stated that more should be
done to minimize barriers to employment authorization. Another
commenter recommended that DHS and the Federal Government continue to
strongly defend the ability of DACA recipients to apply for work
authorization and to reach their full potential. A commenter stressed
that the proposed rule allows local communities to continue to benefit
from the important contributions of the DACA workforce, including in
frontline healthcare, law enforcement, social services, land-use
planning, teaching, and road repair.
Response: DHS agrees employment authorization is an important
component of the DACA policy with myriad positive impacts on
recipients' families and communities. For one, employment authorization
enables DACA recipients to exit the shadow economy of unauthorized
employment, dramatically reducing the risk of exploitation by
unscrupulous employers. Maintaining DACA recipients' ability to work
lawfully while in the United States is an important component of DHS's
broader initiative to preserve and fortify the DACA policy. DHS
appreciates and agrees with commenters' recognition of DACA recipients'
contributions to their communities. DHS agrees, as stated elsewhere in
the NPRM and this preamble, that DACA recipients, on balance,
overwhelmingly make positive contributions to this nation. DHS also
agrees that DACA recipients' ability lawfully to work while in the
United States is beneficial to their economic and psychological well-
being.
In this regard, DHS emphasizes that self-reliance is beneficial not
only to the social and economic prosperity of recipients of deferred
action under the DACA policy, but also to the well-being of those
individuals' families and communities, and to the workforce more
broadly. Work authorization enables DACA recipients lawfully to support
themselves and their families instead of risking potential exploitation
in the shadow economy. As a commenter pointed out, companies have
invested substantial resources in their DACA-recipient employees, and
DHS agrees DACA recipients are not the only population that benefits
from this rule; this rule also serves businesses' substantial reliance
interest in the continued employment of employees in whom they have
made significant tangible and intangible investments. Furthermore, a
2020 survey indicates that employment authorization for DACA recipients
supports business creation, indicating that 6.1 percent of DACA
recipients surveyed reported that they started their own businesses
after receiving DACA, and that among respondents 25 years old and
older, this increased to 7 percent.\176\ Moreover, work authorization
allows individuals to leave the shadow economy and work on the books to
provide for their families, thereby reducing the risk of exploitation
by unscrupulous employers and distortion in our labor markets. Work
authorization addresses practical concerns that could otherwise result
from a decision solely to grant temporary forbearance from removal, and
DHS therefore believes that it is appropriate to allow DACA recipients
to work in conformity with its authority at INA sec. 274a(h)(3), 8
U.S.C. 1324a(h)(3).
---------------------------------------------------------------------------

\176\ Wong, et al., New DHS Policy Threatens to Undo Gains Made
by DACA Recipients, Center for American Progress (Oct. 5, 2020),
https://www.americanprogress.org/issues/immigration/news/2020/10/05/491017/new-dhs-policy-threatens-undo-gains-made-daca-recipients.
---------------------------------------------------------------------------

Employment authorization for DACA recipients also helps to prevent
their need for public assistance to the extent such limited assistance
is available to them. Although DACA recipients do not constitute
``qualified alien[s]'' for purposes of eligibility for most Federal
public benefits under PRWORA,\177\ certain excepted emergency, in-kind,
and other public benefits do remain available to them.\178\ In
addition, a State may affirmatively provide State and local public
benefits to noncitizens who are not lawfully present in the United
States if the State passes such a law after August 22, 1996.\179\
Several States have enacted such laws.\180\ Therefore, if DACA
recipients were to lack a means to earn their own living, they would be
more likely to utilize the limited forms of public assistance available
to them.
---------------------------------------------------------------------------

\177\ See 8 U.S.C. 1611(a) et seq.; 8 U.S.C. 1641(b) (providing
definition of ``qualified alien'').
\178\ See 8 U.S.C. 1611(b)(B) (providing for ``[s]hort-term,
non-cash, in-kind emergency disaster relief'' to non-qualified
aliens); 8 U.S.C. 1611(b)(1)(D) (providing non-qualified aliens with
access to ``[p]rograms, services, or assistance (such as soup
kitchens, crisis counseling and intervention, and short-term
shelter)'' that ``deliver in-kind services at the community level,
including through public or private nonprofit agencies''; ``do not
condition the provision of assistance, the amount of assistance
provided, or the cost of assistance provided on the individual
recipient's income or resources''; and ``are necessary for the
protection of life or safety'').
\179\ See 8 U.S.C. 1621(d). In addition, the general limitations
PRWORA places on noncitizens' eligibility for State and local public
benefits do not apply to certain emergency, in-kind, immunization,
and other assistance. See 8 U.S.C. 1621(b).
\180\ See, e.g., Cal. Welf. & Inst. Code Sec. 14007.8(a)(1);
130 Mass. Reg. 505.006(B); NY Soc. Serv. L. Sec. 122; Or. Rev.
Stat. Sec. 414.231; Wash. Admin. Code 182-503-0535(2)(e); DC Code
Sec. 1-307.03.
---------------------------------------------------------------------------

DHS appreciates one commenter's desire to see even more done to
minimize barriers to DACA recipients' employment. This commenter
advocated that DHS lower the application fees, shorten the application
processing backlog, guarantee work authorization, and extend the
duration of work authorization. However, as set forth elsewhere in this
rule, DHS believes the current application fees are appropriate for the
time being. DHS also reiterates the limits of this rulemaking, which,
as discussed elsewhere in this preamble in more detail, focuses on
preserving and fortifying the policy as set forth in the Napolitano
Memorandum.
Positive Impacts on Universities and Healthcare Systems
Comment: Citing research, several commenters described DACA
recipients' positive impact on their universities and

[[Page 53196]]

communities. Commenters stated that work authorization is critical to
DACA recipients' ability to make such positive contributions. A
university described the academic contributions of DACA recipients. The
university also cited the proposed rule's statement on the number of
DACA recipients in healthcare to underscore the need for the rule and
work authorization. The commenter further remarked that work
authorization for DACA recipients allows them to engage more deeply
with their university's curriculum, campus, and community. Noting the
successful academic and professional careers of DACA recipient alumni,
a commenter stated that work authorization is critical to DACA
recipients' ability to contribute on and off campus, warning that the
lack of work authorization often discourages individuals from pursuing
educational growth. The commenter also remarked that it relies on DACA
to retain valuable employees, noting its university system employs
around 466 non-student DACA recipients. A group of commenters similarly
pointed out DACA recipients' impact on institutions of higher
education, citing several sources to support their position that DACA
recipients enrich school environments. The commenters stated employment
authorization granted after a DACA grant allows students to pursue
higher education and other improved educational and economic outcomes.
The commenters added that many DACA recipients have gone on to work and
provide valuable services (such as serving in educational positions or
healthcare posts) in the communities associated with their educational
institutions, noting DACA recipients possess valuable skills--like
foreign language fluency--that benefit employers.
Citing references, a commenter discussed in detail the current and
future need for medical physicians and how DACA work permits allow
medical schools to accept these noncitizens, enabling the number of
matriculants with DACA to steadily grow since 2013. This commenter
stated that over the course of one year, DACA-recipient physicians will
collectively care for 700,000 to 2.1 million patients, totaling more
than 5.1 million U.S. patients over the course of their careers. The
commenter concluded that the administration should take action to
expand eligibility for Federal student aid and education loans to DACA
recipients to enable these individuals to pay for the incredibly high
costs of medical education. Another commenter stated that the current
healthcare staffing gaps associated with the COVID-19 pandemic could be
filled by DACA recipients. The commenter cited research stating that
8,600 healthcare workers in California have DACA. The commenter
concluded that DACA and work authorization would help to adequately
address the current healthcare staffing shortage, which the commenter
warned could last until 2026.
Response: DHS appreciates the commenters' recognition of DACA
recipients' academic and professional contributions to their
institutions and communities at large. DHS agrees that work
authorization is critical to DACA recipients unlocking their full
potential. By helping to lessen the financial burden of pursing higher
education, DHS agrees that work authorization makes available to DACA
recipients many educational and professional opportunities that
otherwise would have remained out of reach.
DHS appreciates the comment citing statistics about the volume of
care provided by DACA-recipient physicians. DHS deeply appreciates
these contributions. DHS recognizes that DACA recipients fill critical
roles in the healthcare field and the high cost of entry into this
field, especially for physicians. At the same time, DHS lacks authority
to alter DACA recipients' statutory ineligibility for Federal student
aid through rulemaking. Comments concerning DACA recipients'
eligibility for benefits not administered by DHS are also addressed
elsewhere in this preamble. Still, DHS remains committed to preserving
and fortifying the policies upon which DACA recipients and their
families, employers, schools, and communities have come to rely.
``Economic Necessity'' and Work Authorization
Comment: A commenter stated that the proposed requirement to prove
economic need appeared intentionally vague and could leave thousands of
undocumented students without a form of income. Some commenters
requested that the regulation provide clear guidelines and suggested
that DHS limit discretion in the determination of ``economic
necessity'' for all applicants. A commenter warned that ``economic
necessity'' does not negate a student's expenses of pursuing an
education (e.g., tuition, living costs, groceries, textbooks, caring
for family members) and said the term must acknowledge that higher
education is vital for community and economic health. A commenter asked
DHS to clarify that students' circumstances will be taken into account
in determining ``economic necessity,'' citing education-related
expenses such as internet and computers required during the COVID-19
pandemic. Another commenter likewise suggested DHS should further
clarify the definition of economic necessity in the DACA context while
providing language that acknowledges the ``reality'' that most DACA
requestors have an economic necessity to work. The commenter reasoned
work authorization is critical to DACA recipients' entry into the labor
market and their ability to support themselves and their families. A
commenter similarly suggested DHS establish a rebuttable presumption
that DACA recipients have an economic necessity to work, stating such a
presumption would simplify the application and adjudication process
because the need to work to support oneself is very often self-evident.
A commenter expressed opposition to the proposal's provision
granting work authorization to DACA recipients who establish an
arbitrary economic need and suggested instead that all DACA recipients
receive work authorization under the proposal. A few other commenters
likewise opposed the economic need requirement for employment
authorization. A commenter stated that requiring economic need imposes
assumptions and limitations on DACA recipients' choices and growth. A
commenter recommended the statement of economic need be eliminated, as
EADs often are used as a primary form of identification for
noncitizens, aside from their intended purpose. Without an EAD, the
commenter stated, a noncitizen cannot obtain a Social Security number
or State identification, which are necessary to conduct activities of
daily life.
One commenter went further, saying DHS should prioritize a DACA
framework that automatically grants work permit benefits alongside
``deportation protection.'' A commenter likewise recommended work
authorization ``continue to be granted automatically and coincide with
granting DACA.'' Other commenters similarly suggested automatic,
permanent, or guaranteed work authorization grants alongside deferred
action.
Numerous commenters added that USCIS verifies underlying status
with a Form I-821D approval, which could be sufficient for I-9
authorization. They concluded the I-765 adjudication is an unnecessary
use of the agency's time and resources that creates significant

[[Page 53197]]

repercussions due to delays in adjudication.
Response: DHS thanks commenters for their input on the economic
necessity component of this rulemaking. Some commenters characterized
the requirement to prove economic need as a new component of a DACA
request. However, the economic need requirement is not new to DACA or
to employment authorization for deferred action recipients more
broadly. It has been part of the DACA policy since 2012 and the
deferred action employment authorization regulation since 1987.\181\
DACA recipients, like all other deferred action recipients, fall within
the categories of noncitizens for whom employment authorization is
discretionary, not mandatory as it is for certain categories where
Congress has made employment authorization incident to the noncitizen's
lawful immigration status.\182\ The rule makes no change to that
longstanding policy for deferred action recipients, including for DACA
recipients.\183\ As explained in the NPRM, 8 CFR 274a.12(c)(14) has,
for decades, authorized deferred action recipients to apply for and
receive an EAD if they establish economic necessity. The NPRM also
explains that this rule does not change the eligibility of DACA
recipients to apply for work authorization or alter the existing
general rule that they must establish economic necessity.
---------------------------------------------------------------------------

\181\ Control of Employment of Aliens, 52 FR 16216, 16228 (May
1, 1987). See also Instructions to Form I-765, Application for
Employment Authorization (revised Jan. 19, 2011), at 5 (instructions
for form version in use at time DACA implemented and including
requirement for deferred action recipients to file Form I-765 with
authorization of deferred action and evidence of economic necessity
for EAD); ICR Reference No. 201208-1615-002, Instructions to Form I-
765, Application for Employment Authorization (revised Aug. 6,
2014), at 5 (continuing requirement for economic necessity for EAD
for deferred action recipients, including specific reference to DACA
recipients, and requiring revised financial worksheet, Form I-765WS
(Form I-765 Worksheet) (Aug. 6, 2014)). Proof of economic necessity
for an EAD has continued to date for deferred action recipients,
including for those with DACA. See Instructions to Form I-765,
Application for Employment Authorization (revised Aug. 25, 2020), at
16-17.
\182\ See 8 CFR 274a.12(c) (categories of noncitizens for whom
employment authorization may be provided in DHS's discretion,
including for deferred action recipients under paragraph (c)(14)).
But see 8 CFR 274a.12(a) (categories of noncitizens for whom
employment authorization is ``incident to status,'' such as asylees,
refugees, certain nonimmigrants, and others).
\183\ As explained both in the NPRM and in this rule, the
Attorney General and later the Secretary, have for decades
interpreted their statutory authority to ``establish such
regulations . . . and perform such other acts as he deems
necessary'' for administering the INA (now vested in the Secretary)
as allowing that officer to grant discretionary work authorization
to recipients of deferred action. See 86 FR 53757. Congress
confirmed this authority in INA sec. 274a(h)(3), 8 U.S.C.
1324a(h)(3), which expressly contemplates a framework in which the
Attorney General (now the Secretary) may authorize certain classes
of noncitizens for employment. This interpretation has stood
undisturbed for over 30 years.
---------------------------------------------------------------------------

DHS acknowledges some commenters' calls for DHS to eliminate the
economic necessity requirement altogether, along with other commenters'
suggestion to automatically grant employment authorization to DACA
recipients alongside deferred action. DHS appreciates commenters'
concern about DACA recipients' continued access to employment
authorization under this rule. DACA is a discretionary policy, however,
and DHS has determined that, as such, employment authorization also
should remain discretionary and require a showing of economic need as
has been the case since the beginning of the DACA policy in 2012, and
in keeping with pre-existing regulatory requirements for deferred
action recipients seeking employment authorization. To automatically
grant employment authorization to every DACA recipient would mean that
such authorization would effectively be ``incident to status,'' as it
is for certain types of lawful immigration status, such as refugee,
asylum, and TPS.\184\ As previously discussed, DACA is fundamentally
not a lawful immigration status; thus, DHS believes that making
employment authorization effectively automatic upon a DACA approval
would not be appropriate. Moreover, DHS believes that the general rule
requiring DACA recipients to show economic need before they may receive
discretionary employment authorization has proved workable in the past
and remains workable today. It also bears noting that most recipients
of deferred action under the DACA policy also have been approved for
employment authorization based on economic need. At this time, DHS
declines to change the requirement for DACA recipients relative to the
general rule for other deferred action recipients or to otherwise
disturb the longstanding rule.
---------------------------------------------------------------------------

\184\ See 8 CFR 274a12(a)(3), (8), and (12).
---------------------------------------------------------------------------

DHS thanks commenters for their suggestions pertaining to expanding
on the concept of economic necessity in the final rule to expressly
recognize the costs of pursuing higher education. However, DHS declines
to write such granularity into the final rule. This rule continues
historical practice by basing the economic necessity inquiry on the
Federal Poverty Guidelines and existing regulations at 8 CFR
274a.12(e). That regulation broadly provides an applicant's assets,
income, and expenses all may constitute evidence of economic need to
work. DHS believes that this regulation--particularly its provision for
consideration of expenses--provides adjudicators with sufficient leeway
to consider the costs attendant to pursuing higher education when
determining an applicant's economic need to work. And while it may be
true that DACA requestors' economic necessity to work is often obvious,
DHS maintains its position that the current employment authorization
framework is sufficient to capture all the types of costs and expenses,
including those for higher education, that DACA requestors and
recipients may have and that may support their economic need to work.
Moreover, DHS's decision whether to grant discretionary employment
authorization entails more than verifying the requestor's identity
through adjudication of the Form I-821D. As explained above, requestors
must establish economic necessity to work. DHS therefore disagrees with
the commenter that adjudicating the Form I-765 and accompanying Form I-
765WS is an unnecessary use of DHS's time and resources. Rather, those
adjudications ensure applicants establish the requisite economic need
to work. Because the current framework on economic necessity and work
authorization has not proven unworkable over DACA's 10-year lifespan,
DHS elects to maintain the status quo on this point.
Employment Authorization for DACA Recipients Versus Visa Categories
Comment: A commenter suggested that instead of spending time
pursuing a rule for DACA, DHS should have drafted rules governing
employment authorization for F-1 OPT students waiting for H-1B visas or
establishing an improved process to ensure H-1B visas are used within a
fiscal year. Another commenter similarly stated that DHS should
prioritize action for F-1 students who do not win the H-1B lottery or
H-4 dependents who wish to support their families, critiquing the
proposal for failing to explain why DACA recipients deserve employment
authorization.
Response: DHS acknowledges that members of the DACA population are
not the only category of noncitizens with pressing matters in need of
agency attention and resources. However, the DACA policy has
distinctive functions and serves distinctive needs (including
protection of reliance interests). In addition, the President has
expressly directed DHS to preserve and fortify the DACA policy, and
that is the subject of this rulemaking. Because DACA recipients
necessarily came to the

[[Page 53198]]

United States as children, and because of the substantial reliance
interests that have developed over a period of time, DACA recipients
occupy a unique space in the world of noncitizens in need of work
authorization. To be sure, DHS acknowledges the circumstances of the
populations that the commenter identifies and is taking steps to
address them where appropriate, lawful, and feasible.
Other Comments on Work Authorization
Comment: Expressing support for DACA, a commenter remarked that
recipients with more qualifications should receive better benefits,
such as a stronger work permit. Similarly, a commenter suggested that
DHS should recommend that the Department of Labor place DACA recipients
with science, technology, engineering, and mathematics (STEM) degrees
onto Schedule A so that highly educated DACA recipients may self-
petition for permanent residence by filing a Form I-140.
A commenter stated that, should DACA recipients receive the ability
to seek relief through a future longer term but nonrenewable work
permit program, their ability to re-request deferred action under DACA
should be protected. The commenter further reasoned, if a recipient
obtained alternate relief through a longer-term work permit in the
future, and Congress failed to pass a pathway to citizenship during the
relief period, it would be important for those who did not renew their
DACA request in that period to be allowed to request DACA again.
Response: Employment authorization for a DACA recipient is based
upon the DACA recipient's eligibility for deferred action and
demonstrating an economic necessity, as it is for all other deferred
action recipients, and not on any other status or authorization to be
in the United States. There is no ``stronger work permit'' that DHS
could offer to DACA recipients solely based on their deferred action.
Rather, when a DACA recipient is granted employment authorization, the
DACA recipient is then generally eligible for employment anywhere in
the United States and with any legal employer for the duration of the
validity period of the employment authorization document without
additional restriction.\185\ DHS also does not have the authority to
place DACA recipients on the Department of Labor's Schedule A. Thus,
while some DACA recipients may have different skill sets, levels of
education, or technical training, it is ultimately DACA recipients'
eligibility for deferred action and economic necessity that make them
eligible for employment authorization, and for the reasons explained
and discussed throughout this preamble DHS is not changing the
eligibility requirements for consideration for deferred action under
DACA.
---------------------------------------------------------------------------

\185\ See INA sec. 212(n)(4)(E), 8 U.S.C. 1182(n)(4)(E); 8 CFR
274a.12(c).
---------------------------------------------------------------------------

b. Authority To Provide Employment Authorization To Deferred Action
Recipients
DHS Lacks Authority To Grant Work Authorization
Comment: A commenter stated, ``DHS does not have the authority to
grant employment authorization documents . . . to aliens [for] whom the
INA does not provide such benefits or for whom the INA does not
expressly grant the Secretary discretionary authority, such as is the
case with asylum-based EADs.'' The commenter stated Congress has
established an extensive scheme for the admission of immigrant and
nonimmigrant foreign workers into the United States. The commenter went
on to write that Congress has not authorized DHS to create employment
eligibility for classes of noncitizens not already provided by law,
reasoning that designating new classes of employment-eligible
populations undermines the deliberate scheme created by Congress, which
contemplates intricate social, economic, and foreign policy
considerations beyond the scope of DHS's interests and mission. The
commenter stated INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3) does not
provide the authority that DHS claims because that section is ``merely
definitional'' and does not itself grant the Secretary any authority.
Citing the COVID-19 pandemic and inflation, the commenter wrote the
U.S. Government has both a moral and legal obligation to ensure that
U.S. workers of all backgrounds are first in line for jobs as the
economy reopens and are not further harmed by unfair competition and
wage suppression.
A commenter remarked that the proposal violates the provision at
INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibiting DHS from providing
work authorization to an ``alien,'' citing the statutory language. The
commenter further stated that the interpretation cited in the proposed
rule, 86 FR 53758, does not reflect the actual meaning of the statute,
and that any examination of legislative history is irrelevant when the
statutory language is clear. Ultimately, the commenter opposed the
proposed rule, stating that it is inconsistent with the ``INA's
unambiguously specific and intricate provisions'' regarding immigration
status and work authorization.
Response: DHS disagrees with commenters' position that DHS lacks
authority to grant employment authorization to DACA recipients. The
text of the relevant statute, understood in light of the relevant
historical context, confers that authority on DHS. As the NPRM explains
in detail, since at least the 1970s, the INS and later DHS have made
employment authorization available for noncitizens without lawful
immigration status but who receive deferred action or certain other
forms of forbearance from removal.\186\ As noted in the NPRM, INA sec.
274a(h)(3), 8 U.S.C. 1324a(h)(3), enacted in 1986 in IRCA, defines an
``unauthorized alien'' for purposes of employment authorization as a
noncitizen who ``is not at that time either . . . an alien lawfully
admitted for permanent residence, or . . . authorized to be so employed
by this chapter or by the Attorney General'' (now the Secretary of
Homeland Security). This provision plainly recognizes that the
Secretary may authorize employers to employ certain removable persons,
endorsing the longstanding, pre-IRCA agency practice. And even before
Congress enacted section 274a(h)(3), INS and Congress had consistently
interpreted the broad authority in INA sec. 103(a), 8 U.S.C. 1103(a),
to allow the Secretary to grant work authorization. That section
charges the Attorney General and, since 2003, the Secretary, with ``the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens,'' and
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'' the Secretary's authority under the INA. That provision
also plainly allows for the granting of discretionary employment
authorization to certain noncitizens even when no additional statute
expressly so provides.\187\
---------------------------------------------------------------------------

\186\ See 86 FR 53737-53760.
\187\ See also id. at 53757 and n.190.
---------------------------------------------------------------------------

DHS finds the commenters' arguments to the contrary unpersuasive.
One commenter disagreed with DHS's interpretation that INA sec.
274a(h)(3), 8 U.S.C. 1324a(h)(3), which defines an ``unauthorized
alien'' for purposes of employment authorization as a noncitizen who
``is not at that time either (A) an alien lawfully admitted for
permanent residence, or (B) authorized to be so employed by this
chapter or by

[[Page 53199]]

the Attorney General.'' DHS has pointed out that this definition
demonstrates that Congress recognized and accepted the former INS's
long history of providing employment authorization to individuals under
the general section 103 authority in the INA. The commenter stated that
the section is ``merely definitional.'' But the commenter's reading of
that provision fails to account for the importance of the definition of
``unauthorized alien'' in the statutory scheme and its extensive
regulatory and legislative history.
In the decades leading up to IRCA, the INS frequently stated its
view of its authority to grant work authorization to certain classes of
noncitizens, or restrict the work authorization of the same.\188\ The
INS and later DHS have also regularly exercised that authority without
congressional intervention.\189\ In fact, Congress expressly
acknowledged the Attorney General's--and now the Secretary's--authority
to grant employment authorization to certain classes of noncitizens in
1974 when it passed the Farm Labor Contractor Registration Act
Amendments, which in pertinent part made it unlawful for farm labor
contractors knowingly to employ any ``alien not lawfully admitted for
permanent residence, or who has not been authorized by the Attorney
General to accept employment.'' \190\ INS sought to codify its work
authorization practice in a 1981 final rule permitting discretionary
work authorization for certain 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.\191\ In the
proposed rule that preceded these changes, the INS explained 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\
---------------------------------------------------------------------------

\188\ See, e.g., Aliens and Nationality, 17 FR 11469, 11489
(Dec. 19, 1952) (codified at 8 CFR 214.2(c) (1952)) (prohibiting a
nonimmigrant in the United States from engaging in ``any employment
or activity inconsistent with and not essential to the status under
which he is in the United States unless such employment or activity
has first been authorized by the district director or the officer in
charge having administrative jurisdiction over the alien's place of
temporary residence in the United States.'' (emphasis added));
Aliens and Nationality, 22 FR 9765, 9782 (Dec. 6, 1957) (codified at
8 CFR 214.2(c) (1957)) (same). See also generally Sam Bernsen,
Employment Rights of Aliens Under the Immigration Laws, In Defense
of the Alien, Vol. 2 (1979), at 21, 32-33 (collecting former INS
Operating Instructions (OI) on employment authorization), reprinted
in https://www.jstor.org/stable/23142996; Geoffrey Heeren, The
Immigrant Right to Work, 31 Georgetown Immigr. L. J. 243 (2017). In
addition, as noted in the NPRM, 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).
\189\ See, e.g., 17 FR 11469; Matter of S-, 8 I&N Dec. 574, 575
(BIA 1960) (noting that ``the Immigration Service has issued printed
material putting nonimmigrant aliens on notice that they may not
engage in employment without permission of the Immigration Service
Form I-358, which is routinely given to all entering nonimmigrant
aliens.'' (cleaned up)).
\190\ See Public Law 93-518 (Dec. 7, 1974).
\191\ See Employment Authorization to Aliens in the United
States, 46 FR 25079 (May 5, 1981).
\192\ 45 FR 19563 (Mar. 26, 1980). The INS also stated that the
Attorney General's authority to authorize employment of aliens in
the United States was ``a necessary incident of his authority to
administer the Act'' and had recently been ``specifically recognized
by the Congress in the enactment of section 6 of [Pub. L. 94-571].''
Id. As described by the INS, that provision ``amended section 245(c)
of the Act to bar from adjustment of status any alien (other than an
immediate relative of a United States citizen) who after January 1,
1977 engages in unauthorized employment prior to filing an
application for adjustment of status.'' Id.
---------------------------------------------------------------------------

Congress then passed IRCA in 1986, making it unlawful for the first
time for employers knowingly to hire an ``unauthorized alien (as
defined in subsection (h)(3))'' for employment. 8 U.S.C. 1324a(a).
Subsection (h)(3) defines an ``unauthorized alien'' in part as an
individual whom the Attorney General has not authorized for employment.
Thus, even though INA sec. 274a(h)(3) is ``definitional'' as one
commenter observes, it is not meaningless or unimportant. To the
contrary, that definition is part of IRCA and defines the scope of
IRCA's core substantive provision that makes it unlawful to hire ``an
unauthorized alien (as defined in subsection (h)(3)).'' 8 U.S.C.
1324a(a) (emphasis added). As INS explained in IRCA's implementing
regulations:

[T]he 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.\193\
---------------------------------------------------------------------------

\193\ Employment Authorization; Classes of Aliens Eligible, 52
FR 46093 (Dec. 4, 1987).

In other words, Congress was well aware of INS's view of its
authority to grant work authorization when it passed IRCA, and chose
expressly to acknowledge INS's practice on this point, ratifying it in
the most comprehensive immigration legislation in a generation.
For this same reason, DHS disagrees with the commenter's assertion
that Congress' expressly authorizing certain classes of noncitizens for
employment in the years since IRCA's enactment negatively implicates
DHS's ancillary and longstanding authority to grant discretionary work
authorization. This assertion depends on a misuse of the ``expressio
unius est exclusio alterius'' canon. The express authorization was
supplemental to the general authority that already existed, and not in
derogation of it or contradictory to it. As explained above, Congress
has had ample opportunity for input through legislation on INS's
authority to grant work authorization over the years. But in enacting
IRCA Congress ratified the Attorney General's (now the Secretary's)
authority to grant work authorization to various classes of
noncitizens. Nor did Congress disturb this text or alter this authority
in any way in other watershed immigration legislation since that time,
including the Immigration Act of 1990, the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, or the REAL ID Act of 2005.
DHS acknowledges that in prior litigation, the agency took the
position that INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3) did not
authorize the Secretary to grant work authorization to recipients of
deferred action under the DACA policy.\194\ However, after careful
consideration, DHS now disagrees with that position. For the reasons
explained throughout this preamble and the NPRM, Congress clearly
ratified the Attorney General's longstanding authority to authorize
classes of noncitizens for employment through the enactment of INA sec.
274a(h)(3), 8 U.S.C. 1324a(h)(3). DHS accordingly disagrees with the
commenter that it lacks authority to provide EADs to recipients of
deferred action under the DACA policy who establish an economic need to
work.
---------------------------------------------------------------------------

\194\ See Reply Br. for Pet'r at 19, U.S. Dep't of Homeland
Security, et al. v. Regents of the Univ. of Cal., 140 S. Ct. 1891
(2020) (No. 18-587).
---------------------------------------------------------------------------

DHS acknowledges the commenter's concern for citizen workers during
this period of particular economic uncertainty, but DHS disagrees that
this rule would result in material adverse effects on such workers. As
explained in greater detail elsewhere in this rule,

[[Page 53200]]

including the RIA at Section III.A.4.d, the relationship between DACA
recipients and U.S. workers is more complicated. For instance, the data
consistently indicate that introducing skilled noncitizen workers to
the workforce positively impacts the wages and employment of both
college-educated and non-college-educated citizens, suggesting that
DACA recipient workers falling into this category would generally be
complementary to, rather than competitive with, U.S. citizen workers.
DHS likewise disagrees with the other commenter's position that INA
sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibits DHS from granting work
authorization. DHS first notes INA sec. 236 governs the apprehension
and detention of noncitizens pending removal proceedings. The commenter
seeks to overextend that statute's reach, for there is no indication
that Congress intended it to apply beyond the context of removal
proceedings. In any event, as explained in the NPRM, DHS interprets the
clause of INA sec. 236(a)(3) stating that DHS may not provide work
authorization to a noncitizen in removal proceedings ``unless the alien
. . . otherwise would (without regard to removal proceedings) be
provided such authorization'' to represent Congress' further
recognition that noncitizens who are not also permanent residents may
nevertheless receive work authorization.\195\ That clause (added in
1996) preserves the Secretary's authority to grant work authorization
to deferred action recipients, as the Secretary had done pursuant to
preexisting regulation, 8 CFR 274a.12(c)(14) (1995). DHS maintains its
position that because Congress expressly referenced situations in which
a noncitizen ``otherwise'' would receive work authorization, Congress
preserved DHS's authority to grant work authorization to categories of
noncitizens other than lawful permanent residents, including to
deferred action recipients, consistent with DHS's longstanding
interpretation of its statutory authority. Any other reading renders
that statutory text superfluous.
---------------------------------------------------------------------------

\195\ 86 FR 53759.
---------------------------------------------------------------------------

DHS has further considered the district and appellate court
opinions questioning DHS's authority to provide employment
authorizations to DAPA or DACA recipients, and respectfully disagrees
with those decisions for the reasons explained in the proposed
rule.\196\
---------------------------------------------------------------------------

\196\ 86 FR 53759-53760.
---------------------------------------------------------------------------

DHS Has Authority To Grant Work Authorization
Comment: Many commenters stated that the Department's statutory
authority to provide work authorization to DACA recipients is clear,
citing longstanding regulations and law to support their claim: INA
sec. 103(a), INA sec. 274a(h)(3), and 8 CFR 274a.12(c)(9), (10), and
(14). Citing INA sec. 274a(h)(3), one commenter stated that Congress
delegated authority to DHS to administer and enforce the INA, saying
the proposed rule is consistent with DHS's legal authority to grant
work authorization to those ``who benefit from prosecutorial
discretion.'' Other commenters similarly agreed that granting work
authorization does not ``undermine'' the INA or IRCA, contrary to the
district court's recent holding in Texas. A commenter also reasoned
that if the agency did not provide employment authorization, then the
agency's action would be arbitrary and capricious for failing to
consider the third parties impacted by the loss of employment
authorization. Citing INA sec. 274a(h)(3), a commenter warned
``undercutting'' the clear statutory and regulatory authority the
Department has to grant employment authorization would have far-
reaching impacts beyond DACA to many other vulnerable groups of
migrants. Another commenter likewise applauded DHS's ``thorough''
explanation of its discretionary authority to grant deferred action and
work authorization to certain individuals. Several commenters urged the
Department to add a DACA-specific provision to longstanding work
authorization regulations to clarify and reinforce the policy for DACA
recipients.
Several other commenters expressed concern with the separation of
work authorization and deferred action, writing that access to deferred
action and work authorization are not separate in their view. The
commenters stated that the ability for DACA recipients to live with
their families and communities without fear of deportation is
synonymous with their ability to work legally and contribute to their
families' and communities' economic well-being. The commenters
acknowledged State legislators cannot grant work authorization to DACA
recipients and instead must rely on DHS's discretion to do so.
Response: DHS agrees with commenters that it has authority to grant
work authorization to DACA recipients attendant to their grant of
deferred action. DHS agrees the pertinent regulatory and legislative
context indicates Congress' consistent recognition and ratification of
this authority.\197\ With respect to the comment suggesting that
eliminating employment authorization for DACA recipients would be
arbitrary and capricious, DHS takes the commenter's point regarding the
benefits of employment authorization and existing reliance interests,
but notes that DHS has not eliminated employment authorization from the
policy. DHS agrees with commenters that DACA recipients and their
communities would be negatively affected if discretionary employment
authorization upon demonstration of economic necessity were eliminated
from the DACA policy. To this end, DHS has included a DACA-specific EAD
provision in this rule at new 8 CFR 274a.12(c)(33).
---------------------------------------------------------------------------

\197\ See the preamble to the NPRM at 86 FR 53756-53760.
---------------------------------------------------------------------------

c. Unbundled Process To Make Form I-765 Optional
Support for Unbundled Process That Makes Form I-765 Optional
Financial Benefits to Applicants
Comment: Some commenters expressing support for the unbundled
process stated that the provision would allow requestors to secure
deferred action before applying for employment authorization,
preventing them from losing the $410 Form I-765 filing fee upon a
denial of deferred action. Other commenters said the unbundled process
would provide flexibility and ease the financial burden for applicants
who do not need employment authorization, such as some university
students and those who are unable to work. Commenters said that the
181,000 DACA-eligible students in higher education would benefit from
the ability to financially prioritize the separate requests, as many of
these students may not need or want employment authorization during
their enrollment in higher education. Another commenter reasoned that
the $410 filing fee for Form I-765 is significant and a potential
barrier for many requestors.
Response: DHS acknowledges these commenters' support for the
proposed provision and agrees that an unbundled process would provide
additional flexibility and reduce financial barriers to deferred action
requests for some DACA requestors, including those who do not want to
or cannot currently work. DHS agrees that the proposed unbundled
process would provide DACA requestors with the ability to prioritize
requests for forbearance from removal over employment authorization

[[Page 53201]]

or to wait until they know their DACA request is approved before filing
and paying the fees for an EAD, as needed. DHS has weighed these
important interests carefully against countervailing considerations
discussed below and, as discussed in greater detail in this section,
has modified the proposed rule to codify the existing bundled process.
Protect the Integrity of DACA Against Future Litigation
Comment: Other commenters supporting the provision stated that
unbundling the requests for employment authorization and deferred
action would protect DACA recipients from the results of future
litigation and possible deportation. A commenter agreed with what they
perceived as DHS's rationale for the proposed change, namely that if
employment authorization requests were optional, there would be a
greater likelihood that the deferred action component of the policy
and, thus, relief from deportation would be upheld if a court
invalidated employment authorization for DACA recipients. Other
commenters stated that while it was within the Executive's immigration
authority to grant both deferred action and employment authorization,
an unbundled process would bolster the continued existence of DACA in
whole or in part.
A commenter stated that the proposed change would strengthen DACA's
designation as an executive exercise of prosecutorial discretion
because it would align DACA with other forms of prosecutorial
discretion that grant employment authorization based on economic need.
The commenter concluded that placing the program on firm ground with
regard to prosecutorial discretion while providing financial relief and
flexibility to DACA recipients would be essential ``until there is a
permanent congressional solution.''
Response: DHS acknowledges commenters who reasoned that the
proposed unbundled process would align DACA with other DHS exercises of
deferred action and could fortify the forbearance component of the DACA
policy in the event of ongoing or future DACA litigation. However, DHS
disagrees that unbundling these forms is necessary to preserve and
fortify the forbearance from removal component of the DACA policy. DHS
therefore disagrees with commenters to the extent they characterize
DHS's rationale for proposing the unbundled process as a necessary
means to insulate the policy from litigation. Rather, DHS's primary
reason for proposing the unbundled approach was to provide applicants
with greater flexibility and to reduce cost barriers to eligible
noncitizens who sought forbearance but did not want, prioritize, or
have economic need for employment authorization. And as discussed
throughout the NPRM and this rule, DHS strongly believes it is legally
authorized to implement the DACA policy, including to grant recipients
discretionary work authorization. DHS accordingly disagrees with
commenters' position that unbundling forbearance from removal and work
authorization is necessary to place DACA on stronger legal footing.
This rule, moreover, includes both a DACA-specific EAD provision at new
8 CFR 274a.12(c)(33) and a severability provision at new 8 CFR 236.24.
Thus, even if a court were to hold that DHS lacked authority to grant
discretionary work authorization to DACA recipients, DHS maintains that
the court should sever the work authorization provision from the rest
of the regulation, leaving DACA's forbearance component intact. As
unbundling the filing of the DACA request from the employment
authorization application is not legally required to preserve the
forbearance component of DACA, and as discussed in greater detail
below, despite the greater financial and other flexibility it would
offer DACA requestors, DHS has decided to modify the proposed rule to
maintain the status quo policy that requires all DACA requestors to
file Form I-765, Application for Employment Authorization, and Form I-
765WS concurrently with their form I-821D, Consideration of Deferred
Action for Childhood Arrivals.
Mixed Feedback on the Provision
Comment: Some commenters provided mixed feedback on the proposed
unbundled process without opposing or supporting the proposal. These
commenters acknowledged, as discussed above, that an unbundled process
would provide greater flexibility, reduce cost barriers to requestors,
and that unbundling the forms could better protect deferred action
should a court strike down access to employment authorization. A
commenter, however, questioned the purpose of DACA if recipients could
not legally work and obtain Social Security numbers and expressed
concern that the change would cause confusion for DACA recipients.
Commenters expressed concerns about delays that would result in
misaligned validity dates for deferred action and work authorization.
Citing USCIS historical processing times data that DACA initial
requests were taking on average nearly 6 months and DACA-related
employment authorization requests were taking on average nearly 2
months to be processed, a commenter stated that unbundling Forms I-821D
and I-765 could lead to additional delays in EAD adjudications, causing
disruptions for U.S. employers and harming DACA recipients and their
families. Likewise, a commenter stated that the rule, as proposed,
could not guarantee the timely adjudication of employment authorization
applications.
Without clearly supporting or opposing the proposed unbundled
process, other commenters urged DHS to proceed with caution and
suggested ways to ameliorate concerns with the proposed provision,
including: clearly and carefully communicating the change to the DACA
population, ensuring DACA recipients who work without authorization do
not face penalties, maintaining a procedure that would not confuse or
cause backlogs in applications due to the extended process, and adding
language to the rule that DACA and EAD applications USCIS receives
concurrently are adjudicated together and have the same validity dates.
Expressing support for this provision, a commenter raised concerns
that the optional form would effectively change the cost of DACA and
questioned whether the reduced cost would result in substantially lower
revenue for USCIS.
Response: DHS acknowledges these comments on the proposed unbundled
process. DHS agrees that the proposal would have provided additional
flexibility to requestors regarding whether or when to request
employment authorization in connection with their deferred action
requests under the DACA policy. DHS, as discussed elsewhere in this
rule, disagrees that unbundling these requests is necessary to
strengthen the legal footing of the DACA policy or this rule. DHS also
acknowledges these commenters' concerns that the proposed provision
could introduce confusion among the DACA-eligible population and cause
other unintended consequences, such as lengthier processing times,
backlogs, and EAD validity dates that do not match the full 2-year
period of deferred action for requestors who do not bundle their
requests. USCIS has made important strides in reducing backlogs and
ensuring efficient processing times for DACA-related requests. Of note,
median processing times for DACA renewal requests and related
employment authorization applications have decreased to half a month in
Fiscal Year (FY) 2022 to date. As discussed above, since July 16, 2021,
the Texas

[[Page 53202]]

district court order has prohibited USCIS from granting initial DACA
requests and related employment authorization applications.
Nevertheless, DHS agrees that an unbundled option could result in DACA
recipients who receive EADs with validity periods of less than 2 years
because the expiration date would necessarily be the end date of the
deferred action period, while the EAD validity date would depend on the
date of adjudication. DHS agrees with the commenter who suggested
unbundling these forms could result in diminished cost recovery if a
significant number of DACA requestors chose not to file Form I-765. In
the NPRM, DHS considered carefully this concern and, based on
projections, estimated that USCIS would charge, on average,
approximately $93,736,500 less than the estimated full cost of
adjudication for Form I-821D annually in FY 2022 and FY 2023 in the
unbundled scenario.\198\ Nevertheless, in the NPRM, DHS decided to hold
the fee for Form I-821D below the approximately $332 estimated full
cost of adjudicating that form alone and to propose the unbundled
process to offer greater flexibility to DACA requestors, finding this
framework to be in the public interest. In the NPRM, DHS explained its
view that the proposed Form 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 requestor population and the benefits of expanding
DACA to DHS and to communities at large. 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. However, DHS has considered these comments and, as
further discussed elsewhere in this rule, has decided to instead codify
the existing bundled process in this rule.
---------------------------------------------------------------------------

\198\ 86 FR 53764.
---------------------------------------------------------------------------

Opposition to the Optional Form I-765
Most commenters who provided feedback on this provision expressed
concern about the consequences it would have for DACA recipients, the
application process, program benefits, or the integrity of the program
overall. Many of these commenters urged DHS to instead retain the
existing bundled process that has been in place since 2012, with some
stating the proposed unbundled process undermined DACA.
Recognition of the Rationale Behind the Provision
Comment: Many commenters opposed the proposal while also
recognizing the financial and flexibility benefits the proposal would
have provided to some requestors, as discussed in more detail above.
Other commenters who expressed concern with the provision stated that
they appreciated the absence of any substantive alterations to EAD
adjudications or filing fees. One commenter noted that the requirement
for the DACA request to be submitted with the employment authorization
application is clearer, forces people to be ``all in or all out on the
Employment Authorization,'' and provides a greater understanding of
DACA and its benefits to requestors.
Response: DHS appreciates these commenters' recognition that the
proposed unbundled process would have benefitted some DACA requestors
by reducing cost barriers and expanding choice and flexibility for
these individuals. However, the Department accepts that these
commenters nevertheless preferred the bundled process, which is the
longstanding status quo practice since 2012 of requiring both the DACA
request and the employment authorization application to be filed
simultaneously. DHS addresses these commenters' opposition to the
proposal in this section, and, for the reasons discussed, has modified
this rule to codify the existing and longstanding bundled process.
Litigation and Loss of Employment Authorization
Comment: Many commenters remarked that strengthening the legal
position of deferred action through the proposed unbundled process
would create an opportunity for the courts or future administrations to
invalidate employment authorization for DACA recipients altogether.
A commenter stated that this change would be legally unnecessary,
citing DHS's recognition that deferred action has never created an
entitlement to employment authorization and that DACA recipients must
show an economic necessity to obtain such authorization. The commenter
concluded that the existing bundled process has promoted access to an
important benefit while minimizing costs to requestors and DHS.
Another commenter remarked that an unbundled process could leave
the program vulnerable to political attacks labeling DACA recipients as
unproductive members of society, which could weaken support for DACA
and leave the program open to future litigation. Similarly, another
commenter noted that that the proposed unbundling could create an
opportunity for individuals who are not motivated to work with
authorization to forgo the Form I-765 filing fee.
Response: DHS disagrees that unbundling the deferred action and
employment authorization requests would create any greater likelihood
that the employment authorization for DACA recipients would be
invalidated altogether. This rule again codifies an exercise of DHS's
authority to grant employment authorization to DACA recipients and
thereby serves to preserve and fortify DACA. This rule includes a DACA-
specific EAD provision at new 8 CFR 274a.12(c)(33). Thus, DHS would
need to engage in additional notice-and-comment rulemaking to remove
the regulatory text and the ability for DACA requestors to request
employment authorization. DHS agrees with commenters' assertion that
the proposed change is not legally necessary to fortify the
Department's authority to grant employment authorization to DACA
recipients. As explained in detail in the NPRM and elsewhere in this
rule, since at least the 1970s, the INS and later DHS have made
employment authorization available for noncitizens without lawful
immigration status but who receive deferred action or certain other
forms of prosecutorial discretion.\199\ In response to these comments,
and for additional reasons explained elsewhere in this preamble, DHS is
modifying the rule to adopt the existing bundled process instead of
adopting the unbundled process as proposed in the NPRM. Finally, DHS
notes that comments regarding political descriptions of DACA recipients
are outside the scope of this rule and declines to respond to these
comments.
---------------------------------------------------------------------------

\199\ 86 FR 53757.
---------------------------------------------------------------------------

DHS's Rationale Regarding the Need for Work Authorization
Comment: A few commenters critiqued DHS's rationale that some DACA
requestors may not need employment authorization and questioned how
likely it would be that DACA recipients would choose not to apply for
an EAD. Similarly, a legal services provider stated that employment
authorization is not an add-on benefit to DACA and that it would not
expect any of its clients to request deferred action under the DACA
policy without employment authorization. Echoing these arguments, a
commenter further reasoned that it is

[[Page 53203]]

difficult to see work authorization and deferred action as two separate
issues, adding that a deferred action-only DACA policy would have
little to no value to individuals. A commenter reasoned that, as the
only individuals who fit within the DACA policy under the Texas ruling
and partial stay are seeking to renew DACA and have always requested
deferred action alongside employment authorization, they would continue
to request these protections jointly and would not require the
additional flexibility. This commenter said that it would be important
for recipients to have assurance that they would not have any lapses in
employment authorization because of this change.
A commenter stated that the NPRM's projection that 30 percent of
DACA requestors would opt out of requesting employment authorization
was at odds with rapidly changing individual circumstances and the
importance of having the ability to work even if it is not continually
exercised. The commenter concluded the vast majority afforded the
opportunity to request work authorization will do so.
Response: DHS agrees with these commenters that most DACA
requestors likely will request employment authorization but reiterates
that the unbundled process proposed in the NPRM was intended to not
only offer options to requestors about whether to request employment
authorization, but also when to request this authorization. DHS
acknowledges some commenters' position that employment authorization is
not an ``add-on'' benefit of deferred action, but DHS disagrees.
Certainly, as discussed in the NPRM and elsewhere in this rule, policy
considerations weigh heavily in favor of authorizing employment for
individuals with deferred action. Nonetheless, as discussed throughout
this rule, DACA is an exercise of prosecutorial discretion in the form
of deferred action, upon which determination DHS has authority to
confer employment authorization. Indeed, as other comments have
indicated, there is likely to be a subset of the DACA population that
does not want or need an EAD at a given time and, therefore, may
benefit from the option to delay or defer requesting employment
authorization. DHS also reiterates that although the Texas court order
currently enjoins DHS from granting DACA to initial requestors, this
rule addresses the threshold criteria and process for both initial DACA
requests and renewal requests. DHS has carefully considered these
comments, weighing the unbundled process's potential benefits to a
subset of DACA requestors against the complications posed to the larger
population of DACA requestors. Upon careful consideration, as explained
below, DHS agrees that the benefits of the proposed unbundled process
do not outweigh the potential negative impacts raised by commenters as
discussed in this rule. DHS therefore has decided to modify the
proposed rule and instead to codify the longstanding bundled process
that requires requestors to simultaneously file Form I-765, Application
for Employment Authorization, and Form I-765WS along with their Form I-
821D, Consideration of Deferred Action for Childhood Arrivals.
Administrative Burdens on Applicants, Confusion, and Impacts on Pro Se
Applicants
Comment: Many commenters stated that the proposed unbundled process
would create unnecessary burdens for current DACA recipients who are
accustomed to the bundled process and those who may unknowingly opt out
of work authorization due to financial necessity, confusion, or a lack
of legal assistance. Another commenter said that any confusion
resulting from this change could deprive DACA recipients of access to
or ability to work, which the commenter stated is necessary to
establish their families' safety and security in the United States.
A commenter stated that, in its experience with the administration
of and access to public benefit programs, duplicative applications
create unnecessary barriers to participation, while increasing the
administrative burden on requestors and the granting agencies.
Similarly, commenters stated this change could increase time and
resources spent on legal fees to submit additional paperwork or to
navigate the new process. In addition to compounding burdens for
requestors, agencies, and legal services providers, a commenter
suggested that confusion related to this provision would overwhelm
under-resourced organizations that assist DACA requestors.
A commenter said that many requestors with financial limitations
may fail to understand the benefits of concurrently filing Forms I-821D
and I-765. Other requestors, commenters remarked, may erroneously
believe they can apply for deferred action and automatically receive
employment authorization, or inadvertently fail to opt into applying
for employment authorization, leading to further delays and the
potential loss of employment opportunities.
Many commenters stated that the burden of this change could fall
largely on pro se requestors, making the policy less accessible for
those lacking proper guidance to navigate complex, evolving processes.
A commenter said this provision would create an acute risk that pro se
requestors would not understand that they must apply separately for an
EAD under the new process, and that there would be a ``skeletal track''
resulting in deferred action alone. This confusion, the commenter
warned, could result in EAD applications lagging behind DACA requests
and subsequent losses in the work authorization period, despite paying
the full fee for an EAD. Other commenters stated that these challenges
would largely fall on first-generation noncitizens and requestors with
limited resources.
Response: DHS acknowledges these commenters' concerns and
recognizes the need for clarity regarding the process to request
consideration for deferred action and employment authorization under
the DACA policy. DHS has carefully considered these concerns and agrees
that the population of DACA requestors is accustomed to the well-
established bundled process that has been in place since 2012. DHS
recognizes that diverging from this longstanding process could cause
confusion and agrees that requestors without the assistance of
attorneys or accredited representatives could be disproportionately and
adversely impacted by the proposed change. DHS also recognizes that
codifying the unbundled process could strain resources among nonprofit
legal services providers because it could result in more requestors
seeking assistance from these providers and introduce more procedural
options to consider, causing legal services providers to spend
additional time and resources explaining the change, counseling
requestors, and preparing and filing unbundled forms. DHS also
acknowledges commenters' concerns that while the proposed change could
reduce cost barriers to forbearance from removal, those DACA requestors
with acute economic distress such that they could not afford the filing
fee under a bundled process also likely would be among those
individuals with the most economic need for employment authorization.
DHS also agrees that it is important that DACA recipients who pay the
Form I-765 filing fee receive an EAD with a validity period that
matches the full deferred action period, and that those who have
limited resources may be disproportionately impacted by

[[Page 53204]]

delaying filing the Form I-765 due to inability to pay. Because DHS has
decided to maintain the 2-year DACA deferred action validity period set
forth in the Napolitano Memorandum, the Department declines to make
changes to this rule that would extend employment authorization
validity periods beyond that timeframe. However, after careful
consideration of these concerns raised by commenters, and having
carefully weighed the potential benefits against the unintended
negative consequences raised by the proposal, DHS agrees to make
changes in the rule to codify the existing bundled approach, rather
than offering requestors the option of an unbundled process.
Delays in Adjudication and Gaps in Employment Authorization
Comment: Several commenters expressed concern that unbundling
requests for employment authorization and deferred action would
increase administrative burdens for USCIS and lead to delays that could
harm DACA recipients' ability to meet economic needs through work. A
commenter stated that an unbundled process would magnify delays in
grants of deferred action or work authorization, leading to incomplete
protection and increased uncertainty. Citing current USCIS backlogs, a
commenter similarly expressed concern that an unbundled process would
compound bureaucratic delays in an agency already experiencing backlogs
in adjudicatory functions, including EAD processing. Commenters stated
that an unbundled process not only would lead to delays but also could
result in the improper denial of work authorization requests. A
commenter added that employment authorization gaps heighten the delays
employers already experience with noncitizen employees amid labor
shortages. Other commenters stated that the unbundled process would
result in misaligned validity dates for DACA and employment
authorization, leading to the potential loss of a full term of
employment authorization and uncertainty for employers and recipients.
Response: DHS recognizes that DACA recipients and employers have
significant reliance interests in the DACA policy this rule aims to
preserve and fortify. DHS acknowledges these commenters' concerns
regarding processing delays and bureaucratic complications arising from
an unbundled process. DHS agrees that DACA requestors and their
employers have an interest in efficiently processed DACA-related
employment authorization requests and in EAD validity dates that align
with the authorized deferred action period. DHS notes that the median
processing time for a DACA-related Form I-765 is 0.5 months in FY 2022,
as of May 31, 2022,\200\ reflecting important measures USCIS has taken
to ensure properly filed requests are swiftly adjudicated.
Nevertheless, DHS acknowledges it would require additional resources to
operationalize an unbundled approach that results in multiple
configurations of requests and an increased likelihood of ``second
touch'' processing, whereby a requestor files a Form I-765 at some
point after submitting their deferred action request. DHS has carefully
weighed the intended benefits of additional flexibility for requestors
and the potential unintended consequences of increased confusion,
uncertainty, and bureaucratic delay, and agrees with these commenters
that the flexibility benefits do not outweigh these potential negative
impacts. DHS therefore agrees to adopt the suggestion of these
commenters to codify the rule at new 8 CFR 236.23(a)(1) to require that
a request for DACA also must contain a request for employment
authorization filed pursuant to 8 CFR 274a.12(c)(33) and 274a.13.
---------------------------------------------------------------------------

\200\ USCIS, Historical National Median Processing Time (in
Months) for All USCIS Offices for Select Forms By Fiscal Year,
Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,
2022).
---------------------------------------------------------------------------

Two-Tiered System and Unauthorized Employment
Comment: Many commenters stated that confusion, delays, or denial
of work authorization under an unbundled process would create ``unequal
DACA tiers'' between recipients with and without EADs. A few commenters
expressed concern that unbundling deferred action and work
authorization could create an opportunity for individuals who are not
motivated to work with authorization to forgo the I-765 filing fee or
for DACA recipients to avoid work at taxpayers' expense.
Most commenters who raised concerns about a two-tiered system
discussed the adverse impact on unauthorized workers, workplace safety,
and labor rights. A commenter stated that unbundling deferred action
and work authorization would lead to persons opting out of paying the
Form I-765 fee for reasons of poverty, suggesting that the choice to
delay entry into the workforce would not be done freely. Another
commenter said the proposed change to the application process would
result in some DACA recipients being granted DACA and not employment
authorization.
A commenter remarked that this provision would make work
authorization more difficult to obtain, ``forcing'' some individuals
into precarious situations where they pursue unauthorized employment.
This outcome, the commenter stated, would run counter to the agency's
intention of using its power to protect wages, facilitate workplace
safety, and enforce other labor and employment standards. Another
commenter noted that, whether due to fear, confusion, or cost,
requestors may be deterred from accessing work authorization under an
unbundled process, which would open the possibility of a new ``second
class'' of DACA recipients without work authorization. These DACA
recipients who lack employment authorization, commenters stated, would
open the door for increased unauthorized employment and empower
unscrupulous employers to take advantage of unauthorized labor,
including lower pay and exploitative, even hazardous work conditions. A
commenter added that unscrupulous employers often exploit the lack of
employment authorization to chill workers' efforts to organize, protest
substandard working conditions, and enforce wage, safety, and
discrimination laws, and also interfere with collective bargaining
rights, suggesting that the proposed change could cause irreversible
harm to many individuals by forcing them into informal employment.
Citing studies, a commenter stated that the economic consequences of
this change and possible involvement in abusive work situations would
be particularly acute for populations that are disproportionately
harmed by systemic inequalities, including LGBTQ populations, racial
minorities, and people with disabilities.
A commenter expressed concern that a reduced population of work-
authorized DACA recipients would lead to the DACA population's
increased reliance on nonprofits, community organizations, and city or
State funding for daily needs.
Response: DHS acknowledges these commenters' concerns about the
proposed unbundled process. DHS agrees that, to the extent that some
DACA requestors would forgo employment authorization under the
unbundled process, two groups of DACA recipients would result, those
with and those without employment authorization. As discussed in the
NPRM, DHS recognizes that, if offered the option to forgo employment
authorization, some DACA recipients would opt out due to a financial

[[Page 53205]]

inability to pay the Form I-765 filing fee. However, DHS disagrees with
the commenter that an unbundled process would force some DACA
requestors into unauthorized employment, although DHS acknowledges that
such unauthorized employment may be more likely to occur. While DHS
acknowledges commenters' point that an unbundled process could result
in confusion or uncertainty among DACA requestors, DHS reiterates that
it proposed the unbundled process as a mechanism to offer more
flexibility and make forbearance from removal more accessible to
individuals who might otherwise forgo DACA altogether due to an
inability to pay filing fees for employment authorization.
Nevertheless, DHS recognizes and agrees with commenters that there are
strong policy reasons to make employment authorization requests
accessible for those to whom DHS has extended deferred action. As
discussed above, self-reliance of community members is critical not
only to social and economic prosperity, but also to individuals'
personal well-being. While the DACA policy, even without employment
authorization, has substantial value, DHS recognizes that without
employment authorization, DACA recipients would be unable to engage in
lawful employment to support themselves and their families, potentially
exposing them to exploitation and crime. DHS has carefully weighed the
benefits of increased flexibility offered by the proposed unbundled
process against these unintended negative consequences and agrees to
modify the rule to codify the existing bundled process instead of the
proposed unbundled process.
The Provision Would Undermine the Purpose and Benefits of DACA
Comment: Some commenters warned that the proposed unbundled process
would, as a result of other residual consequences of the provision,
frustrate the main purpose of DACA, to provide both protection from
deportation and the ability to work in the United States. A commenter
reasoned that the decision to make employment authorization ``more
challenging for DACA recipients belies [the] recognition of the pivotal
role of employment authorization to the proper operation'' of DACA.
Several commenters similarly said that the provision would undermine
the rationale behind DACA. A commenter stated that separating
forbearance from deportation and work authorization would have negative
effects on its city economy, arguing that DACA without work
authorization would mean an increase in poverty (including mixed-status
families), a loss of desperately needed essential workers, and a
significant loss to their city's economy and revenues. The commenter
estimated that DACA-eligible New Yorkers contribute over $3 billion
annually to New York City's GDP.
Commenters reasoned that deferred action and work authorization are
not separate, as the ability for Dreamers to freely live with their
families and communities is synonymous with their ability to legally
work. A commenter said that DHS could not fortify DACA with a
regulation that separates deferred action from employment
authorization. In addition to stating the potential impacts of this
change on the request process, the commenter added that the proposed
change would weaken the purpose of DACA by undermining the worth and
agency of childhood arrivals.
Many commenters noted that, if this provision led to any recipients
losing their employment authorization, recipients also could lose the
other benefits an EAD provides beyond the ability to work. Commenters
said that the EAD functions as a foundational form of identification
for many DACA recipients, who may find this new process confusing and,
therefore, fail to reapply for this benefit. They reasoned that an EAD
is often the only acceptable form of identification for obtaining a
driver's license while providing access to a Social Security number,
health insurance and preventative care, entrance to Federal buildings,
social benefits, school registration for children, long-term
educational opportunities, bank loans, and home utilities. Other
commenters added that, without an EAD, DACA recipients have no way of
demonstrating ``lawful presence,'' which is the criterion that some
States have chosen to use for eligibility for a State identification
card, which could in turn affect their right to domestic travel when
full enforcement of REAL ID requirements begins. A commenter similarly
stated that, even among those who do not require work authorization, an
EAD is valuable for obtaining these additional benefits. Considering
the loss of benefits for individuals only granted deferred action under
this change, commenters suggested that recipients should be allowed to
receive an alternative form of identification with their approved DACA
request, including a Social Security number and Federal identification.
Response: DHS acknowledges these commenters' concerns. DHS agrees
that the ability to request employment authorization has been an
important component of the DACA policy since it was implemented in
2012. Although DHS reiterates that employment authorization is not
incident to receipt of deferred action--which is an act of
prosecutorial discretion--as it is incident to certain forms of lawful
immigration status, such as TPS and asylum, DHS agrees that employment
authorization is important to most DACA recipients. DHS also agrees
with and is persuaded by comments that point to the many reasons beyond
employment that DACA recipients may want or need an EAD to facilitate
important aspects of daily living while they have deferred action. DHS
acknowledges that DACA recipients may require an EAD for identification
or to access a variety of State and local benefits, programs, or
services. DHS agrees that the proposed unbundled process raises the
prospect that some DACA recipients may unwittingly forgo or be deterred
from applying for an important identity document or restrict their
access to these benefits, programs, or services by virtue of forgoing
an employment authorization request for any number of reasons discussed
above. Although it is generally the purview of States and
municipalities to make policies regarding eligibility of DACA
recipients for these benefits, programs, and services, DHS has a strong
interest in ensuring that individuals who have been granted DACA are
not deterred from requesting an EAD to establish their identity and
DACA forbearance. DHS appreciates the commenter's suggestion that DHS
furnish individuals who request only deferred action under an unbundled
process with an alternative identity document. However, DHS declines to
adopt this suggestion as it would impose additional operational costs,
could introduce confusion among States and localities, and would result
in DACA recipients receiving an identity document not available to
recipients of deferred action under other policies or processes.
Instead, upon careful consideration of the important concerns raised by
these commenters, DHS agrees to modify the final rule at new 8 CFR
236.23(a)(1) to require that a request for DACA also must contain a
request for employment authorization filed pursuant to 8 CFR
274a.12(c)(33) and 274a.13.
Fee Waivers as an Alternative to the Unbundled Process
Comment: Commenters expressed concern that the proposed provision
would have made filing Form I-765 optional while maintaining the
existing fee structure. Recognizing that the provision would reduce
fees for

[[Page 53206]]

applicants with financial hardship or not needing employment
authorization, some commenters requested DHS consider other
alternatives for making the application affordable or more accessible,
including through fee waivers. A commenter also stated that, although
separating the two forms and their fees could alleviate the financial
burden of requesting DACA for some, it would not eliminate that burden
entirely. Other commenters said that the only benefit of the unbundled
process would be to offer a lower cost option, but stated that
providing a fee waiver was a better alternative than restricting the
application to a limited benefit for some. A commenter further
expressed concern that DACA is one of the few immigration requests for
which requestors are prohibited from requesting a fee waiver, while
another commenter urged implementation of a fee waiver option, stating
that the current fee exemption process for DACA requestors is
cumbersome and further delays beneficiary status. Another commenter
said that USCIS is authorized to carry out fee waivers under 8 CFR
106.3(b). To this end, a commenter recommended that USCIS allocate
additional funds to waive the fee associated with Form I-765 to reduce
the burden on DACA-eligible students.
Response: DHS agrees with commenters that policy interests favor
making DACA accessible to those who meet the criteria and merit a
favorable exercise of discretion and, as such, is not increasing the
DACA-related fees in this rule. As discussed in greater detail
elsewhere in this rule, DHS has carefully considered the suggestion to
make fee waivers available to DACA requestors and weighed the benefits
of fee waivers to requestors with the fiscal impact and objective to
preserve and fortify DACA. Although DHS agrees to modify the rule to
require the existing bundled process, DHS declines to adopt the
suggestion to implement fee waivers.
Other Alternatives to an Unbundled Process
Comment: A commenter stated that DACA would benefit from not
changing the application process in the manner set forth in the
proposed rule due to the precarious situation of the policy's long-term
viability. Alternatively, the commenter suggested that DHS amend the
rule to provide an unbundled process option for initial DACA requestors
should they be allowed to receive benefits in the future and maintain
the existing bundled process for individuals seeking to renew their
status. A different commenter recommended that the agency provide a way
for requestors to affirmatively decline filling out an application for
work authorization, instead of unbundling these processes. Another
commenter suggested that either the rule maintain the bundled process
or that an additional option be included that combines the work permit
and DACA renewal instead of ``completely decoupling'' the two requests.
Another commenter urged DHS to continue to grant employment
authorization concurrently with deferred action and to prominently list
on Form I-821D the significant benefits and any known drawbacks of
having an EAD for requestors.
Response: DHS acknowledges and thanks commenters for these
suggestions. As an initial matter, DHS reiterates that the proposed
unbundled process would not have completely ``decoupled'' deferred
action and employment authorization requests for the DACA population.
Under the proposed rule, requestors would have retained the option to
bundle and concurrently file these requests, but would have the added
option of filing for employment authorization separately or not at all.
Nevertheless, as discussed above, upon careful consideration of
comments received and the extensive comments filed in opposition to the
proposed unbundled process, DHS is modifying the rule to codify the
longstanding bundled process. DHS believes that a consistent request
process for both initial and renewal requestors would best ensure
efficient processing and minimize processing delays or other
bureaucratic drawbacks of an unbundled process noted by commenters. DHS
therefore declines to adopt an unbundled approach for initial
requestors. In light of DHS's decision to adopt the existing bundled
process, DHS also declines to adopt suggestions to provide a means for
requestors to affirmatively decline employment authorization or to list
on Form I-821D the benefits and drawbacks of having an EAD.
d. Automatic Termination of Work Authorization
Comment: One commenter expressed general concern that, under the
proposed rule, termination of a DACA grant would result in termination
of the EAD as well, while another stated that the automatic termination
of work authorization provision is an example of the proposed rule
giving the policy ``more of a back[bone],'' stating that this was not
strictly enforced beforehand.
Response: DHS acknowledges the range of views expressed, from one
commenter's concern that individuals are no longer eligible to work
lawfully once their EAD is terminated, to another commenter's support
for the provision. However, DHS disagrees that this provision was not
strictly enforced previously. Historically, when an individual's grant
of DACA has been terminated, so too has the individual's employment
authorization been terminated, because the underlying basis for the
employment authorization no longer exists upon the termination of DACA.
DHS is revising 8 CFR 236.23(d)(3) in this rule to remove the
cross-reference to 8 CFR 274a.14(a)(1)(iv), which was vacated in
Asylumworks, et al. v. Mayorkas, et al., civ. 20-cv-3815 (D.D.C. Feb.
7, 2022). As a result of the vacatur and additional revisions made to
the DACA termination provisions to eliminate automatic termination
based on filing of an NTA, as discussed elsewhere in this rule, DHS is
further clarifying at 8 CFR 236.23(d)(3) that employment authorization
terminates when DACA is terminated and not separately when removal
proceedings are instituted.
3. Lawfully Present (Sec. 236.21(c)(3)) and Unlawful Presence (Sec.
236.21(c)(4))
In proposed 8 CFR 236.21(c)(3) and (4), DHS proposed that DACA
recipients, like all other deferred action recipients, would continue
to be considered ``lawfully present'' (a legal term of art) for the
purpose of receiving certain title II Social Security benefits under
existing 8 CFR 1.3(a)(4)(vi) and would not accrue unlawful presence for
inadmissibility determinations under INA sec. 212(a)(9)(B), 8 U.S.C.
1182(a)(9)(B) while they have DACA. Both provisions reflect policy and
practice for persons subject to deferred action more broadly since well
before the inception of DACA. As detailed below, the public comments on
these two proposals were overwhelmingly supportive of the two proposed
lawful presence provisions, with only a few commenters expressing
opposition to them. Several of the supportive commenters also provided
recommendations for additional modifications to the proposed
provisions. DHS responds first to the supporting comments, then to the
opposing comments, and finally to those comments that supported the
lawful presence provisions but recommended certain modifications.

[[Page 53207]]

Support for ``Lawfully Present'' and ``Unlawful Presence'' Proposals
Comment: In expressing their strong support for DHS's proposal that
DACA recipients will continue to be deemed ``lawfully present'' for
certain benefit purposes as noted in 8 CFR 1.3(a)(4)(vi), commenters
provided several reasons. These reasons included: appreciation for
DHS's clarification and confirmation that DACA recipients are
``lawfully present''; support for DHS's explanation in the preamble
that it would continue to treat individuals granted deferred action
under DACA as ``lawfully present,'' as well as the agency's discussion
of the differences between lawful presence and lawful status; treating
undocumented immigrants as ``lawfully present'' allows them to find
employment to support themselves and their families; DACA recipients
would be able to obtain Social Security numbers, an outcome the
commenters said would allow individuals to obtain jobs and forms of
identification, pay taxes, and surpass evidentiary barriers to
services; the proposal on lawful presence would enable the recipients
to qualify for Social Security and certain other public benefits; and
there is no legitimate reason for treating DACA recipients differently
from others with deferred action with respect to ``lawful presence.''
One commenter was particularly supportive of the proposal to treat
DACA recipients as ``lawfully present'' for purposes of statutes
governing eligibility for certain Federal benefits. Many commenters
applauded the proposals for confirming that DACA recipients are deemed
``lawfully present'' and do not accrue unlawful presence, commenting
that these individuals were not able to understand the implications of,
nor control, their entry into the United States at a young age.
Many commenters were similarly supportive of the proposed rule's
incorporation of DHS's longstanding policy that DACA recipients, like
other deferred action recipients, do not accrue unlawful presence for
purposes of the inadmissibility grounds in INA sec. 212(a)(9), 8 U.S.C.
1182(a)(9) while their deferred action is valid. In expressing their
support, commenters noted the following: accruing unlawful presence
could otherwise present an obstacle to future admissibility; removing
lawful presence for DACA recipients would create a permanent underclass
and prevent such individuals from pursuing a green card; the treatment
of DACA recipients as lawfully present helps shield and protect DACA
recipients against adverse immigration consequences associated with the
accrual of unlawful presence, including bars on reentry; accrual of
unlawful presence would present barriers for individuals or their
relatives to pursue legal pathways to permanent residency; maintaining
the proposed rule's provision on unlawful presence will help ensure
that the largest possible percentage of DACA recipients remain eligible
for other forms of immigration relief; and holding DACA protections
always should prevent the accrual of unlawful presence.
Several commenters specifically responded to DHS's request for
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. Commenters stated that individuals
with deferred action always have been covered by the lawfully present
regulation and that any other formulation would break from legal
precedent and longstanding policy, as well as create an unworkable and
overly complex adjudication framework. One commenter said that changing
longstanding policy around deferred action and lawful presence would
create a logistical nightmare in the complex realm of immigration law.
The commenter further stated that if such a change were made
retroactive, it would fly in the face of extensive legal precedent
regarding retroactive lawmaking, but if the change were not
retroactive, USCIS would have the problem of determining when different
recipients had DACA that prevented the accrual of unlawful presence
(pre-rule) and when their DACA did not protect them from accruing such
unlawful presence. According to the commenter, this would involve an
increase in adjudication and require the expenditure of more agency
resources that would significantly counterbalance any possible benefit
of such a change, resources the commenter noted the DACA policy is
intended to preserve. The commenter also stated that this would present
constitutional issues under the Fifth Amendment's equal protection
guarantee \201\ because that guarantee requires the Government to
provide sufficient rationale if it wants to treat persons in similar
situations in a disparate manner. The commenter noted that USCIS would
need to increase adjudication as those who are similarly situated are
offered rights that new DACA recipients are not. Other commenters made
similar points regarding the disadvantages of changing the longstanding
practice regarding DACA recipients' nonaccrual of unlawful presence,
including the constitutional equal protection concerns and the
difficulties of applying such a change. The commenters added that the
change likely would necessitate DHS deciding which DACA recipients had
not accrued unlawful presence prior to the rule given that it would
likely not be retroactive as compared to those who would accrue
unlawful presence after promulgation of such a change. A commenter also
noted that removal of the lawful presence designation could undermine
postsecondary educational opportunities for DACA recipients in the
workforce.
---------------------------------------------------------------------------

\201\ [thinsp]The commenter cited both the Fourteenth and Fifth
Amendments. 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.'' In the case of racial discrimination in DC public
schools, the Court found that no lesser Constitutional protections
apply to the Federal Government through the application of the Due
Process Clause in the Fifth Amendment than by application of the
Equal Protection Clause of the Fourteenth Amendment.
---------------------------------------------------------------------------

Some commenters stated that they supported the provision to
consider individuals with deferred action as lawfully present and
opposed any DACA rule that would fail to confirm lawful presence for
individuals with deferred action. Similar to the commenter noted above,
these commenters said that any DACA rule that fails to include lawful
presence could present Equal Protection Clause implications, citing the
Fourteenth Amendment of the U.S. Constitution and stating that DHS must
treat DACA recipients the same as individuals with other forms of
deferred action. A form letter submitted by several commenters cited
the Department of Health and Human Services (HHS) action stripping
lawful presence for DACA recipients for Affordable Care Act (ACA)
purposes as an agency action that received significant public
opposition and worsened healthcare outcomes for impacted individuals.
Several commenters noted that DHS should formalize its longstanding
policy that DACA recipients granted deferred action do not accrue
unlawful presence for purposes of INA sec. 212(a)(9), 8 U.S.C.
1182(a)(9).
Response: The Department acknowledges and appreciates the many

[[Page 53208]]

reasons that commenters provided for their support of the proposed
rule's two provisions on lawful presence (proposed 8 CFR 236.21(c)(3)
and (4)). For the reasons detailed in Section III.E of the proposed
rule and discussed further below,\202\ DHS agrees that DACA recipients
are provided deferred action and should continue to be deemed
``lawfully present'' like all other deferred action recipients--as they
have been since the start of DACA--under 8 CFR 1.3(a)(4)(vi) for
purposes of receiving title II Social Security benefits described in
that regulation. Similarly, DHS agrees that the rule properly codifies
DHS's decade-long policy that DACA recipients are similarly situated to
other individuals with deferred action who have, since at least 2002,
not accrued unlawful presence for purposes of INA sec. 212(a)(9), 8
U.S.C. 1182(a)(9) inadmissibility while action is deferred in their
case.\203\ The Department sees no reason to treat DACA recipients any
differently from other deferred action recipients for these purposes,
and therefore is retaining proposed 8 CFR 236.21(c)(3) and (4) in the
final rule. DHS notes, however, that although it firmly believes it has
the legal authority to promulgate these provisions, as described in its
response below to the opponents of the lawful presence provisions, DHS
also maintains its views on severability, as provided in 8 CFR 236.24
and discussed elsewhere in this rule, in the event that any portion of
the rule is declared invalid, including one or both of these lawful
presence provisions. In particular, even if a court determines that DHS
does not have the legal authority to promulgate one or both of the
lawful presence provisions, DHS intends that the remainder of this
rule, including the forbearance and work authorization provisions,
should be maintained.
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\202\ See 86 FR 53760-53762. See also DHS response under
Opposition to ``lawfully present'' and ``unlawful presence''
proposals below.
\203\ 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) (hereinafter Neufeld Memorandum); 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); USCIS
Adjudicator's Field Manual ch. 40.9.2(b)(3)(J).
---------------------------------------------------------------------------

DHS also notes the concerns expressed by some commenters that a
rule that states that DACA recipients, unlike other deferred action
recipients, lack lawful presence would violate equal protection
principles and that changing this policy would create significant
operational complexity for DHS. Since DHS has not taken such an
approach and the rule continues the long-existent policy that DACA
recipients, similar to other deferred action recipients, are lawfully
present for certain public benefits and do not accrue unlawful presence
for purposes of section 212(a)(9)(B) of the INA, DHS does not express a
position regarding the commenters' hypothetical equal protection
arguments. DHS will address the claim if it becomes necessary to do so
in a subsequent forum. However, DHS concurs that changing the policy
regarding lawful presence would create significant operational
complexity if done prospectively, as USCIS would need to determine in
future adjudications the specific amount of unlawful presence accrued
by DACA recipients on an individual basis.\204\
---------------------------------------------------------------------------

\204\ Several commenters cited Vartelas v. Holder, 566 U.S.
257(2012) (noted in ruling against retroactive application of a law
that court was ``[g]uided by the deeply rooted presumption against
retroactive legislation''). Cf. also, e.g., Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988) (``a statutory grant of
legislative rulemaking authority will not, as a general matter, be
understood to encompass the power to promulgate retroactive rules
unless that power is conveyed by Congress in express terms''). DHS
takes note of commenters' stated retroactivity concerns, but
declines to express a view at this time as to whether retroactive
application of a policy change regarding DACA recipients and the
accrual of unlawful presence for section 212(a)(9)(B) purposes would
be impermissibly retroactive.
---------------------------------------------------------------------------

Opposition to ``Lawfully Present'' and ``Unlawful Presence'' Proposals
Comment: A few commenters opposed the proposed rule's provisions on
lawful presence for certain public benefits and the nonaccrual of
unlawful presence while in DACA for inadmissibility purposes. One
commenter, who also set forth a view of the overall illegality of DACA,
wrote that the proposed rule not only ignored statutorily mandated
removal proceedings but also went further to provide immigration
benefits to people with no lawful access to immigration benefits. In
support of this view, the commenter quoted from the district court in
Texas: `` `Against the background of Congress' `careful plan,' DHS may
not award lawful presence and work authorization to approximately 1.5
million aliens for whom Congress has made no provision.'' The commenter
further stated that the message to the world is that illegal entry will
be rewarded and unlawful presence will be mooted by executive action.
The commenter said that promulgating a DACA regulation only perpetuates
the problem. Another commenter who expressed opposition to the DACA
policy and the rule's provision of lawful presence to recipients wrote
that DHS is bound by the Texas district court's ruling that DACA is
unlawful and cannot continue with DACA rulemaking just because it
disagrees with the court.
One commenter stated that Congress' careful plan for the allotment
of lawful presence forecloses the possibility that DHS may designate
hundreds of thousands of people to be lawfully present. The commenter
noted that the proposed rule would allow the Secretary to grant lawful
presence and work authorization to every ``illegal alien'' in the
United States. The commenter stated that the INA does not permit DHS to
reclassify ``illegal aliens'' as ``lawfully present'' and eligible for
Federal and State benefits, including work authorization. Another
commenter similarly expressed opposition to the proposed rule for
intentionally choosing not to enforce immigration law, stating that
DACA recipients do not have lawful presence regardless of any economic
activity in which they engage after entering the country illegally. The
commenter further noted that the recipients' intent or age at the time
has no relevance and that the commenter could not present a personal
defense in court based upon a lack of knowledge of the law or lack of
intent if charged of any crime. The commenter stated that illegally
entering the United States is no exception.
Response: DHS appreciates these comments but continues to
respectfully disagree with the commenters who oppose the two provisions
in this rule related to lawful presence for the reasons described in
the preamble to the proposed rule in Section III.E.\205\ As noted
elsewhere in this rule, DHS fundamentally disagrees with the commenters
who stated DHS does not have the legal authority to implement the DACA
policy or to promulgate a rule continuing the policy. DHS also believes
it has the legal authority to continue providing DACA recipients the
same longstanding treatment it has afforded to all other recipients of
deferred action, who are deemed ``lawfully present'' under 8 CFR
1.3(a)(4)(vi) for title II Social Security benefits and under DHS's
guidance on nonaccrual of unlawful presence for INA sec. 212(a)(9)
purposes.
---------------------------------------------------------------------------

\205\ 86 FR 53760-53762.
---------------------------------------------------------------------------

In PRWORA,\206\ Congress provided the Attorney General (now
Secretary) the authority to determine which noncitizens would be
considered

[[Page 53209]]

``lawfully present'' for purposes of retirement and disability benefits
under title II of the Social Security Act.\207\ The Balanced Budget Act
of 1997 \208\ amended PRWORA to add substantially identical exceptions
for Medicare and railroad retirement and disability benefits.\209\
States may also affirmatively enact legislation making noncitizens
``who [are] not lawfully present in the United States'' eligible for
State and local benefits.\210\ Federal law also limits the availability
of residency-based State postsecondary education benefits for
individuals who are ``not lawfully present.'' \211\ Thus, while there
is no express definition of ``lawfully present'' or ``unlawfully
present'' for all purposes, Congress clearly authorized the Secretary
to determine who is ``lawfully present'' for certain purposes. DHS
notes that in the intervening 26 years since the Attorney General
determined by rule, 8 CFR 1.3(a)(4)(vi), that deferred action
recipients are ``lawfully present'' for purposes of 8 U.S.C.
1611(b)(2), the provision has not been struck down by courts. Nor has
Congress enacted any legislation contrary to the Secretary's
determination to designate deferred action recipients as eligible for
receiving Social Security benefits. To the contrary, Congress 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.\212\ Noncitizens granted
deferred action long have been considered ``lawfully present'' under 8
CFR 1.3(a)(4)(vi) for purposes of receiving title II Social Security
benefits, and DHS sees no basis for distinguishing deferred action
recipients under the DACA policy.
---------------------------------------------------------------------------

\206\ Public Law 104-193, 110 Stat. 2105.
\207\ See 8 U.S.C. 1611(b)(2).
\208\ Public Law 105-33, 111 Stat. 251.
\209\ 8 U.S.C. 1611(b)(3) and (4).
\210\ 8 U.S.C. 1621(d).
\211\ 8 U.S.C. 1623(a).
\212\ 8 U.S.C. 1611(b)(3) and (4).
---------------------------------------------------------------------------

DHS also disagrees with the commenters who expressed opposition to
the proposed codification of the decade-long DHS practice of including
DACA recipients within the group of all other deferred action
recipients who do not accrue ``unlawful presence'' for purposes of the
inadmissibility grounds in INA sec. 212(a)(9)(B), 8 U.S.C.
1182(a)(9)(B). For purposes of those specific grounds, Congress stated
``an alien is deemed to be unlawfully present in the United States if
the alien is present in the United States after the expiration of the
period of stay authorized by the Attorney General [now Secretary] or is
present in the United States without being admitted or paroled.'' \213\
As DHS explained in the proposed rule, since 2002 the Government has
interpreted this deeming provision enacted by Congress to mean that
persons should not be deemed ``unlawfully present'' during ``period(s)
of stay authorized by the Attorney General,'' including a period of
deferred action.\214\ DHS also notes that the first clause of the
statutory definition of ``unlawfully present'' addresses how an alien's
presence should be ``deemed'' after expiration of a period of stay, not
during such a period. DHS sensibly construes Section 1182(a)(9)(B) as a
whole not to deem a noncitizen ``unlawfully present'' during an
authorized stay, regardless of whether the person was previously
``admitted or paroled.'' Otherwise, ``unlawful presence'' would accrue
when a noncitizen's presence has been authorized by DHS. For example,
asylum is a lawful status, but it does not constitute an ``admission''
(or parole).\215\ Such an interpretation would mean noncitizens who
entered without inspection and then received asylum would still accrue
``unlawful presence''--notwithstanding that they are authorized to
remain in the United States, and in fact have lawful status. That would
make little sense.
---------------------------------------------------------------------------

\213\ 8 U.S.C. 1182(a)(9)(B)(ii).
\214\ See 86 FR 53761 (citing Neufeld Memorandum; Williams
Memorandum; USCIS Adjudicator's Field Manual ch. 40.9.2(b)(3)(J)).
\215\ In re V- X-, 26 I&N Dec. 147, 150-52 (BIA 2013).
---------------------------------------------------------------------------

DHS's interpretation does not mean that, in a broad sense, deferred
action recipients, such as those with DACA, are lawfully in the United
States for all purposes.\216\ Instead, the concept of ``lawful
presence'' is a term of art, and very different from ``lawful status.''
It encompasses 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, 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. For these reasons, DHS believes that it
is within its authority, as provided by INA sec. 212(a)(9)(B)(ii), 8
U.S.C. 1182(a)(9)(B)(ii) to deem DACA recipients, like other deferred
action recipients, to be within ``a period of stay authorized by the
[Secretary]'' and, thus, not accruing unlawful presence for purposes of
inadmissibility under INA sec. 212(a)(9)(B).
---------------------------------------------------------------------------

\216\ Nor does DHS's interpretation address similar terms. For
example, it is unlawful for an ``alien [who] is illegally or
unlawfully in the United States'' to possess a firearm or
ammunition. See 18 U.S.C. 922(g)(5)(A). Multiple courts have
concluded that this criminal bar encompasses DACA recipients. See,
e.g., United States v. Lopez, 929 F.3d 783, 786-87 (6th Cir. 2019)
(in noting that DACA recipient was an ``alien illegally or
unlawfully in the United States for purposes of section
922(g)(5)(A),'' court distinguished 8 U.S.C. 1611(b)(2-4),
concerning specific public benefits for individuals who are
``lawfully present,'' and 8 U.S.C. 1182(a)(9)(B)(ii), concerning
``unlawful presence'' for inadmissibility purposes); United States
v. Arrieta, 862 F.3d 512, 515-16 (5th Cir. 2017) (holding that DACA
did not confer a legal status for purposes of section 922(g)(5)).
---------------------------------------------------------------------------

DHS has further considered the district and appellate court
opinions concerning DHS's authority to deem DAPA or DACA recipients
``lawfully present'' for certain purposes, and respectfully disagrees
with those decisions for the reasons explained in the proposed
rule.\217\
---------------------------------------------------------------------------

\217\ 86 FR 53761-53762.
---------------------------------------------------------------------------

Support for ``Lawfully Present'' and ``Unlawful Presence'' Provisions,
but With Suggested Modifications
Comment: A commenter stated that granting ``lawful presence''
instead of ``lawful status'' (as was the case under ``previous
rulings,'' according to the commenter) would establish different rules
and protections for DACA recipients.
A commenter who commended DHS for its proposal to continue treating
DACA recipients as ``lawfully present,'' and for clarifying the
distinction from ``lawful status,'' also requested that DHS include
details in the final rule explaining that DACA recipients would be
eligible for any other forms of Federal benefits for lawfully present
noncitizens associated with future laws or prospective legislative
immigration reform (e.g., any such benefits contained in the proposed
Build Back Better legislation if it is enacted). Multiple other
commenters similarly requested that the final rule explicitly establish
that DACA recipients, considered lawfully present and eligible to
receive certain Social Security benefits, would be eligible for title
IV Federal student aid programs like Pell grants, work study, and
direct loans under proposed legislation's extension of eligibility for
these programs to individuals with deferred action and TPS. The same
commenters urged DHS to allow for flexibility for DACA recipient
students to demonstrate title IV eligibility, if that

[[Page 53210]]

eligibility is extended to DACA recipients and those who qualify.
Several commenters expressed support for granting lawful presence
to DACA recipients to confirm Social Security eligibility, with one
commenter citing research \218\ demonstrating that DACA recipients make
significant contributions to Social Security and Medicare and that
ending DACA could result in a $39.3 billion loss of Social Security and
Medicare contributions over a 10-year period. The commenter further
remarked that many States require lawful presence for public benefit
eligibility. Citing research, a commenter similarly stated that the
Social Security and Medicare trust funds would be significantly
diminished if DACA recipients are not contributing to the program. The
commenter also said that, because Social Security requires workers to
reach retirement age with at least 10 years of covered work experience,
some DACA recipients may pay Federal Insurance Contributions Act and
Medicare taxes without ever receiving benefits. One commenter stated
that the designation of lawful presence was important for DACA
recipients to qualify for certain State benefits, referencing New York
State regulations affording professional licensing eligibility to those
``not unlawfully present.''
---------------------------------------------------------------------------

\218\ See Maga[ntilde]a-Salgado and Wong (2017).
---------------------------------------------------------------------------

Several of the commenters noted above, as well as other commenters,
suggested that additional clarity was needed to assist State and
Federal agencies in making decisions about benefit eligibility,
including confirmation from USCIS that: (1) DACA recipients are
authorized to be present in the United States during the period of
their grant; (2) DACA recipients' grant of relief is identical to
relief associated with any other person granted deferred action; and
(3) individuals granted deferred action are permitted to establish
domicile in the United States. Commenters also requested that the rule
include language stating that individuals granted deferred action are
not precluded by Federal law from establishing domicile in the United
States, as this would assist the recipients in seeking certain State
benefits. One such commenter also requested that DHS clarify that
individuals with lawful presence are not prohibited from establishing
domicile in the United States, stating that DACA recipients should be
treated the same as other individuals with deferred action and
suggesting that DHS take additional steps to communicate this
clarification to other Federal and State agencies. The commenter said
that confusion over whether DACA recipients can establish domicile in
the United States would result in DACA recipients' exclusion from
certain benefits and programs that are available to other individuals
with deferred action (citing eligibility for residential property tax
relief in South Carolina as an example of such exclusion).
Commenters noted that USCIS' posted Frequently Asked Questions
(FAQs) on DACA \219\ include the following helpful clarifications that
have assisted State and Federal agencies in making decisions about
eligibility for services and public benefits that they control:
---------------------------------------------------------------------------

\219\ USCIS, Frequently Asked Questions, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions (last updated Aug. 31,
2021) (hereinafter DACA FAQs).

While distinguishing lawful presence from lawful
status, USCIS clarifies that ``[a]n individual who has received
deferred action is authorized by DHS to be present in the United
States, and is therefore considered by DHS to be lawfully present
during the period deferred action is in effect.'' (A. 1) [of the
DACA FAQs]
USCIS explains that ``[t]he relief an individual
receives under DACA is identical for immigration purposes to the
relief obtained by any person who receives deferred action as an act
of prosecutorial discretion.'' (A. 3) [of the DACA FAQs]
USCIS confirms that ``[i]ndividuals granted deferred
action are not precluded by federal law from establishing domicile
in the U.S.'' (A.5) [of the DACA FAQs]

By contrast, one such commenter said that some language in the proposed
rule's preamble could contribute to confusion, such as the notation
that the term lawful presence does not confer authorization or
authority to remain in the United States, and gave examples at 86 FR
53740 and 53773. The commenter stated it assumed that the agency meant
``beyond the period of the grant'' or that ``individuals granted DACA
do not have an absolute right to remain, and . . . may nevertheless be
removed under certain conditions.'' The commenter recommended that DHS
clarify that its interpretation of lawful presence is at least as broad
as under previous DACA guidance. This commenter, as well as others,
requested that DHS and USCIS confirm that individuals granted DACA are
federally authorized to be present in the United States, and are
considered to be lawfully present during the period of their grant;
relief that DACA recipients receive is identical for immigration
purposes to the relief obtained by any other person granted deferred
action; and individuals granted deferred action are not precluded by
Federal law from establishing domicile in the United States.
Commenters expressed support for the proposal's confirmation that
DACA recipients would be considered lawfully present and its statement
that DHS has treated persons who receive a period of deferred action
under DACA like other deferred action recipients for purposes of
establishing lawful presence. The commenters stated that this would
ensure DACA recipients are eligible for Social Security and do not
accrue unlawful presence toward the 3- and 10-year bars. The commenters
further suggested that additional clarification was needed to ensure
other Federal and State agencies understand the implications of a DACA
grant, its relation to deferred action for other individuals, and any
related interpretations of immigration law, citing DACA recipients'
exclusion from certain healthcare benefits under the ACA as one example
of the need for additional clarity.
One commenter recommended that DHS work with the HHS to extend
health insurance coverage under the ACA to DACA recipients, stating
that a lack of eligibility for ACA marketplace coverage contributes to
higher uninsured rates among DACA recipients. Another commenter
expressed support for providing access to affordable healthcare for all
individuals, including DACA recipients, and urged DHS to ensure that
DACA recipients are not excluded from purchasing subsidized health
coverage through the ACA marketplace. Additional commenters agreed and
recommended that DHS align the definition of ``lawfully present'' with
eligibility requirements for certain health coverage programs to allow
DACA recipients to access such programs and avoid disparate treatment.
The commenters expressed concern about HHS' exclusion of DACA
recipients from participation in Medicaid, the Children's Health
Insurance Program (CHIP), and the ACA health insurance marketplace and
said that other individuals with deferred action are eligible for such
programs. The commenters questioned why DACA recipients are excluded
from these important health programs and, citing research, said that
participation in Medicaid is associated with higher educational
attainment and greater financial stability. The commenters recommended
that DHS clarify the definition of ``lawfully present'' to ensure DACA
recipients are not excluded from Medicaid, CHIP, and subsidized health
insurance through the ACA marketplace.

[[Page 53211]]

Citing research demonstrating the importance of access to
healthcare for vulnerable immigrant populations, including immigrant
women, a commenter also urged DHS to ensure that DACA recipients are
eligible for all public benefits available to similarly situated
immigrants, including Medicaid, CHIP, and subsidized health coverage
through the ACA marketplace. The commenter said that access to
healthcare is a critical equity consideration that the agency must
consider in complying with Executive Order (E.O.) 13563 and its focus
on promoting equity and fairness, and it urged DHS to ensure that DACA
recipients are entitled to the same benefits as all other individuals
considered ``lawfully present.''
A commenter recommended that DHS grant deferred action
retroactively to erase periods of unlawful presence accrued prior to
confirmation of deferred action, particularly noting that such
retroactivity should cover any period since June 15, 2007, because DACA
requestors must establish that they have resided in the United States
since that date. The commenter further noted that USCIS has the
authority for such retroactive application of deferred action and gave
as an example current practice that permits USCIS to grant ``nunc pro
tunc'' reinstatement of status to individuals who have filed untimely
Extension or Change of Status applications, meaning that unlawful
presence is erased because the applicant is considered to have been in
status the whole time.
Response: DHS acknowledges and appreciates the many supportive
comments on the proposed rule's two provisions regarding lawful
presence, as well as the recommendations and suggestions for
modifications. With respect to the comment that the rule only provides
lawful presence to DACA recipients instead of the previous rulings'
grant of lawful status, which the commenter indicated would institute
different rules and protections for DACA recipients, DHS notes that
DACA has never conferred lawful immigration status on recipients as the
commenter mistakenly asserts, nor has any other grant of deferred
action. DHS does not have the legal authority to deem deferred action
recipients to be in a lawful immigration status by virtue of such
deferred action. As discussed elsewhere in this rule and in the
preamble to the proposed rule at Section IV.B, deferred action is not a
lawful immigration status but rather is only an exercise of
prosecutorial discretion not to remove a noncitizen from the United
States for a designated period of time. Thus, DHS declines to modify
the rule to provide protections to DACA recipients akin to those with
lawful status.
DHS also declines to adopt the suggestion of the commenter who
urged that the rule allow for the retroactive elimination of any
unlawful presence time between June 15, 2007, and an individual's
approval for DACA because the individual had to demonstrate continuous
residence in the United States since that date to obtain deferred
action under the DACA policy. The commenter likened this suggestion to
a noncitizen who is in a lawful nonimmigrant status but who files late
to extend or change that status to another nonimmigrant category and
who, if approved, is allowed ``nunc pro tunc'' reinstatement of
nonimmigrant status for the period between the initial status and the
changed or extended status. Unlike the person who files late to change
or extend a lawful nonimmigrant status and is approved, a DACA
recipient is not in a lawful immigration status that is amenable to
reinstatement ``nunc pro tunc,'' but rather enjoys a temporary period
in which DHS has chosen not to remove them from the United States for a
period of time in the future as an act of prosecutorial discretion.
Thus, deferred action is a forward-facing step; forbearance not to
remove a noncitizen for a period that already has passed would be
meaningless and incompatible with DHS's general deferred action
practices. For these reasons, DHS does not believe it may properly
erase a person's pre-DACA unlawful presence by beginning deferred
action from a date in the past.
Similarly, DHS is unable to adopt the suggestions of commenters to
specify that DACA recipients will be considered ``lawfully present''
for purposes of current or future proposed legislation regarding
noncitizens' eligibility for public benefits before such legislation is
enacted. Until legislation is enacted that authorizes DHS to define who
has lawful presence for particular purposes--as has occurred for the
purpose of receiving certain Social Security benefits,\220\ railroad
retirement benefits,\221\ and Medicare \222\--it is premature for DHS
to attempt to predict the final terms of such legislation and the
extent to which Congress may or may not authorize DHS to describe the
categories of noncitizens who may be eligible to apply for particular
public benefits. Other agencies whose statutes independently link
eligibility for benefits to lawful presence may have the authority to
construe such language for purposes of those statutory provisions.
---------------------------------------------------------------------------

\220\ 8 U.S.C. 1611(b)(2).
\221\ 8 U.S.C. 1611(b)(4).
\222\ 8 U.S.C. 1611(b)(3).
---------------------------------------------------------------------------

In response to commenters who recommended that DHS make clear that
DACA recipients are affirmatively authorized to be in the United States
during the period of their deferred action, DHS has plainly stated in 8
CFR 236.21(c) that the Department intends to forbear from removing DACA
recipients from the United States. This is consistent with the fact
that the DACA policy is an exercise of prosecutorial discretion and
does not confer lawful immigration status, affirmative authorization to
remain in the United States, or a defense to removal. In that sense,
DACA differs from a grant of lawful immigration status such as
permanent resident status, asylum, or TPS. At the same time and as
noted previously, DHS also views an individual's time as a DACA
recipient as ``a period of stay authorized by the [Secretary]'' under
section 212(a)(9)(B)(ii); therefore, while the individual has DACA,
there is no accrual of ``unlawful presence'' for inadmissibility
purposes. DHS believes that the rule is more precise and sufficiently
clear on this point as well. In response to the request that DHS
clarify that its interpretation of ``lawful presence'' in the rule is
at least as broad as its interpretation under prior DACA guidance, DHS
confirms that the rule reflects the same longstanding treatment of DACA
recipients as ``lawfully present'' for purposes described in 8 CFR
1.3(a)(4)(vi), and with regard to their nonaccrual of ``unlawful
presence'' for purposes of INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9)
while they have deferred action under DACA, as existed under DHS's DACA
policy prior to implementation of this rule.
In terms of whether DACA is ``identical relief'' to other forms of
deferred action, DHS agrees that forbearance from removal for a
designated period applicable to the individual is true for DACA
recipients as it is for all other deferred action recipients and that
EADs for all deferred action recipients, including DACA recipients, are
available based on a determination of economic need. However, DHS
declines to adopt the suggestion made by some commenters to label DACA
as ``identical relief'' to that provided to all other recipients of
deferred action because DHS believes that using such a label could
create confusion with respect to the bases for obtaining deferred
action and the conditions that may apply to an

[[Page 53212]]

individual's deferred action. For example, guidelines differ depending
on the category under which deferred action is provided, as well as
with respect to individual requests that are granted outside of special
policies.\223\ Different periods of deferred action also may be
provided, and conditions placed on the individual's deferred action may
vary. For these reasons, DHS declines to adopt the suggestions to
modify the rule to state that DACA is an ``authorization'' to remain in
the United States or that it is ``identical'' to all other forms of
deferred action.
---------------------------------------------------------------------------

\223\ See, e.g., Military Deferred Action (available to certain
relatives of certain active and former members of the military),
https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-families; Special Immigrant Juveniles--
Consideration of Deferred Action, 6 USCIS PM J.4 [G.1], https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf; VAWA--Deferred Action, 3 USCIS PM
D.5 [C.2], https://www.uscis.gov/policy-manual/volume-3-part-d-chapter-5.
---------------------------------------------------------------------------

The Department understands the concerns expressed by some
commenters regarding DACA recipients' ability to obtain State and local
public benefits that require applicants to demonstrate ``domicile'' in
a particular locality. Some commenters requested that the rule state
that Federal law does not prohibit DACA recipients from establishing
domicile while others urged an affirmative statement that DACA
recipients may establish domicile in the United States. Although the
Department knows of no Federal law that prohibits DACA recipients from
establishing domicile within the United States, the Department declines
to amend the text of the rule to address ``domicile'' explicitly
because doing so would be outside the scope of the rule, and Congress
has not directed the Department to provide guidance on or a definition
of ``domicile'' for any Federal, State, or local public benefit
purposes.
The Department also understands and respects the concerns expressed
by several commenters who requested that the rule clarify for Federal,
State, and local governments that DACA recipients are considered
``lawfully present'' for purposes of all public benefits that require
such presence for eligibility. However, absent a specific authorizing
law, the Department does not have the authority to mandate that other
Federal, State, and local departments and agencies provide benefits
that they administer to DACA recipients, even when DHS categorizes them
as ``lawfully present'' for certain discrete, limited purposes. Subject
to enacted laws, DHS may only determine the categories of immigration
status or other authorization (or lack of either) that apply to
noncitizens. Through programs such as Systematic Alien Verification for
Entitlements, DHS thus informs participating benefit-administering
agencies of the immigration category that may apply to a particular
person. DHS does not, however, establish the eligibility rules or
administer Federal, State, or local public benefits such as those that
provide for health, housing, food, education, and general welfare.
Other departments and agencies, such as HHS, the Social Security
Administration, and the U.S. Department of Agriculture, have those
responsibilities.
With limited exceptions, noncitizens who are not ``qualified
aliens'' as defined in 8 U.S.C. 1641 are not eligible for Federal
public benefits.\224\ Deferred action recipients are not encompassed
within the definition of ``qualified alien.'' As such, they are
generally excluded from receipt of Federal public benefits.\225\
Congress, however, did expressly except certain Federal benefits from
the restrictions in 8 U.S.C. 1611(a). With respect to certain title II
Social Security benefits, railroad retirement benefits, railroad
unemployment insurance, and Medicare, Congress provided that the
restrictions shall not apply to noncitizens who are ``lawfully
present'' as determined by the Attorney General (now the
Secretary).\226\ Other agencies whose statutes independently link
eligibility for benefits to lawful presence may have the authority to
construe such language for purposes of those statutory provisions. For
instance, any future revision of this determination for Medicaid, CHIP,
or with respect to the ACA Exchange and private market programs would
need to be made by HHS. DHS has determined that addressing the
eligibility of DACA recipients for additional benefits is beyond its
legal authority and the scope of this rule.
---------------------------------------------------------------------------

\224\ See 8 U.S.C. 1611(a).
\225\ There are exceptions for certain emergency, in-kind, and
other benefits, as well as other limited exceptions to PRWORA's
restrictions. See 8 U.S.C. 1611(b)(1).
\226\ See 8 U.S.C. 1611(b)(2), (3), and (4).
---------------------------------------------------------------------------

Commenters also recommended that DHS work with other Federal
agencies, such as HHS, to amend their guidance and regulations to
clarify that DACA recipients are eligible for benefits under the ACA.
DHS acknowledges the suggestion, but these topics are also beyond the
scope of this rulemaking.
4. Discretionary Determination (Sec. 236.22)
a. General Comments on Discretionary Determination
Case-by-Case Determination and Discretion
Comment: A commenter said that DACA recipients should be vetted on
a case-by-case basis. Another commenter stated that requestors should
be considered for forbearance only when considered on a true case-by-
case basis, which the commenter said would ease pressure on USCIS and
provide a more consistent application of law. Similarly, a commenter
said that DACA has a very low denial rate and that officers rarely ask
for additional evidence to demonstrate that requestors have good moral
character. The commenter added that the broad criteria for DACA ``leave
almost no room for officers to exercise discretion.'' Another commenter
said that the proposed rule deprives ICE and CBP officers of
discretion. The commenter stated that the proposed rule suggests that
officers may be able to make a determination without necessitating
further investigation, but it is unclear how an officer could have used
their discretion without a full picture of the individual's immigration
and criminal history.
Response: DHS acknowledges commenters' concerns but disagrees with
the suggestion that DACA requests will not be assessed on a case-by-
case basis as a result of this rule or that the threshold criteria are
so broad that officers are limited in their ability to exercise
discretion. On the contrary, the rule explicitly requires case-by-case
assessments. At new 8 CFR 236.22, DHS lays out several threshold
discretionary criteria that USCIS will assess on a case-by-case basis
as a review of the totality of the circumstances. DHS proposed in the
NPRM that, even when a request meets all threshold criteria, 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.\227\ DHS
is retaining this same approach to the individualized case-by-case
assessment in this final rule and is now codifying it at new 8 CFR
236.22(b) and (c).
---------------------------------------------------------------------------

\227\ 86 FR 53765.
---------------------------------------------------------------------------

Regarding one commenter's concern that the NPRM deprives ICE and
CBP officers of discretion by suggesting that an officer may be able to
make a determination without necessitating

[[Page 53213]]

further investigation, there appears to be some confusion as to DHS's
intended meaning. The language referenced pertains to how the
regulatory provisions would ``fortify DHS's prioritized approach to
immigration and border enforcement'' by streamlining the review
required when DHS officers encounter a DACA recipient.\228\ As USCIS
already will have reviewed the individual's immigration and criminal
history and made the individualized determination to defer enforcement
action against that individual according to the DACA policy, it may be
duplicative for an officer to conduct a full review again in
circumstances such as the primary inspection booth at a checkpoint. As
the NPRM further notes, and as discussed in Section II.A.8, 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.\229\ However,
where warranted by the evidence, ICE and CBP may find that certain DACA
recipients no longer merit a favorable exercise of enforcement
discretion. DHS therefore declines to make any changes in response to
these comments.
---------------------------------------------------------------------------

\228\ 86 FR 53752.
\229\ Id.
---------------------------------------------------------------------------

Comment: A commenter expressed due process and notice concerns
related to the discretionary case-by-case assessment as part of a
totality of circumstances review. The commenter wrote that USCIS would
be wise to attach an automatic right of judicial review to their DACA
determinations. Given that Section IV.C of the proposed rule clearly
lays out the factors the agency is to consider when making its
decision, the commenter said that a reviewing court should have no
problem assuring the agency action is not arbitrary or capricious.
Response: Because deferred action is by its nature an exercise of
prosecutorial discretion and not a benefit, USCIS will not provide for
the right to file an administrative appeal or allow for the filing of a
motion to reopen or motion to reconsider.\230\ Furthermore, an act of
prosecutorial discretion is generally not reviewable by the courts. As
discussed in the NPRM, USCIS may, however, reopen or reconsider either
an approval or a denial of such a request on its own initiative.\231\
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 applicable form of relief or protection under the immigration
laws.\232\ DHS therefore declines to make any changes in response to
this comment.
---------------------------------------------------------------------------

\230\ See new 8 CFR 236.21(b) and 236.23(c)(3).
\231\ 86 FR 53769.
\232\ See new 8 CFR 236.22(d) and 236.23(c).
---------------------------------------------------------------------------

USCIS Discretion To Deny if Criteria Are Met
Comment: Several commenters discussed the proposed rule's
indication that, under the totality of circumstances review, even if
all the threshold criteria are found to have been met, the adjudicator
has discretion to deny deferred action 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.
One commenter objected to using a totality of the circumstances test in
lieu of granting those requests that meet threshold criteria and
enumerated guidelines, even if this changes existing processes. The
commenter stated that there would be too much room for adjudicator
discretionary bias in the proposed process, particularly since there is
no guidance or definition provided in the NPRM for determining the
totality of the circumstances. Another commenter expressed concern
about the proposed rule's layering of discretion and said the two-step
process would be vulnerable to future abuses of discretion to deny
requests. The commenter said that discretion is already exercised in
devising eligibility requirements and the protocols for assessing them,
thus there is no need for a final denial override that would discourage
requestors out of concern that, even if fully eligible, they could be
denied. Another commenter stated that, per the proposed rule, a
requestor who has filed the proper documents, paid the required fees,
and has a college degree may be denied DACA if USCIS, within its
discretion, decides that the requestor's totality of positive
contributions do not outweigh, for example, a one-time instance of
driving under the influence.
Another commenter stated that they supported instituting the DACA
policy via regulation but opposed empowering officers to deny, in an
exercise of discretion, DACA requests that otherwise meet threshold
criteria for a grant of deferred action. This commenter stated that the
language of proposed 8 CFR 236.22(c) does not provide clarity to
requestors or to USCIS adjudicators as to what circumstances would be
considered nor what would make deferred action inappropriate, and the
proposed rule preamble provides little additional clarity. The
commenter said that the proposed rule states only that: (1) USCIS would
review the totality of the circumstances to see if there are any
negative factors that would make the grant of deferred action
inappropriate or that outweigh the positive factors; and (2) foreign
convictions, minor traffic offenses, and other criminal activity
outside of what is described by proposed 8 CFR 236.22(b)(6) would be
considered in the totality of the circumstances. However, the commenter
said, there is no further guidance in the proposed rule as to what, if
any, additional factors should be considered nor how to analyze any of
these factors in making a determination to grant deferred action.
Contrary to DHS's explanation that the threshold discretionary
requirements in combination with the exercise of discretion is meant to
promote consistency and avoid arbitrariness in grants of deferred
action, the commenter wrote, applying discretion to these adjudications
would have the opposite effect.
The commenter also said that the absence of clarity in the proposed
rule combined with USCIS' policy guidance for applying discretion in
adjudications would result in inconsistent and arbitrary grants of
deferred action for those individuals who otherwise meet the threshold
requirements for DACA. The commenter discussed the USCIS Policy Manual
guidance on discretion, stating that it would be the primary tool used
by adjudicators in making a discretionary analysis. The commenter said
that: (1) the methodology for discretionary analysis set out in the
USCIS Policy Manual would result in arbitrary and capricious decisions
that are inconsistent and reliant on biased assumptions; (2) the Policy
Manual does not provide clear guidelines for adjudication; (3) the
Policy Manual's guidance regarding the weighing of discretionary
factors is confusing and contradictory; and (4) amendments to the
Policy Manual were based on a discriminatory and illegal animus toward
immigrants and were intended to further undermine the function of the
lawful immigration system.
Response: DHS maintains the position expressed in the proposed rule
and codified at new 8 CFR 236.22(c) that it is appropriate for
adjudicators to have discretion to deny a deferred action request, even
if they have found that the requestor meets all of the threshold
criteria, if in their judgement the case presents negative factors that
make the grant of deferred action inappropriate or

[[Page 53214]]

that outweigh the positive factors.\233\ As discussed in the NPRM,
case-by-case assessment is a longstanding feature of deferred action
determinations, inherent in the exercise of discretion, that can
provide important benefits in cases where the balance of the
circumstances and relevant equities suggests a result that could not
have been codified in prior policy guidance.\234\ While DHS recognizes
that there may be costs associated with maintaining adjudicator
discretion to deny a request even where the requestor meets the
threshold eligibility guidelines at new 8 CFR 236.22, DHS has concluded
that this approach maintains an appropriate balance of guidelines and
discretion, which serves to promote consistency and avoid arbitrariness
in these determinations.
---------------------------------------------------------------------------

\233\ See 86 FR 53765.
\234\ See id.
---------------------------------------------------------------------------

DHS appreciates the commenter's feedback on the USCIS Policy Manual
but declines to address it further as the Policy Manual is outside of
the scope of this rulemaking. DHS is therefore not making any changes
in response to these comments.
b. Threshold Criteria
Evidentiary Requirements for Threshold Criteria
Comment: A commenter recommended that DHS drastically reduce the
evidentiary burden on DACA requestors. The commenter stated that
currently, DHS requires initial requestors to produce decades' worth of
evidence that is particularly difficult to gather given the age of many
individuals when they entered the United States. The average age of a
DACA recipient at the time they entered the country is only 7 years
old, and given the length of time since then, the commenter said,
primary evidence documenting physical presence may be impossible to
obtain. Additionally, the commenter wrote that DHS has not publicly
expressed any fraud-related concerns with affidavits. The commenter
stated that with wildly varying Federal enforcement regimes in place,
and many States creating hostile environments for noncitizen residents,
immigrant families often go to great lengths to prevent their children
from interacting with these systems, denying them the very proof that
DHS currently requires to demonstrate DACA eligibility. In addition,
the commenter said, whatever proof may have existed is rarely
maintained long enough to be accessible, as many institutions maintain
records for only 5 years or less before destroying them, and records
are rarely digitally stored. The commenter concluded that establishing
a standard of review that recognizes this reality and ensures that the
broadest possible eligible population is able to request and receive
DACA is in the interests of DHS, potential requestors, their
communities, and the advocates who are devoting significant resources
to helping them submit requests.
Referencing the proposed rule's discussion in the preamble of
primary and secondary evidentiary requirements, a commenter stated that
the provisions continue to reflect a first world understanding of
documentation from countries of origin and the ability of a DACA
requestor to find and obtain these records. The commenter said the
provisions would benefit from greater clarification on further examples
of circumstantial documentary evidence that DHS would accept as part of
DACA requests from individuals who do not benefit from the powerful
consular help that a country of origin like Mexico provides. Other
commenters said that many farmworkers and their families may have
difficulty accessing identification documents, such as birth
certificates, as births may not be registered or may be registered
incorrectly. Considering these concerns, the commenters encouraged DHS
to maintain a flexible approach regarding documentation.
Response: DHS appreciates commenters' concerns and acknowledges
that some DACA requestors may face substantial challenges in obtaining
or providing primary or secondary evidence demonstrating they meet the
threshold criteria. Recognizing these challenges and that the evidence
available may vary from requestor to requestor, DHS is declining to
specify in detail in this preamble and will not include in regulatory
text the types of evidence that may or may not be sufficient to meet
the threshold criteria for DACA, to avoid creating a list that may
unintentionally be construed as exhaustive or limiting to adjudicators
or requestors.
The DACA requestor has the burden to demonstrate that they meet the
threshold criteria by a preponderance of the evidence.\235\ Under the
preponderance of the evidence standard, the sufficiency of each piece
of evidence is 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.\236\ DHS believes this standard provides an appropriate balance
between ensuring that deferred action under the DACA policy is extended
to the intended population and retaining a threshold that the evidence
show that the facts are more likely than not to be so. This also has
been the standard of proof for DACA requests since the initiation of
the DACA policy, and it is the standard of proof applicable to
immigration benefit adjudications as well, unless otherwise specified.
DHS is therefore retaining the preponderance of the evidence standard
at new 8 CFR 236.22(a)(3).
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\235\ See 86 FR 53766; proposed 8 CFR 236.22(a)(3).
\236\ Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).
---------------------------------------------------------------------------

Consistent with longstanding practice and as proposed in the
preamble of the NPRM, DHS will accept either primary or secondary
evidence to determine whether the DACA requestor meets the threshold
criteria. As used in this final rule, primary evidence means
documentation, such as a birth certificate, that, on its face, proves a
fact. Secondary evidence means other documentation that could lead the
reviewer to conclude that it is more likely than not that the fact
sought to be proven is true. In response to a commenter's request that
DHS provide greater clarification of what may constitute qualifying
secondary evidence, DHS is expanding here on the examples provided in
the NPRM preamble, but cautions that these examples are not meant to be
exhaustive. Such examples of secondary evidence may include baptismal
records issued by a church or school records with a date of birth
showing that the DACA requestor was born at a certain time, rental
agreements in the name of the DACA requestor's parents, or the listing
of the DACA requestor as a dependent on their parents' tax return to
demonstrate periods of residence in the United States. Secondary
evidence may, but does not necessarily, require corroboration with
other evidence submitted by the requestor. DHS will evaluate the
totality of all the evidence to determine if the threshold criteria
have been met.
Affidavits
Comment: A commenter urged DHS to reduce barriers preventing people
from receiving relief and to ensure the policy is accessible by
continuing to accept affidavits. Another commenter suggested that DHS
should incorporate into the final rule expanded ways for requestors to
prove that they meet the eligibility criteria, including giving more
weight to sworn affidavits and

[[Page 53215]]

letters for periods of continuous residence and proof of entry.
Another commenter stated that, if DHS publishes the proposed rule
as is, it should clarify that affidavits will be accepted as evidence
for all the eligibility requirements, including physical presence,
continuous residence, and lack of lawful status. The commenter said
that this policy should be codified in regulation, such as through a
separate evidentiary section in 8 CFR 236.22. The commenter wrote that
this regulation could adopt the ``any credible evidence'' standard used
in other areas of immigration law, with which immigration practitioners
are familiar, thus creating much-needed flexibility.
A joint comment also stated that DHS should demonstrate increased
flexibility in allowing requestors to meet documentation requirements,
commenting that farmworkers and their family members face extreme
difficulty meeting the documentation requirements of DACA. To help
remedy this issue, the commenter urged DHS to provide that affidavits
would be accepted as secondary evidence for all requestors at all
stages of their request and to not require supplemental documents
beyond affidavits, as that undermines requestors who do not have other
forms of documentation. Another commenter said that DHS could improve
access to DACA by including references to sworn affidavits as
acceptable evidence, accepting affidavits as proof of satisfying that
the requestor came to the United States before reaching their 16th
birthday, and accepting affidavits from the requestors themselves.
Response: DHS acknowledges commenters' concerns regarding the
challenges some DACA requestors face in obtaining primary and secondary
evidence to demonstrate eligibility under the threshold criteria.
However, as discussed in the response above, DHS is declining to
specify in detail in this rule the types of evidence that may or may
not suffice to meet the threshold criteria for DACA, to avoid creating
a list that may be unintentionally viewed as exhaustive or limiting to
adjudicators or requestors. DHS therefore declines the commenter's
suggestion to create a separate evidentiary section within new 8 CFR
236.22.
As stated in the NPRM and consistent with longstanding practice,
while there are certain circumstances in which affidavits may be
submitted in lieu of primary or secondary evidence, affidavits are
generally not sufficient on their own to demonstrate that a requestor
meets the DACA threshold criteria. This is reflective of DHS's desire
to balance that under the preponderance of the evidence standard, the
evidence must show that the facts asserted are more likely than not to
be so, while also allowing for some flexibility to account for
circumstances in which DACA requestors may not have access to primary
or secondary evidence for reasons beyond their control.
One circumstance in which affidavits may be used in lieu of primary
and secondary evidence is in support of a requestor meeting the
continuous residence requirement. Another circumstance is where there
may be a shortcoming in documentation with respect to brief, casual,
and innocent departures during the continuous residence period before
August 15, 2012. DHS will consider affidavits in these contexts in
recognition of the challenges DACA requestors may face in obtaining
primary or secondary evidence in these contexts, particularly for those
who may have been very young during the periods for which documentation
is needed.
Finally, as discussed in further detail below, in recognition of
the challenges faced in obtaining primary and secondary evidence for
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, DHS will consider affidavits in this context when
assessing whether the new initial requestor has submitted sufficient
evidence to demonstrate their residence in the United States at the
beginning of the continuous residence period.
(1) Arrival in United States Under the Age of 16
Support for the ``Arrival in United States Under the Age of 16''
Criterion
Comment: A few commenters generally supported maintaining the
criterion of arrival into the United States before age of 16. One of
these commenters said that this criterion would preserve the character
of DACA as a program for individuals brought to the United States as
children.
Response: DHS acknowledges commenters' support for maintaining the
threshold requirement of arrival in the United States prior to age 16.
DHS is retaining this threshold requirement in the final rule at new 8
CFR 236.22(b)(1), reflecting the Department's desire, as described in
the NPRM, to limit DACA to those who came to the United States as
children, and who therefore present special considerations that may
merit assigning lower priority for removal action due to humanitarian
and other reasons.
USCIS Should Revise the ``Arrival in United States Under the Age of
16'' Criterion
Comment: Many commenters suggested changing the criterion regarding
age at the time of entry to expand eligibility for DACA to those who
entered at or after the age of 16. A few commenters stated that the
threshold criterion of arrival before the age of 16 has left otherwise
eligible immigrant youth and students out of DACA and the critical
protection it offers. Another commenter said that these potential
requestors who would be left out either arrived after their 16th
birthday but before becoming an adult at age 18, or they had no proof
that they entered the United States before the age of 16 (e.g., their
birthday is in the summer, and they turned 16 before enrolling in
school). The commenter said that changing this criterion would ensure
that more immigrant youth are covered and would improve their ability
to cite more reliable evidence, such as school records, to prove their
entry.
While some of these commenters did not suggest a specific age for
modifying this threshold requirement, others urged DHS to change the
age of entry to be consistent with other laws that define childhood and
the age of majority. Many commenters suggested that DHS revise the
arrival age to 18, with some saying that a minor is legally defined as
someone under age 18. Some commenters stated that some of the proposed
legislation for Dreamers requires a requestor to have entered the
United States before the age of 18, including the DREAM Act, the
Health, Opportunity, and Personal Empowerment Act, and the American
Dream and Promise Act. A few commenters noted that the definition of an
unaccompanied child under Federal law references children without a
parent or legal guardian and without lawful immigration status who have
not yet reached the age of 18 (6 U.S.C. 279(g)(2)). A joint comment
submission also said that the cutoff age of 16 is contrary to other
U.S. societal norms regarding who is considered a child, such as
individuals under 18 not being allowed to vote, join the military, or
work in most hazardous occupations.
Some commenters urged DHS to expand the age of entry to 21, as INA
sec. 101(b)(1), 8 U.S.C. 1101(b)(1) defines a child as ``an unmarried
person under twenty-one years of age.'' A couple of commenters remarked
that this definition governs other types of immigration benefits (e.g.,
family-based

[[Page 53216]]

visa petitions and derivative status on a parent's application). One
commenter wrote that expanding the age to 21 would be consistent with
other humanitarian immigration classifications such as Special
Immigrant Juvenile (SIJ) classification. This commenter also cited the
United Nations (UN) definition of a child as under the age of 18, under
the UN Convention of the Rights of a Child, and definition of a youth
as between the ages of 15 and 24 years. A couple of commenters said
that DACA should be available to individuals who entered the United
States prior to 21 years of age, or at most 18 years of age, to ensure
that immigrant youth would be covered, as is the intended rationale for
DACA.
One commenter stated the rule perpetuates the inconsistency and
unfairness of an age-16 cap, and said that whether looking at ages of
majority, high-school enrollment ages, humanitarian definitions of
unaccompanied children, or the INA itself, defining children as under
18 or under 21 is more common and accurate. The commenter concluded
that retaining this threshold requirement would echo anti-immigrant
propaganda hostile to treating 16- and 17-year-old teenagers as
children.
One commenter stated that the proposed rule must offer a
justification and explanation for the age cutoff rather than
reiterating the policy from the Napolitano Memorandum, as there is no
way to determine that this decision of age 16 is not capricious.
Another commenter stated that DHS should be concerned that the proposed
rule would entirely exclude younger ``Generation Z'' undocumented
students. The commenter remarked that this would amount to an unforced
error and create bitterness and disillusionment among young people who
have lived in the United States most of their lives and have witnessed
the benefits of DACA.
Response: DHS acknowledges commenters' concerns about immigrant
youth who may be similarly situated to those in the DACA population but
who may not meet the criterion of having arrived in the United States
prior to their 16th birthday. However, as discussed elsewhere in the
NPRM and this rule, DHS has decided to focus this rulemaking on
preserving and fortifying DACA, as directed by President Biden's
memorandum. DHS has determined that the best approach to preserving and
fortifying DACA for those recipients--and their families, employers,
schools, and communities--who have significant reliance interests in
DACA is to codify the threshold criteria as articulated in the
Napolitano Memorandum.
DHS also recognizes that certain laws and intergovernmental bodies
may define a child as a person up to the age of 18 or 21.\237\ However,
DHS notes that there is precedent in immigration law for limiting
eligibility for a benefit to those under the age of 16, such as in the
context of adoption-related immediate relative petitions, orphan cases,
and Hague Convention adoptee cases--except in limited
circumstances.\238\ With this point in mind, and with an emphasis on
protection of reliance interests for this particular rulemaking, DHS
therefore disagrees that retaining the threshold requirement of arrival
in the United States under 16 years of age is arbitrary or capricious
and declines to make any changes in response to these comments.
---------------------------------------------------------------------------

\237\ See, e.g., INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1); 6
U.S.C. 279(g)(2); UN Convention on the Status of the Child.
\238\ See INA sec. 101(b)(1)(E), (F), and (G), 8 U.S.C.
1101(b)(1)(E), (F), and (G).
---------------------------------------------------------------------------

(2) Continuous U.S. Residence From June 15, 2007
General Concerns With the ``Continuous Residence'' Date
Comment: Some commenters provided personal anecdotes about
individuals not having access to DACA, and the opportunities that
accompany it, due to the June 15, 2007, threshold date. A couple of
commenters called the eligibility cutoff date arbitrary. Another
commenter also described the requirement for continuous residence as
arbitrary and wrote that the requirement would exclude many otherwise
eligible applicants.
Response: DHS acknowledges that, as a result of the continuous
residence date requirement, there are noncitizens who will not be
eligible to request deferred action under the DACA policy. However, in
the Department's effort to preserve and fortify DACA, it is maintaining
this threshold criterion in line with longstanding policy and the
Napolitano Memorandum.\239\ As discussed elsewhere in this rule and the
NPRM, this approach reflects the reliance interests of those who
already have received DACA and those similarly situated who have not
yet requested DACA, and their families, employers, schools, and
communities. As discussed above, DHS has determined the best way to
preserve and fortify DACA as directed by President Biden's memorandum
is to codify in regulation the longstanding criteria in the Napolitano
Memorandum. It is also informed by DHS's assessment that this and other
threshold criteria in the Napolitano Memorandum advance DHS's important
enforcement mission and reflects the practical realities of a defined
class of undocumented noncitizens who, for strong policy reasons, are
unlikely to be removed in the near future and who contribute
meaningfully to their communities, as discussed elsewhere in this rule.
Finally, as discussed in greater detail in Section II.A.7, DHS also is
retaining this requirement in recognition of the Department's desire to
avoid creating an incentive to migrate in order to attain eligibility
for deferred action under DACA. DHS is therefore not making any changes
in response to these comments.
---------------------------------------------------------------------------

\239\ See new 8 CFR 236.22(b)(2).
---------------------------------------------------------------------------

USCIS Should Revise the ``Continuous Residence'' Date
Comment: Many commenters discussed the exclusionary effects of the
continuous residence threshold and suggested that USCIS revise the 2007
date to a more recent date in order to include more individuals. One
commenter cited sources indicating that of the more than 450,000
undocumented students in higher education nationwide, less than half
are DACA-eligible. The commenter said that the DACA policy, without an
update to the eligibility criteria, would continue to beget this
counterintuitive outcome of leaving new generations of students without
avenues to success. Echoing these concerns, multiple legal services
providers offered examples of clients who would be negatively impacted
by the requirement. Other commenters asked that DHS consider either
removing the continuous presence requirement in the rule or adjusting
the date to provide relief for individuals who arrived in the United
States after 2007.
Other commenters stated that USCIS should preserve and fortify DACA
without turning back the clock to 2012. The commenters said that DACA's
original eligibility date was arbitrary, and USCIS could advance the
date to expand the number of eligible individuals through rulemaking,
thus strengthening the program's humanitarian impact while yielding
greater economic and social benefits. A commenter similarly said that
DACA's timeline still operates from the Napolitano Memorandum, which
has remained untouched despite the lack of progress in getting any
permanent legislative solutions passed through Congress. The commenter
said it is time to strengthen, not weaken, the program and protect
those who have grown up in the United States as the only home they have
ever known.

[[Page 53217]]

Many commenters said that USCIS should revise the ``continuous
residence'' date or ``continuous presence'' date to 5 years before the
publication or implementation of this final rule to expand eligibility
for DACA to younger individuals. Some of these commenters stated that
the 2007 continuous residence date was 5 years before President Obama
created DACA, and another remarked that this would be consistent with
other areas of immigration law, such as naturalization. Other
commenters similarly wrote that the continuous residence requirement
should be updated to be closer to the date of the final rule given that
the 2007 date is based on the 2012 issuance of the initial DACA policy.
Similarly, another commenter said that DHS should draw from the
original intent of DACA in 2012, which required a minimum continuous
presence of 5 years, not 14 or more, which is unduly burdensome. The
commenter said that Dreamers who spend their entire lives in the United
States would be left without any relief if DHS does not adjust the
continuous presence requirements to reflect the original intent of
President Obama's Executive order.
Commenters recommended a number of alternative continuous residence
dates, including June 15, 2017, January 21, 2021, or five years prior
to the publication of the final rule. Commenters stated that advancing
the continuous residence date would provide more young people with the
opportunity to succeed and contribute to society. One of these
commenters noted that, because individuals must be age 15 or over to
request DACA and have had continuous presence since June 15, 2007, by
June 15, 2022, the number of Dreamers eligible to apply would be locked
into place, not including those over the age of 15 who had not yet
applied. The commenter said that this would mean that the past 14 years
of Dreamers, many of whom would be entering high school in the coming
year, would not be eligible and would have no career prospects, which
the commenter said would go against the purpose of DACA.
A joint submission expressed support for a continuous presence date
5 years prior to publication of the final rule that would be updated
annually. Another commenter suggested that the continuous presence date
should be revised to 5 years prior to when a requestor is first
eligible for DACA.
Another commenter reflected this view, also stating that the rule
should provide that moving forward, the President should review this
requirement every 2 years to determine if it should be further
extended. Another commenter wrote that DHS should require no more than
3 years of continuous residence for DACA requestors.
Multiple commenters said that DHS should establish a rolling
continuing presence requirement. Some commenters said that there should
be a rolling date instead of moving the June 15, 2007 date forward,
specifically suggesting a 5-year continuous presence from the date of
the filing of the request for DACA consideration, which the commenter
said would allow DHS the ability to make case-by-case determinations
about its enforcement priorities as it relates to this population well
into the future. Commenters said that this would expand DACA to
populations of noncitizens who, but for their date of entry, would meet
the criteria for DACA, and one remarked that it would reduce the burden
of gathering 14 years of evidence of continuous residence. Another
wrote that this suggestion would focus eligibility on those with
significant ties to the United States, would not require routine
regulatory updates, and would preserve the disincentive to immigrate to
attain DACA protections.
Some commenters wrote that DHS should remove the requirement for
continuous presence prior to a certain date, and instead require
continuous presence prior to a certain age, as this would expand
protection to undocumented youth. Similarly, a commenter stated that
USCIS should eliminate the date requirement for continuous residence,
and instead require that a person has lived in the United States before
turning 18. The commenter stated that this would allow those originally
left out of the policy to request DACA, while easing the burden on
requestors who lack 14 years of continuous residence documentation.
Another commenter wrote that the continuous residence requirement
should be removed from the rule as long as applicants meet age and
uninterrupted residence requirements.
Response: While DHS appreciates the many suggestions of commenters
to modify or remove the continuous residence requirement to expand the
threshold criteria to include a broader population, as noted above, DHS
is maintaining this threshold criterion in line with longstanding
policy and the Napolitano Memorandum.\240\ As discussed elsewhere in
this rule and the NPRM, this approach reflects the reliance interests
of those who already have received DACA and those similarly situated
who have not yet requested DACA, and their families, employers,
schools, and communities. This approach is also consistent 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.\241\ While several commenters stated that advancing the date for
the start of the continuous residence requirement would not create an
incentive to migrate to attain deferred action under DACA, DHS believes
that advancing the date or eliminating the requirement would
potentially undermine the agency's enforcement messaging, but that by
keeping the dates from the 2012 Napolitano Memo, DHS is clear that it
is not incentivizing future migration flows. As discussed in the NPRM
and in additional detail in Section II.A.7 of this preamble, border
security is a high priority for the Department, and by codifying the
longstanding DACA policy, including the original continuous residence
date, DHS focuses this rulemaking on the problem identified in the
proposed rule and avoids the possibility of creating any unintended
incentive for migration.
---------------------------------------------------------------------------

\240\ See new 8 CFR 236.22(b)(2).
\241\ See new 8 CFR 236.22(b)(2).
---------------------------------------------------------------------------

Comment: A commenter wrote that DHS does not offer a rationale for
codifying the 2007 continuous residence date outside of stating that it
would not impact border security. The commenter stated that this
appears to be a reference to a false argument that DACA encourages
unauthorized border crossings. Another commenter also mentioned DHS's
decision to link the rationale for the continuous residence requirement
to border security concerns, writing that this justification is not
related to the agency's goals with DACA. The commenter wrote that DACA
was initially intended to recognize the positive economic and social
impacts of granting deferred action to young people brought to the
United States at least 5 years prior to the policy's creation. The
commenter stated that DHS does not explain why it only has considered
alternatives where that goal is frozen in the past, rather than using a
date such as analogously utilizing the date from other border policy,
November 1, 2020 (which has been included in recent enforcement
priorities memoranda), or implementing a 5-year cushion from the
present. The commenter said that merely invoking border security is an
insufficient justification, reasoning that moving the relevant dates
forward would increase the positive effects that DACA already

[[Page 53218]]

has had on communities and on the national economy.
Response: DHS disagrees with commenters that the Department's
strong interest in border security is an insufficient justification for
maintaining the continuous residence requirement as proposed in the
NPRM. It is also not DHS's only justification for codifying this
threshold criterion. As discussed above, DHS's desire not to undermine
its enforcement messaging, together with its adherence to the
President's directive to preserve and fortify the DACA policy; its
desire to protect the reliance interests of DACA recipients and those
similarly situated and their families, employers, schools, and
communities; and the Department's need to preserve finite resources,
all serve as the underlying bases for DHS's determination to maintain
this longstanding threshold requirement from the Napolitano Memorandum.
DHS also disagrees that retaining the continuous presence
requirement for DACA conflicts with recent enforcement policy,
including the September 30, 2021, DHS Guidelines for the Enforcement of
Civil Immigration Law (``Enforcement Guidelines''), which are currently
not in effect.\242\ While the Enforcement Guidelines highlight that
noncitizens who are ``apprehended in the United States after unlawfully
entering after November 1, 2020,'' will be considered a threat to
border security and are therefore a priority for apprehension and
removal, it also clarifies that any noncitizen ``apprehended at the
border or a port of entry while attempting to unlawfully enter'' as of
the effective date of the memorandum is also a priority for
apprehension and removal.\243\ This serves to reinforce the
Department's enforcement messaging while continuing to recognize that
it must prioritize its use of limited resources.
---------------------------------------------------------------------------

\242\ Memorandum from Alejandro N. Mayorkas, Secretary, DHS, to
Tae D. Johnson, Acting Director, ICE, et al., Guidelines for the
Enforcement of Civil Immigration Law (Sept. 30, 2021), https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf
(hereinafter Enforcement Guidelines). On July 5, the U.S. Court of
Appeals for the Sixth Circuit vacated a nationwide preliminary
injunction that a district court had entered against the Enforcement
Guidelines. Arizona v. Biden,--F.4th--, 2022 WL 2437870 (6th Cir.
July 5, 2022). The district court's injunction had previously been
stayed pending appeal. Nevertheless, the Enforcement Guidelines are
not currently in effect because, on June 10, another district court
vacated the guidance nationwide. On July 7, 2022, the Fifth Circuit
denied the government's request to stay the district court's
decision. Texas v. United States, 40 F.4th 205 (5th Cir. 2022). On
July 21, 2022, the Supreme Court denied the Government's application
for a stay of the district court's nationwide vacatur, but granted
the petition for writ of certiorari. United States v. Texas, No. 22-
58 (22A17), 597 U.S. __, 2022 WL 2841804 (July 21, 2022). The case
will be set for argument in the first week of the December 2022
argument session.
\243\ Id. at 4.
---------------------------------------------------------------------------

Comment: A commenter said that continuous residence should
incorporate a universal exception for brief, casual, and innocent
departures, not the unsupportable distinction between departures before
and after August 15, 2012. The commenter went on to state that such a
bright-line rule is severe and unfair as there are many reasons why an
individual may need to travel abroad and therefore interrupt their
continuous residence. Another commenter recommended that DHS consider
extraordinary circumstances when determining whether travel outside of
the United States disrupts continuous residence, reasoning that it is
unfair to deny DACA to an individual who would otherwise qualify, but
for a brief, casual, or innocent departure after August 15, 2012, that
resulted from an emergency or other exigent circumstance.
Response: DHS acknowledges that there may be reasons why a DACA
requestor would need to travel abroad during the continuous residence
period following August 15, 2012. However, it has been DHS's
longstanding policy to allow for exceptions to the continuous residence
period only for any brief, casual, and innocent travel prior to August
15, 2012, as this is the date of implementation of the DACA policy.
After this date, noncitizens who met the DACA criteria could plan
accordingly. Furthermore, those granted DACA after that date had the
ability to request advance parole for certain kinds of travel. Prior to
that date, in contrast, the DACA population may not have been eligible
for advance parole. DHS therefore declines to make the commenters'
suggested changes to the brief, casual, and innocent exception to the
continuous residence requirement.
Documentation Standards for the ``Continuous Residence'' Date
Comment: Multiple commenters suggested that USCIS reduce the
evidentiary burden and amount of documentation required to prove
continuous residence. One commenter suggested that the evidentiary
requirements in the proposed rule preamble could deter qualified
requestors from making requests under the policy and require
significant attorney and paralegal effort for nonprofits to prepare
successful requests. Another commenter said that noncitizen requestors
may fear interacting with systems that could provide the necessary
documentation and, as a result, would not have the appropriate evidence
of continuous residence. One commenter similarly wrote that some States
create hostile environments for noncitizen residents, resulting in
noncitizen families avoiding institutions that could provide acceptable
proof of physical presence in the country.
Other commenters stated that the continuous residence requirement
should be satisfied for the relevant year if a requestor submits one
document demonstrating residency during that particular year; or for
multiple years if a requestor submits one document covering multiple
years in the continuous residency period. Similarly, other commenters
said that DHS should clarify that: (1) there is no minimum number of
documents that a DACA requestor must provide per year to demonstrate
continuous residence; and (2) agency adjudicators must draw reasonable
inferences from the totality of the evidence of residence a requestor
provides, including presuming residence for a reasonable period of time
on the basis of point-in-time evidence that the requestor resided in
the United States on a particular date. For example, in some cases a
single document (such as a tax filing or lease) should suffice as
evidence of residence for an entire year. In other cases, the requestor
may show continuous residence over the course of a year by producing
three or four point-in-time documents such as date-stamped photos or
records of calls or purchases.
The commenter further stated that DHS should adopt a standard of
accepting ``any credible evidence'' of a requestor's continuous
residence. This standard of proof applies in other immigration contexts
where, the commenter wrote, as in the DACA policy, requestors or
applicants may experience significant difficulty obtaining primary or
secondary evidence. Examples of documents that the commenter said
should qualify as ``credible evidence'' include tax returns or tax
transcripts (which, according to the commenter, should establish a full
year of presence), a date-stamped photo of the requestor at a
recognizable location in the United States, credit or debit card
statements showing purchases made in the United States, insurance
policies, vehicle registrations, and cell phone records showing calls
placed from the United States. Another commenter also said that USCIS
should adopt a ``credible evidence'' standard for the various forms of
evidence that are allowed to show continuous residence, including
primary sources like school and work records, as well as

[[Page 53219]]

secondary sources like parent documentation, church records, and
affidavits. A commenter wrote that DHS should ensure that any credible
evidence of continuous residence is accepted and clarify that it will
draw reasonable inferences of residence and expand the use of
affidavits to do this.
One commenter stated that the proposed rule is vague as to how much
evidence requestors need to supply to prove continuous residence and
added that the requirement that requestors provide as much
documentation as ``reasonably possible'' is unclear. The commenter
wrote that this vagueness has resulted in advocacy groups creating
their own documentation requirement guidance with varying standards to
better inform requestors. Another commenter stated that the
requirements for documentation of continuous presence should be relaxed
during the COVID-19 pandemic, writing that DACA requestors may have
difficulty producing documentation from this period.
Response: DHS appreciates commenters' concerns and desire for
greater clarity on the evidentiary requirements for the continuous
residence requirement. DHS also acknowledges commenters' request for
additional leniency in the evidentiary requirements for continuous
residence, particularly in the context of the COVID pandemic and in
light of the challenges that noncitizens may face in obtaining primary
and secondary evidence. However, as discussed above, DHS is refraining
from specifying in detail in this rule the types of evidence that may
or may not be sufficient to meet the threshold criteria for DACA, to
avoid creating a list that may be unintentionally exhaustive or
limiting to adjudicators or requestors. DHS will take commenters'
suggestions under advisement in the development of any subregulatory
guidance on this subject.
Comment: A commenter said that it would be burdensome for initial
DACA requestors to find proof of their continuous residence in the
United States for 14 years, as well as burdensome for DHS officers who
must then review 14 years' worth of documentation. The commenter
recommended allowing requestors to show they have continuously resided
in the United States for a shorter period prior to submitting their
request, a length of time that they described as more reasonable. A
commenter wrote that the added benefit of a shortened continuous
residence requirement would be a reduced workload on legal service
providers and, as a result, increased access to immigration services
for requestors. Other commenters stated that updating the eligibility
dates would help prevent some of the documentation burdens of providing
proof of continuous presence.
Response: DHS acknowledges that retaining the continuous residence
requirement as proposed in the NPRM results in requestors needing to
provide documentation for a lengthy period, which may be burdensome for
some requestors. However, as stated above, DHS is maintaining this
threshold guideline in its efforts to preserve and fortify DACA, in
recognition of the particular reliance interests of those who already
have received DACA and those similarly situated who have not yet
requested DACA, and their families, employers, schools, and
communities, and consistent with the agency's longstanding enforcement
messaging. DHS declines to make any changes in response to these
comments.
Affidavits as Acceptable Evidence of Continuous Residence
Comment: Multiple commenters stated that various forms of evidence,
including affidavits attesting to presence, should be sufficient for
the continuous residence criterion. One commenter expressed support for
the use of affidavits as acceptable evidence for the start of the
continuous residence period in initial requests and for any other gap
in the continuous presence timeline, stating that as affidavits are
written under the penalty of perjury, they should be taken as accurate.
Another commenter stated that acceptance of affidavits is particularly
important because undocumented individuals, and particularly those who
are Indigenous and do not speak common languages, often do not have
access to the services and resources that would provide the kinds of
evidence DACA has previously required (e.g., bank accounts, valid
employment documents, evidence of property ownership).
Response: As discussed above and in the preamble of the NPRM,
affidavits may be submitted to demonstrate 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 will consider affidavits in this context in recognition
of the challenges DACA requestors may face in obtaining primary or
secondary evidence in these contexts, particularly for those who may
have been very young during the periods for which documentation is
needed. As described further below, DHS also will consider affidavits
when determining if the requestor has submitted sufficient evidence of
their residence in the United States at the start of the requisite
continuous residence period for new initial DACA requests where the
requestor was unable to access primary or secondary evidence due to
their young age at the time of entry to the United States.
Comment: Several commenters responded to DHS's request for 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. Multiple commenters expressed support for the use of affidavits
as acceptable evidence of the start of the continuous residence period
in initial DACA requests, as new requestors may have been very young at
the time of entry and may have difficulty obtaining primary or
secondary evidence. One commenter noted that this is a particular
challenge for those who arrived as very young children as they
typically do not enter the formal educational system until age 5 and
therefore often do not have formal primary documentation of their
presence in the United States until their enrollment in school.
Other commenters agreed that the use of affidavits should be
acceptable evidence of the start of the continuous residence period for
this population, but added that the use of affidavits should not be
limited to just those who were very young at the time of entry. One
commenter said expanding the use of affidavits is especially necessary
if DHS retains the continuous residence requirement as proposed in the
NPRM, as it would be difficult for requestors to demonstrate over 14
years of evidence for continuous presence. Similarly, another commenter
said that other requestors, not just those who were very young at the
time of entry, would face challenges in providing documentation.
Response: In the NPRM, DHS requested 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.\244\ Many commenters expressed support for this
suggestion, and as a result, DHS is clarifying in this final rule
preamble that it will consider affidavits when determining if the
requestor has

[[Page 53220]]

submitted sufficient evidence of their residence in the United States
at the start of the continuous residence period for new initial
requestors who were very young at the time of entry to the United
States. As one commenter noted, part of the challenge that those who
arrived in the United States as a young child may face is that they may
not have primary or secondary evidence of their physical presence until
they enter the formal educational system. As age 8 is the highest age
at which school attendance becomes compulsory within the United States,
DHS plans to extend the flexibility of submitting affidavits for the
start of the continuous residence period for new initial requestors who
arrived in the United States at or before age 8 in subregulatory
guidance.\245\
---------------------------------------------------------------------------

\244\ 86 FR 53767.
\245\ See Institute of Education Sciences, National Center for
Education Statistics, State Education Practices, Table 1.2.
Compulsory school attendance laws, minimum and maximum age limits
for required free education by state: 2017, https://nces.ed.gov/programs/statereform/tab1_2-2020.asp.
---------------------------------------------------------------------------

While DHS appreciates commenters' requests to further extend this
flexibility beyond new initial requestors who arrived as very young
children, as noted above, DHS will continue to consider affidavits 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.
Other Comments on the ``Continuous Residence'' Date
Comment: Multiple commenters urged an exception that would allow
deported individuals to meet the continuous residence requirement.
Several commenters also stated that the proposed rule would penalize
those individuals who complied with a legal directive to depart, noting
that those who are subject to a final order of removal but who do not
depart the United States remain eligible for DACA. The commenters
further noted that many of those who departed the United States under a
removal order did so as children, not on their own volition and without
understanding the legal context.
Response: DHS will consider deferred action under DACA for
noncitizens with final removal orders that have not been executed who
otherwise meet the threshold guidelines for DACA, as DHS may still
elect to exercise discretion as to whether to remove the noncitizen.
However, it has been long-standing practice and policy for DHS to
consider departures on or after June 15, 2007, due to an order of
exclusion, deportation, voluntary departure, or removal to interrupt
the continuous residence criterion. In such a scenario, continuous
residence would not only be interrupted by the departure, but the
noncitizen may also be barred from re-entering the United States for
years or permanently, further inhibiting any ability to comply with the
continuous residence requirement.\246\
---------------------------------------------------------------------------

\246\ See INA sec. 212(a)(9)(B)(i)(I) and (II), INA sec.
212(a)(9)(C)(i)(I); 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), 8 U.S.C.
1182(a)(9)(C)(i)(I).
---------------------------------------------------------------------------

(3) Physical Presence in United States
Support for ``Physical Presence in the United States'' Criterion
Comment: A commenter stated that physical presence within the
United States on the day that DACA was announced is an important
qualifier toward acceptance and ensures that the policy is not being
exploited by individuals entering the country after the fact to gain
deferred status.
Response: DHS acknowledges the commenter's support for maintaining
the threshold criterion of being physically present in the United
States on June 15, 2012, which is the date of issuance of the
Napolitano Memorandum. For the same reasons described above and as
proposed in the NPRM, DHS is codifying this criterion in this
rule.\247\
---------------------------------------------------------------------------

\247\ See new 8 CFR 236.22(b)(3).
---------------------------------------------------------------------------

USCIS Should Revise the ``Physical Presence in the United States''
Criterion
Comment: Numerous commenters suggested moving forward the physical
presence requirement from June 15, 2012, to expand eligibility for DACA
to a larger population. Several commenters stated that the date is
arbitrary and suggested removing this criterion or substituting it with
a larger timeframe.
Multiple commenters said that the rule should advance the date for
physical presence from June 15, 2012, to the date the final rule is
implemented. A commenter similarly suggested advancing the date of
physical presence to the date of final rule promulgation. Relatedly,
another commenter recommended that the date should be advanced to a
time closer to when individuals submit requests and recommended a time
period of 5 years from the date the rule is published or implemented. A
commenter recommended advancing the date for physical presence to at
least 5 years prior to submitting a request.
Another commenter recommended replacing the June 15, 2012, date
with a flexible standard that would expand access to those individuals
who otherwise would qualify for DACA. The commenter stated that this
recommendation would align with the enforcement priorities set by the
Secretary on September 30, 2021. A commenter suggested that a rolling
date approach and linking the requirement dates only to the date of the
request would reduce significant documentation burden on requestors and
increase consistency with the Napolitano Memorandum.
Several commenters recommended that DHS advance the physical
presence requirement to January 1, 2021, which matches the date
proposed in H.R. 6, the American Dream and Promise Act of 2021. Many of
these commenters stated that DHS has not updated the physical presence
date in 9 years, and there is nothing that prevents DHS from moving the
date in recognition that there are many Dreamers who arrived since the
original physical presence date who are otherwise eligible for DACA.
The commenter said that most individuals who would benefit would not be
enforcement priorities, and enabling these Dreamers to access higher
education and employment authorization through DACA would help them
contribute to their communities and would be in line with the intent of
the Napolitano Memorandum.
Similarly, a commenter suggested a revised date of January 20,
2021, stating that prescribing a date is at the discretion of USCIS and
the rule should be more inclusive. Other commenters recommended
updating the date to January 21, 2021, and another suggested updating
the date to June 15, 2020. One commenter stated that if the requirement
for physical presence is to be retained, the date should be based on
the age of the requestor when they immigrated to the United States,
rather than an arbitrary date from a policy memorandum.
A few commenters stated that the requirement of physical presence
on June 15, 2012, should be eliminated, but the requirement of physical
presence at the time of filing of the DACA request should be retained.
One of these commenters said that this would ensure that DACA remains
available only to individuals currently in the United States.
A commenter suggested that DHS grant deferred action and extend
eligibility for a work permit to individuals who arrived after June 15,
2012, but meet all other eligibility criteria and commit to teaching or
other public service. Given the teacher shortage and the need to
diversify the teaching profession, the commenter asked that
consideration be given to

[[Page 53221]]

other eligibility factors, including individuals who desire to teach.
Response: DHS appreciates commenters' suggestions to modify or
eliminate the physical presence requirement to expand eligibility for
DACA to a larger population. However, for the same reasons as discussed
in the continuous residence section above, DHS is maintaining this
threshold criterion in line with the longstanding DACA policy, under
which DACA is not available to individuals who were not physically
present on June 15, 2012, the date of issuance of the Napolitano
Memorandum.\248\ As discussed in the NPRM and elsewhere in this rule,
border security is a high priority for the Department, and by codifying
the longstanding DACA policy, including the physical presence
criterion, DHS is preserving its finite resources and avoiding the
possibility of creating any unintended incentive for migration.
---------------------------------------------------------------------------

\248\ See new 8 CFR 236.22(b)(3).
---------------------------------------------------------------------------

(4) Lack of Lawful Immigration Status
USCIS Should Eliminate the ``Lack of Lawful Immigration Status''
Criterion
Comment: Numerous commenters stated USCIS should eliminate the
threshold criterion that the requestor demonstrate that they were not
in a lawful immigration status on June 15, 2012. Many of these
commenters said that Documented Dreamers should be eligible to request
DACA, with some stating that these children know America as their
country, contribute to society, and should not be discriminated
against. Some of these commenters said that, absent a clear, legal
pathway to citizenship for Documented Dreamers, eligibility to receive
DACA would allow Documented Dreamers an opportunity to remain in the
United States with families, and access work and educational
opportunities. Another commenter stated that expanding eligibility for
immigrant youth in lawful status that meet all other DACA requirements
would provide an opportunity to end one of the artificial distinctions
that separates immigrant youth based on how they arrived in the United
States.
Many commenters said that the exclusion of Documented Dreamers is
unjust to children brought here lawfully by their parents and with
lawful status (e.g., H-4 dependents) who will have to self-deport when
they ``age out'' at 21 due to backlogs. Other commenters stated that,
by removing this requirement, thousands of young people who grew up in
the United States as dependents of nonimmigrant visa holders and had
lawful status on June 15, 2012, would be afforded protection.
Citing sources, several companies stated that many Documented
Dreamers follow in the footsteps of their parents and are leaders in
STEM fields, only to age out of status at age 21. The commenters said
this situation is untenable for these children and their employees on
high-skilled visas who face the prospect of separation from family
members if their child ages out before they receive a green card. Other
commenters stated that the proposed criterion would result in the loss
of valuable talent and potentially significant contributions to the
national economy by children of visa holders that age out. The
commenters also said this issue hinders U.S. companies' ability to
retain highly skilled workers and prevents the United States from
competing in the global economy, citing a source indicating the net
economic cost of losing Documented Dreamers is over $30 billion.\249\
Another commenter similarly stated that the parents of Documented
Dreamers have skills that allowed them to build U.S. technologies, and
every U.S. company has been able to be a leader in the world because of
these high-skilled immigrants who were given visas and did everything
right. The commenter said it is inhumane to ask Documented Dreamers to
self-deport because of an unfair policy.
---------------------------------------------------------------------------

\249\ See Dip Patel, Biden's Immigration Plan Must Reform DACA
to Cover Dreamers Whose Parents Are Here Legally, NBC News ``Think''
(Dec. 4, 2020), https://www.nbcnews.com/think/opinion/biden-s-immigration-plan-must-reform-daca-cover-dreamers-whose-ncna1248885;
David J. Bier, Huge Fiscal Benefits of Including Legal Immigrant
Dreamers in the DREAM Act, Cato at Liberty (Oct. 23, 2017), https://www.cato.org/blog/huge-fiscal-benefits-including-legal-immigrant-dreamers-dream-act.
---------------------------------------------------------------------------

Another commenter asked DHS to update this criterion to allow
individuals who had lawful status in the United States on June 15,
2012, but subsequently lost such status by the time of their request,
to qualify for DACA. The commenter said that this update could be
accomplished by changing the criterion to read: ``had no lawful status
at the time of filing of the request for DACA.'' The commenter further
remarked that Documented Dreamers have been raised in the United
States, went to school here, graduated from the U.S. education system,
and have gone on to become productive members of our society,
contributing greatly to the national economy and communities.
Response: DHS thanks commenters for highlighting the important
contributions of Documented Dreamers and agrees that many have strong
ties to the United States and may not have known another country as
their home. DHS also acknowledges that, as a result of the longstanding
``lack of lawful status'' criterion, Documented Dreamers are not able
to request deferred action under the DACA policy. However, as with the
other threshold criteria, in the Department's effort to preserve and
fortify DACA, DHS is maintaining this criterion in line with
longstanding policy.\250\ As discussed in Sections II.A and III.A of
this rule and in the NPRM, this approach reflects the Department's
acknowledgement of the reliance interests of those who already have
received DACA and those similarly situated who have not yet requested
DACA, and their families, employers, schools, and communities. It also
preserves limited agency resources while retaining the Napolitano
Memorandum's focus on providing forbearance from removal for those who
entered as children and did not have lawful status as of the time of
the creation of the policy.
---------------------------------------------------------------------------

\250\ See new 8 CFR 236.22(b)(4).
---------------------------------------------------------------------------

Comment: A commenter said that the lack of lawful status provision
is outrageous and strange in that it would require DACA requestors to
show they broke the law to be eligible. Some commenters said that it
would encourage further unauthorized immigration.
Response: As discussed above and in the NPRM, this rule reflects
the reality that DHS enforcement resources are limited, and that
sensible priorities for the use of those limited resources are vital.
It also 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. Furthermore, the rule
requires that a noncitizen have entered the United States prior to the
age of 16 and have been continuously present in the United States since
June 15, 2007, to meet the threshold criteria for DACA.\251\ As
discussed in Section II.A.7, the rule will not forbear the removal of
any noncitizen who arrived after that date. Because DHS has declined to
expand the threshold eligibility criteria and for the other reasons
discussed in Section II.A.7, DHS disagrees with commenters that the
``lack of lawful status'' criterion would incentivize further irregular
migration.
---------------------------------------------------------------------------

\251\ See 8 U.S.C. 236.22(b)(1) and (2).
---------------------------------------------------------------------------

Comment: Multiple commenters stated that the June 15, 2012 date was
arbitrary and that USCIS did not

[[Page 53222]]

sufficiently justify the reason for retaining the date. Several
commenters remarked along the same line that DHS should remove the
requirement that DACA requestors have no lawful status on that date in
order to qualify for deferred action under the DACA policy. One
commenter said that the proposed rule's claim that the requirement is
implicit in the Napolitano Memorandum's reference to children and young
adults who are subject to removal because they lack lawful immigration
status ignores the memorandum's key goal, which was to give
consideration to the individual circumstances of each case and not
remove productive young people to countries where they may not have
lived or even speak the language. Additionally, the commenter said that
there is precedent from previous deferred action initiatives, such as a
2009 deferred action initiative via memorandum for certain widows of
U.S. citizens.
Response: As several commenters point out, this explicit guideline
was not in the Napolitano Memorandum issued on June 15, 2012. However,
DHS disagrees that retaining this longstanding criterion conflicts with
the primary goals of the Napolitano Memorandum or the underlying
motivations in creating the DACA policy. To the contrary, this
requirement is consistent with the purpose of the policy, inasmuch as
it limits the availability of the policy to those individuals who were
subject to removal at the time the memorandum was issued, and therefore
reflects that the DACA policy is an enforcement discretion policy,
allowing DHS to focus its limited enforcement resources on higher
priority populations.\252\ While DHS recognizes that there are other
noncitizens, including Documented Dreamers, who will not be able to
request deferred action under the DACA policy as a result of DHS
codifying the lack of lawful immigration status criterion in this rule,
as discussed above, this approach reflects the Department's careful
balancing of its directive to preserve and fortify DACA, as well as the
reliance of DACA recipients and those who have not yet requested DACA
on the Napolitano Memorandum's criteria.
---------------------------------------------------------------------------

\252\ See 86 FR 53767.
---------------------------------------------------------------------------

Other Comments on the ``Lack of Lawful Immigration Status'' Criterion
Comment: A few commenters urged the Department to consider amending
proposed 8 CFR 236.22(b)(4) to remove the reference to June 15, 2012,
and only require a lack of lawful immigration status on the date of
filing the DACA request. Commenters suggested that this change would
better align with the intent of DACA to protect young people brought to
the United States as children and reduce the significant burden of
demonstrating lack of lawful status going back to 2012. Alternatively,
some commenters suggested other modifications to the date of the
criterion, including changing the date in proposed 8 CFR 236.22(b)(4)
to the date the final rule is promulgated, or using a period of time,
instead of a concrete date, in the provision.
Response: DHS appreciates commenters' suggestions and understands
that the criterion that the requestor demonstrate lack of lawful status
as of June 15, 2012, may present a burden to some requestors or result
in others being unable to meet the DACA criteria. However, for the
reasons stated above, DHS is retaining this threshold criterion as
proposed.
(5) Education
Support for the ``Education'' Criteria
Comment: A few commenters provided general support for the
educational criteria, stating that educational opportunities provide a
chance for DACA recipients to further their contributions to society.
While suggesting changes to other threshold requirements, another
commenter recommended no changes to the current educational
requirements.
Other commenters supported the codification of longstanding
standards for establishing when an individual is ``currently . . .
enrolled in school'' for purposes of the threshold criteria as proposed
at 8 CFR 236.22(b)(5). The commenter stated that doing so would offer
additional stability to DACA requestors as they consider their
educational options and assess the consequences of those decisions for
obtaining DACA.
Response: DHS appreciates commenters' support for the proposed
education guideline and agrees that educational opportunities provide a
chance for DACA recipients to further their contributions to society,
and agrees that maintaining the current standards will provide clarity
and stability for DACA requestors. As discussed in the NPRM, this
guideline also reflects DHS's recognition of the importance of
education and military service to the United States and the
Department's desire to support and promote such opportunities.\253\ In
accordance with longstanding DHS policy and the Napolitano Memorandum,
DHS is therefore codifying 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.\254\
---------------------------------------------------------------------------

\253\ 86 FR 53768.
\254\ See new 8 CFR 236.22(b)(5).
---------------------------------------------------------------------------

As proposed in the NPRM preamble, and in accordance with
longstanding DHS policy, to be considered enrolled in school for the
purposes of new 8 CFR 236.22(b)(5), the DACA requestor must be enrolled
in one of the following as of the date of the request:
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.\255\
---------------------------------------------------------------------------

\255\ 86 FR 53768.

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 nonprofit organizations. Under longstanding policy, which DHS
currently plans 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.\256\ As
discussed in the NPRM, 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

[[Page 53223]]

program.\257\ Therefore, enrollment in such a program will not be
considered to meet the ``currently enrolled in school'' guideline for
purposes of this final rule.
---------------------------------------------------------------------------

\256\ Id.
\257\ Id.
---------------------------------------------------------------------------

As noted above, DHS is also codifying the longstanding policy as
proposed in the NPRM that a DACA requestor also can meet the
educational guideline if they have graduated from high school or
received a GED.\258\ To meet this component of the educational
guideline, consistent with longstanding policy and as discussed in the
preamble of the NPRM, the DACA requestor will 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. 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.\259\
---------------------------------------------------------------------------

\258\ Id.
\259\ Id.
---------------------------------------------------------------------------

Finally, DHS also is codifying the longstanding policy as proposed
in the NPRM that a DACA requestor may meet the educational guideline if
they are an honorably discharged veteran (including honorably
discharged reservists) of the Coast Guard or Armed Forces of the United
States. As has been longstanding policy and as discussed in the NPRM
preamble, current or ongoing service in the Coast Guard or Armed Forces
of the United States will not, however, qualify under this component of
the guideline, although such service may, in some instances, qualify
noncitizens for other forms of enforcement discretion or for lawful
immigration status.\260\
---------------------------------------------------------------------------

\260\ Id.
---------------------------------------------------------------------------

Opposition to the ``Education'' Criteria
Comment: One commenter voiced opposition to the proposed
educational criteria, stating that the intent of the DACA policy--to
protect young people who were brought to the United States as children
and lacked the intent to violate the law--has no relation to an
individual's educational attainment. The commenter stated that if the
educational requirements were removed, and noncitizens who qualify for
DACA but for the education requirements could enter the workforce,
States could benefit from increased tax revenue from those requestors.
The commenter asked that if the educational requirements remain as
proposed, the Department address what constitutes ``demonstrated
effectiveness'' such that requestors are not limited based on the type
of educational program they attend.
Another commenter opposed the education criteria that DACA
recipients graduate high school and stated that the education
requirements are unnecessarily stringent. The commenter asked why--if
an individual has not been eliminated from disqualification due to any
other criteria--their ability to pass the 12th grade would make an
impact on their qualification.
Response: DHS acknowledges that there are many noncitizens who may
meet the threshold guidelines for DACA but for the education
requirement. DHS also does not disagree that were such noncitizens to
be granted deferred action and work authorization under the DACA
policy, States could potentially benefit from their increased economic
contributions and tax revenue. However, DHS disagrees that the
education criteria as codified in this rule is too stringent. To the
contrary, DHS provides myriad ways for DACA requestors to meet this
threshold guideline, including enrollment in a variety of educational
programs, graduation from high school or a GED program, or honorable
discharge from the Coast Guard or Armed Forces of the United
States.\261\
---------------------------------------------------------------------------

\261\ See new 8 CFR 236.22(b)(5).
---------------------------------------------------------------------------

DHS also disagrees that the education criteria is unsupported by
the foundational principles undergirding the creation of the DACA
policy. As the Napolitano Memorandum highlights, this policy was
intended to defer removal for ``productive young people'' who have
``contributed to our country in significant ways.'' \262\ While the
Department recognizes that there are many ways that the DACA population
have and continue to contribute to the United States and their
communities, by incorporating an education criteria into the threshold
guidelines, DHS is highlighting the importance of education and
military service by considering those who give back and invest in their
future through education to be lower priorities for enforcement action.
---------------------------------------------------------------------------

\262\ Napolitano Memorandum at 2.
---------------------------------------------------------------------------

In response to one commenter's request to address what constitutes
``demonstrated effectiveness'' for alternative education programs that
are not publicly funded, DHS notes that it has provided subregulatory
guidance on its website explaining that when looking at demonstrated
effectiveness, USCIS reviews:
the duration of the program's existence;
the program's track record in assisting students in
obtaining a GED, or a recognized equivalent certificate;
receipt of awards or special achievement or recognition
that indicate the program's overall quality; and/or
any other information indicating the program's overall
quality.\263\
---------------------------------------------------------------------------

\263\ DACA FAQs.

DHS believes that these factors provide flexibility to requestors while
also maintaining a threshold level of educational quality as it relates
to a program's overall effectiveness, and that such factors are best
provided in subregulatory guidance rather than in regulation. DHS is
therefore not making any changes to new 8 CFR 236.22(b)(5) in response
to these comments.
Other Comments on the ``Education'' Criteria
Comment: Several commenters recommended creating a hardship waiver
for people who, for example, had to drop out of high school to work, to
be caregivers due to the pandemic, due to domestic violence, or due to
other reasons. Some commenters suggested that a requestor demonstrate
compelling circumstances for the inability to satisfy the educational
guidelines in Form I-821D, Part 8 or include an addendum in their DACA
request for USCIS' consideration. Several commenters recommended adding
a caregiving exemption to the educational requirements that would
recognize the importance of domestic work, paid or unpaid, in immigrant
communities. One of these commenters reasoned that caring for family
members requires significant time and can be a barrier to meeting the
current educational requirements. Another of these commenters requested
that DHS also provide a hardship exemption to the education criteria in
recognition of the financial hardship and challenges of residing in a
remote location faced by many farmworker families. The commenter noted
that farmworkers also have inflexible and long work hours that further
exacerbate difficulties in obtaining an education. Another commenter
urged DHS to expand eligibility to those who were unable to graduate
from high school or earn a GED, stating that the requirement is biased
toward youth who have supports that allow them to pursue an education.
Some commenters also recommended adding an exemption to the
educational

[[Page 53224]]

requirement through community service. One commenter reasoned that
allowing a community service exemption would demonstrate a commitment
to DACA objectives through structured volunteer activities and would
strengthen future employability in the nonprofit sector.
Response: DHS appreciates the commenters raising the importance of
caregiving and community service and agrees that these are meaningful
occupations that contribute to society. DHS also acknowledges that
caregiving duties, financial hardship, residing in a remote location,
inflexible work schedules, domestic violence, the pandemic, and other
challenges may impact a requestor's ability to meet the education
criteria. However, as noted above, DHS believes that there is
sufficient flexibility in the various ways a requestor may satisfy this
threshold guideline to enable requestors in a variety of circumstances
to find a program that fits their needs. For the reasons articulated
throughout this rule, DHS also is retaining this threshold guideline as
proposed in its efforts to preserve and fortify the policy. DHS
therefore declines to create an exemption to the education criteria for
hardship, caregiving, community service, or other reasons.
Comment: Some commenters recommended that individuals in current or
ongoing military service be eligible to meet the education criteria,
not just those who have received an honorable discharge. One commenter
stated that this expansion of eligibility for current military service
members would align with the requirements of the Department of Veterans
Affairs benefits. Another commenter requested that USCIS clarify that
union apprenticeships qualify as approved educational programs that
meet current requirements.
Response: DHS appreciates commenters raising these possibilities
for expanding the education criteria to include current military
service or union apprenticeships. However, as discussed elsewhere in
this rule, DHS is retaining this and the other threshold criteria as
proposed in its efforts to preserve and fortify DACA, and in
recognition of the reliance interests of current DACA requestors and
those similarly situated who have not yet requested DACA, and their
families, employers, schools, and communities.
Comment: A commenter referenced former USCIS Director Francis
Cissna's May 25, 2018 response to Rep. Steve King's questions regarding
the education levels of DACA recipients. The commenter said that the
NPRM does not mention, as stated by Director Cissna, that education is
a required field on Form I-821D for initial requests but is not a
required field on renewal requests. The commenter went on to cite
education-related figures for approved DACA recipients from 2012-2018,
questioning whether the rule is simply allowing 800,000 children to get
work authorization and a driver's license with little apparent hope of
reaching their dreams. Another commenter said that many DACA requestors
only register to study while the request is processed and then they
abandon their studies.
Response: As discussed above, DHS incorporated the education
criteria into the threshold guidelines for DACA in recognition of the
importance of education and military service and of the contributions
that DACA requestors make to the country. For example, one study of the
effects of DACA on educational achievement concluded that, because of
DACA, more than 49,000 additional Hispanic youth obtained a high school
diploma, and that the gap in high school graduation between citizen and
noncitizen youth in the study's sample closed by 40 percent.\264\ The
same study found positive, though imprecise, impacts on college
attendance.\265\
---------------------------------------------------------------------------

\264\ Kuka (2020).
\265\ Id.
---------------------------------------------------------------------------

DHS also recognizes that there may be circumstances beyond a
requestor's control that may impede their ability to participate in or
complete certain educational programs, and for that reason, DHS
intentionally provided a variety of options for meeting this threshold
guideline.
It is DHS's position that participation in or graduation from
educational programs is beneficial to requestors and to the community
writ large. As stated elsewhere in this rule, many DACA recipients have
gone on to continue their studies at post-secondary and professional
levels, and some have become doctors, lawyers, nurses, teachers, or
engineers.\266\ Approximately 30,000 DACA recipients are healthcare
workers, and many of them have helped care for their communities on the
frontlines during the COVID-19 pandemic.\267\ DHS therefore disagrees
with the commenters that this rule provides work authorization to DACA
recipients without supporting educational outcomes or contributions.
---------------------------------------------------------------------------

\266\ See Gonzales (2019); Svajlenka (2020); Wong (2020); Zong
(2017).
\267\ Svajlenka (2020). DACA recipients who are healthcare
workers also are helping to alleviate a shortage of healthcare
professionals in the United States and they are more likely to work
in underserved communities where shortages are particularly dire.
Chen (2019); Garcia (2017).
---------------------------------------------------------------------------

DHS acknowledges commenters' correct assertion that DHS does not
currently require requestors to affirmatively provide evidence of their
continued participation in educational programs upon seeking renewal of
DACA. Once the threshold educational guideline is met by evidence
provided for adjudication of the initial request, DHS focuses its
renewal adjudications on critical issues such as whether the individual
continues to meet the criminality, public safety, national security,
and continuous residence guidelines.
(6) Criminal History, Public Safety, and National Security
General Comments
Comment: Some commenters generally expressed that DACA should be
more forgiving of minor offenses, with most stating that young people,
like everyone, make mistakes that should not result in excessive
punishment or deprive them of DACA. However, one commenter expressed
that the requirement related to criminal history was sound judgment.
One commenter stated that DHS failed to elaborate on why it allows
convicted criminals to obtain DACA, whereas law-abiding prospective
immigrants are not considered for deferred action and employment
authorization, saying that existing data do not support that officers
exercise discretion in granting DACA. Another commenter said that DHS
failed to conduct meaningful studies on crimes DACA recipients have
committed and their negative impacts on U.S. society or on crime
victims, nor did DHS consider any measures to enhance national
security, such as banning all persons with any criminal records from
receiving DACA. The commenter went on to cite data indicating that more
than 10 percent of the approved DACA recipients have at least one
arrest, which the commenter said was not acknowledged in the rule. This
commenter questioned how much discretion the adjudicating officer has,
stating that it is unimaginable that someone who has been accused of
crimes such as murder or assault could receive favorable discretion.
A commenter expressed concern over the use of vague language to
disqualify individuals who pose a threat to national security or public
safety, stating that this abstract language provides no standard or
guidance as to how an individual can prove by a preponderance of the
evidence that they meet this requirement. Further, the

[[Page 53225]]

commenter stated that this vague language leaves open the possibility
of uneven and discriminatory application, and officers who are
unfriendly to the policy's ideals may wield it to exclude otherwise-
qualified individuals for dishonorable and politically motivated aims.
The commenter said that this concern is based on the historical use of
similar grounds to incite fear and discriminate against individuals
based on race, religion, sexual orientation, political ideology, and
various other identities. Another commenter suggested eliminating or
narrowing the public safety discretionary factor, stating that
overbroad categorizations of being a threat to public safety rely
heavily on often unfounded allegations of gang membership or
participation in criminal activities, and that public safety long has
been used as a pretext for criminalizing immigrants.
Multiple commenters opposed DHS requiring or requesting juvenile
records as part of the DACA adjudication process, stating that
requiring such records is a breach of confidentiality for juveniles and
may be illegal in some States, such as California. The commenter
recommended that DHS refrain from requesting juvenile records as a
nationwide policy to ensure a consistent and fair process across all
States.
Response: DHS acknowledges the variety of comments on this issue,
ranging from concern that the rule should be more forgiving of minor
offenses, to agreement with the criteria, to objection that someone
with a criminal conviction at all (regardless of the severity of the
offense) can receive DACA. DHS maintains that the criminal history,
public safety, and national security criteria, as proposed, strike an
appropriate balance that is generally consistent with the spirit of
DHS's Enforcement Guidelines, which focus on threats to national
security, public safety, and border security. Excluding all individuals
with any criminal records from receiving DACA, as proposed by one
commenter, would not serve DHS's enforcement priority goals, as DHS
does not have the ability to pursue removal of every individual without
lawful status who has a criminal record. DHS agrees with commenters
that the rule should be forgiving of some minor offenses and maintains
that the criteria as proposed do accomplish that goal: individuals with
isolated minor convictions are not categorically excluded, including
those with minor traffic offenses. While those with three or more
misdemeanor convictions will not be granted DACA, this reflects DHS's
judgment that an individual with multiple misdemeanor convictions,
however minor as individual offenses, generally does not warrant a
favorable exercise of enforcement discretion in the form of DACA.
DHS acknowledges one commenter's reference to the November 2019
USCIS report ``DACA Requestors with an IDENT Response,'' \268\ which
includes data reflecting that approximately 10 percent of DACA
requestors approved between 2012 and October 2019 had been arrested or
apprehended for a criminal offense or immigration-related civil
offense, but disagrees that the NPRM did not acknowledge this data as
it is explicitly referenced in the preamble to the NPRM at 86 FR 53752.
Additionally, because the report reflects arrests and apprehensions--
not charges or convictions--and includes apprehensions for immigration-
related civil violations which cannot be systematically excluded from
the report, the report is significantly overinclusive and not a
reliable basis for informing the development of the criminal
conviction-related criteria.
---------------------------------------------------------------------------

\268\ USCIS, Office of Policy & Strategy, Research & Evaluation
Division, DACA Requestors with an IDENT Response: November 2019
Update (Nov. 2019), https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf (last accessed
February 25, 2022).
---------------------------------------------------------------------------

DHS acknowledges a commenter's view that whether someone poses a
threat to national security or public safety is vague, but disagrees
with the assertion that this may lead to discriminatory application or
that officers will use this provision to exclude individuals for
dishonorable or politically motivated aims. Determining whether someone
poses a threat to national security or public safety is at the heart of
DHS's mission, and Congress has directed the Secretary to prioritize
national security, public safety, and border security. These concepts
are longstanding and familiar to officers based on both experience and
training, and are incorporated into DHS's enforcement priorities, as
reflected in the rule.
DHS further disagrees with a commenter's assertion that existing
data do not support the conclusion that officers should exercise
discretion in adjudicating DACA requests. The DACA policy has
historically included threshold discretionary criteria that USCIS
assesses on a case-by-case basis as a review of the totality of
circumstances. The assessment of whether a requestor meets these
criteria itself entails the exercise of discretion by adjudicators--
such as whether the requestor meets the criminal history, public
safety, and national security criteria or whether they meet the
continuous residence criterion, and additionally, even when a requestor
meets all threshold criteria, USCIS adjudicators have had (and will
continue to have) discretion to determine that in the totality of
circumstances, a favorable exercise of discretion is nonetheless not
warranted. Thus, USCIS data on DACA denials is itself an indication
that officers exercise discretion in adjudicating DACA requests. USCIS
data through December 31, 2021, reflects that USCIS has denied 107,245
DACA requests since the policy was implemented.\269\
---------------------------------------------------------------------------

\269\ USCIS, Deferred Action for Childhood Arrivals (DACA)
Quarterly Report (Fiscal Year 2022, Q1) (Mar. 2022), https://www.uscis.gov/sites/default/files/document/reports/DACA_performancedata_fy2022_qtr1.pdf (last visited June 2, 2022).
---------------------------------------------------------------------------

With respect to juvenile delinquency records, as explained
elsewhere in this rule, USCIS does not consider a juvenile delinquency
determination a conviction for immigration purposes, consistent with
longstanding DACA policy and Board of Immigration Appeals (BIA)
precedent. Also consistent with longstanding DACA policy, USCIS does
not consider juvenile delinquency adjudications as automatically
disqualifying for DACA. If a requestor cannot provide the record
because it is sealed or because State law prohibits even the individual
to whom the record relates (i.e., the DACA requestor) from themselves
disclosing the record, USCIS still may request information about the
underlying conduct in order to perform a case-by-case analysis of
whether the individual presents a threat to public safety or national
security and whether a favorable exercise of prosecutorial discretion
is otherwise warranted.
Mandatory/Categorical Criminal Bars to DACA
Comment: One commenter recommended no changes be made to the
criminal criteria as drafted in the proposed rule. However, many
commenters opposed categorically denying DACA based on contact with the
criminal legal system, suggested removal of the criminal conviction
bars entirely, and recommended instead instituting a case-by-case
review for those with such convictions. Commenters stated that the
proposed criminal criteria are much broader than DHS's current
memorandum on enforcement priorities, undermining the claim that the
criminal criteria identify young people who are a high priority for
removal, and that categorical bars by their nature eliminate the option
of case-by-case determinations.

[[Page 53226]]

Commenters added that as a result, mandatory criminal bars require DHS
to deny certain requestors even when they have demonstrated that they
warrant favorable discretion, noting that the very nature of DACA means
that every eligible requestor entered the United States as a child, and
this fact alone should obligate DHS to consider each case in the
totality of circumstances without being constrained by mandatory
criminal bars. One commenter stated that consideration of the final DHS
enforcement priorities, issued after the proposed rule was published,
should be incorporated into the final rule so that no one is denied
DACA who is not an enforcement priority. The commenter further noted
that the statement in the proposed rule that where DACA guidelines may
not align with current or future enforcement discretion guidance, USCIS
may consider that guidance when determining whether to deny or
terminate DACA even when the guidelines are met, invites future
administrations to nearly end DACA by determining that all immigrants
encountered by DHS may be enforcement priorities. Commenters stated
that eliminating criminal conviction exclusions would decrease barriers
for individuals with criminal records seeking DACA, bringing the policy
into compliance with basic tenets of racial equity as well as
compliance with E.O. 13985.
Commenters who oppose the criminal conviction criteria stated that
they are arbitrary and discriminatory; unjustly transfer the racial
inequities of the criminal legal system into the administration of DACA
in light of the long history of racial disparities in the U.S. criminal
legal system; unfairly exclude communities who already are
criminalized, surveilled, and facing discrimination; impose a ``double
punishment'' on largely Black, Brown, and Indigenous immigrants who
already have served their full sentences and complied with
consequences; ignore the disparities in the criminal legal system and
the over-policing and over-prosecution of people, particularly youths,
in communities of color; and do not sufficiently take into account the
impact on children, as children whose parents or caregivers would be
ineligible could experience the harms of family separation through
detention or deportation.
One commenter noted that no other area has changed as significantly
since 2012 as social perceptions of the criminal legal system,
concluding that the rule's exclusions for criminal history are
fundamentally incompatible with this reform movement. A legal services
provider shared anecdotal examples of how the criminal bars
disproportionately affected its clients. Another commenter stated that
removing the criminal bars would align with the dual intentions of
DACA--to preserve DHS resources and provide relief to individuals
brought to the United States as children--because it would provide
relief to a broader population and lead to greater stability for more
families, more opportunities to pursue education or careers, and
increased tax revenue. The commenter further noted that removing the
criminal bars would acknowledge the capability of rehabilitation.
Commenters said that the criminal framework within DACA includes a
unique system of criminal bars, separate from the grounds of
inadmissibility and deportability, that is used to unfairly target
certain members of the DACA population, by singling out certain contact
with the criminal legal system based on the type of offense or conduct,
and that does not account for differences in sentencing or severity of
punishment across different localities. Commenters stated that this
encourages officers to reach beyond the criminal legal system's
disposition and form their own judgment without the benefit of due
process.
Some commenters recommended eliminating certain per se criminal
bars, including minor traffic offenses, driving under the influence, 8
U.S.C. 1325 (improper entry) and 1326 (reentry of removed individuals),
and offenses involving marijuana or related paraphernalia, in light of
the decriminalization of marijuana.
Commenters stated that a conviction does not necessarily indicate
whether an individual poses a threat to persons or property, or
otherwise does not warrant deferred action. The commenter further
stated a conviction is an unreliable predictor of future danger, and is
an unreliable indicator of past criminal conduct because of disparate
policing practices and the significant number of people who may plead
guilty to a crime for a number of reasons. The commenter stated that by
adopting categorical criminal bars, the agency prevents itself from
considering mitigating circumstances or humanitarian concerns.
One commenter stated that individualized consideration for those
few exceptional cases in which DHS has an objectively reasonable,
particularized belief that criminal history is currently relevant
should account for differences in sentencing or severity of punishment
across different localities and provide an opportunity for the
requestor to respond to and explain the information. The commenter
further noted that the rule does not require most sentences described
to be actually served and fails to cut off consideration of past
conduct based on the passage of time since the conviction. Another
commenter also recommended that the conviction definitions consider
actual time served rather than potential sentences imposed.
One commenter stated that when a conviction occurred should limit
exclusions, reasoning that no one should be defined solely by their
long-past actions. The commenter recommended considering actual
sentences served rather than the potential sentences captured by the
felony and misdemeanor conviction definitions in order to reflect the
courts' assessments of offense severity.
Response: DHS appreciates and acknowledges the range of views
expressed by the commenters, with one supporting the criminal criteria
as drafted, and many opposing categorical criminal criteria and instead
recommending a framework that considers aggravating and mitigating
factors on a case-by-case basis. DHS notes commenters' comparison of
the criminal criteria with the Enforcement Guidelines, observation that
the criteria are distinct from the criminal grounds of inadmissibility
and deportability, and attention to the fact that the definitions
provided of felonies and misdemeanors reference potential sentences
rather than actual time served. DHS acknowledges commenters' statements
that: the criminal criteria are arbitrary and discriminatory, systemic
racism or other disparities may result in disproportionate contact with
the criminal legal system, and it is improper to draw conclusions about
future threats to public safety based on the fact of a past conviction.
Despite the limitations and imperfections of the criminal legal
system, criminal convictions rendered under Federal and State laws
often carry immigration consequences. It is therefore consistent with
immigration law generally for DHS to take convictions into
consideration when determining whether to favorably exercise its
enforcement discretion to defer removal action. It is likewise
consistent with Federal law definitions of felonies and misdemeanors
for DHS to classify offenses for DACA purposes based on the potential
sentence, rather than time served. DHS maintains that for purposes of
consideration under DACA and consistent with longstanding DACA policy,
it remains appropriate for USCIS to take into consideration a
requestor's criminal convictions. As

[[Page 53227]]

noted in the NPRM, DHS acknowledges that the threshold DACA criteria
and DHS's broader enforcement priorities may not always perfectly
align. In its effort to preserve and fortify DACA, DHS does not believe
that it is necessary or beneficial to tie the DACA threshold criteria
to the specific DHS enforcement priorities that are in place at any
given time, in light of the possibility for the priorities to change,
because the DACA criteria are such that the DACA population will
generally be considered a low priority. Although the criteria outlined
in this rule are the primary factors considered in determining whether
to grant DACA, because deferred action is a case-by-case act of
prosecutorial discretion, DHS may consider other relevant factors,
including changed enforcement priorities, when determining whether to
grant deferred action in an individual case. Factors outside of the
threshold criteria may not universally overrule the threshold criteria
in all cases such that changed enforcement priorities render the
threshold criteria entirely moot, but because DHS may consider all
factors in a case, the current enforcement priorities may properly be
taken into consideration. DHS acknowledges that as a result, there may
be cases in which ICE or CBP determine in their discretion that an
individual is not a priority for removal even when USCIS determines the
individual does not warrant a favorable exercise of enforcement
discretion in the form of DACA. But DACA was never intended to capture
every individual who ICE or CBP determines is not a priority for
removal. Indeed, the very nature of discretion is such that different
DHS components may exercise their discretion differently based on
differing operational considerations, reaching different outcomes for
an individual, all while remaining within the boundaries of the
applicable guidelines.
The criminal criteria reflect a targeted approach to considering
public safety concerns, identifying convictions that do not support the
favorable exercise of enforcement discretion, and balancing the
positive equities of the requestor population as reflected in other
threshold criteria. While the criteria serve as important benchmarks
for consideration of DACA, they do not prevent or replace a case-by-
case weighing of all relevant factors by USCIS adjudicators. Moreover,
as explained in the proposed rule, DHS seeks to retain the threshold
criteria of the DACA policy as applied by USCIS since 2012 in part due
to recognition of the significant reliance interests in the continued
existence of the DACA policy of individuals who previously have
received DACA grants, and those similarly situated who have not yet
requested DACA, as well as their families, employers, schools, and
communities. DHS determined that the best approach to preserving and
fortifying DACA to ensure the continued existence of the policy to is
to codify the existing threshold criteria. Accordingly, DHS believes
the criminal criteria as proposed, and as implemented for 10 years,
enable USCIS to identify more readily those who are likely to be a low
priority based on their positive equities and successfully advance
DHS's important enforcement mission.
Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6)
as a result of these comments.
Waivers and Exceptions
Comment: Multiple commenters stated that the rule should, at a
minimum, include a waiver for individuals who trigger the criminal
bars, so DACA requestors would not be rendered ineligible without a
case-by-case determination. Commenters said that adjudicators should be
able to consider the totality of circumstances, mitigating factors, and
positive equities, including the severity of the crime, the age of the
individual at the time the crime was committed, rehabilitation, minor
drug-related offenses, whether a conviction was related to the
individual having been a survivor of domestic violence or human
trafficking, the time that has passed between the conviction and
adjudication of the DACA request, length of residence, community ties,
family ties, the impact of a possible denial of a request on U.S.
citizen or permanent resident family members, and mental and physical
health. One commenter said that requestors should be allowed to seek a
waiver for ineligibility, similar to the waiver available under INA
sec. 212(h), 8 U.S.C. 1182(h).
A few commenters stated that a program rooted in a case-by-case
exercise of discretion should not categorically exclude a class of
individuals without providing them an opportunity to present their
equities to an adjudicator who can weigh the totality of the
circumstances. Other commenters also noted concern that barring whole
categories of individuals imports the biases of the criminal legal
system into immigration decision making and unfairly targets portions
of the population who are already targets of discriminatory policing
practices. Some commenters said that DHS should use its authority to
grant extraordinary circumstances waivers in cases of DACA requestors
with felony convictions to avoid the unjust, disproportionate impact of
the felony conviction bar on communities of color and LGBTQ DACA-
eligible individuals.
Multiple commenters also noted that the existing DACA policy allows
a waiver of the criminal exclusions due to ``exceptional
circumstances,'' but stated that it is unclear what evidence a
requestor should submit to establish exceptional circumstances, nor is
it clear how adjudicators determine if the standard is met. One
commenter urged DHS to codify and expand the availability of this
exception for convictions from the existing DACA policy.
Response: DHS acknowledges commenters' concerns regarding
communities of color and LGBTQIA+ individuals being disproportionately
impacted by the criteria, and the suggestion that the criminal criteria
include a waiver or exception that takes into consideration aggravating
and mitigating factors on a case-by-case basis. However, DHS declines
to accept the recommendation that DHS codify the longstanding
``exceptional circumstances'' exception to the criminal conviction
criteria. Commenters correctly note that historically, under DACA FAQs
61 and 66,\270\ USCIS retained discretion to determine that an
individual with a disqualifying conviction nonetheless warranted a
favorable exercise of enforcement discretion due to exceptional
circumstances after careful consideration of the specific facts of the
case. DHS is choosing not to codify that exception because it believes
that the criminal criteria strike the correct balance for determining
what criminal history should be disqualifying for enforcement
discretion under DACA. Moreover, DHS notes that despite the long
history of this exception, USCIS rarely, if ever, found exceptional
circumstances that warranted a grant of DACA where the requestor did
not meet the criminal guidelines. If such cases arise in the future,
DHS may, where appropriate, consider the DACA requestor for other forms
of enforcement discretion.
---------------------------------------------------------------------------

\270\ DACA FAQs.
---------------------------------------------------------------------------

Statute of Limitations
Comment: One commenter stated that there should be no misdemeanor
bar in the rule, but if there is one, there should be a ``statute of
limitations'' on misdemeanors. Other commenters similarly stated that
the rule should impose a statute of limitations, saying

[[Page 53228]]

that lack of a statute of limitations is punitive because few people
are the same person they were 5 or 10 years before when they made bad
decisions. Multiple commenters specifically recommended that DHS
establish an administrative statute of limitations for consideration of
convictions that occurred 5 or more years before the request date, and
one recommended that all conviction-based exclusions be limited to
within 5 years of the rule's promulgation.
Several commenters said that DACA-eligible youth have developed
deep ties to family and community in the United States, deserve the
chance to rehabilitate and contribute, and should not suffer further
consequences if they have successfully completed the terms of any
sentence resulting from a criminal conviction. A few commenters also
stated that this approach would be in line with the administration's
current enforcement priorities, which lists how long ago the conviction
occurred as one of the factors in deciding whether to exercise
prosecutorial discretion.
One commenter stated that this change to the rule is necessary when
Southeast Asian immigrant and refugee communities have a long history
of being over-policed and racially profiled, and to prevent further
repercussions of racial inequities and injustices in the criminal legal
system that disproportionately impact Black and Indigenous communities
and other people of color.
Response: DHS acknowledges commenters' suggestion that the criminal
criteria include an administrative ``statute of limitations'' to limit
USCIS from considering convictions that occurred more than 5 or 10
years ago as automatically disqualifying. DHS further acknowledges
commenters' statements that individuals may have rehabilitated
following older convictions and that contact with the criminal legal
system is often the result of systemic racism.
Despite the limitations and imperfections of the criminal legal
system, criminal convictions rendered under Federal and State laws
often carry immigration consequences. It is therefore consistent with
immigration law generally for DHS to take convictions into
consideration when determining whether to favorably exercise its
enforcement discretion to defer removal action. DHS maintains that for
purposes of consideration under DACA and consistent with longstanding
DACA policy, in the exercise of discretion, it remains appropriate for
USCIS to take into consideration convictions even if they occurred more
than 5 or 10 years in the past. The criminal criteria reflect a
targeted approach to considering public safety concerns, identifying
convictions that do not support the favorable exercise of enforcement
discretion, and balancing the positive equities of the requestor
population as reflected in other threshold criteria. As explained in
the proposed rule and elsewhere in this rule, DHS seeks to retain the
threshold criteria of the DACA policy as applied by USCIS since 2012 in
part due to recognition of the significant reliance interests in the
continued existence of the DACA policy of individuals who previously
have received DACA grants, and those similarly situated who have not
yet requested DACA, and their families, employers, schools, and
communities. Accordingly, DHS believes the criminal criteria as
proposed, and as implemented for 10 years, enable USCIS to identify
more readily those who are likely to be a low priority based on their
positive equities and successfully advance DHS's important enforcement
mission. Accordingly, DHS will not make any revisions to 8 CFR
236.22(b)(6) as a result of these comments.
Expunged and Juvenile Convictions
Comment: Many commenters stated that the rule should clearly
prohibit consideration of expunged convictions and juvenile delinquency
adjudications in DACA determinations, including the many ways in which
expungement is defined, and opposed the rule's reference to the
definition of conviction at INA sec. 101(a)(48)(A), 8 U.S.C.
1101(a)(48)(a) because it includes expunged convictions. One commenter
said that this could be read to limit DHS's discretion in this area.
Commenters stated that expungements were available for similar
programs such as the Special Agricultural Worker and other legalization
programs of the 1980s and are included in legislation currently before
Congress. They noted recognizing the validity of expungements is
critical to meeting the intent of DACA and giving effect to important
safeguards of the criminal legal system that recognize the capacity for
rehabilitation of impacted individuals and the special vulnerabilities
of youth and counter the impact of policing in our communities. One
commenter stated that expunged, sealed, or otherwise vacated records
are a powerful indicator of change in an individual. One commenter
noted that many DACA recipients are Black, Latinx, and/or other people
of color who come from communities harmed by a history of racial
injustice and a deeply flawed law enforcement system.
Multiple commenters stated that considering expunged convictions
and juvenile delinquency adjudications as disqualifying convictions
would be a damaging departure from longstanding DACA policy that would
result in current DACA recipients being unable to renew. Many stated
that, at a minimum, the rule should codify existing DACA policy, which
provides that expunged convictions and juvenile delinquency
determinations do not presumptively bar an applicant from receiving
DACA and are considered on a case-by-case basis to determine whether,
under the particular circumstances, a favorable exercise of
prosecutorial discretion is warranted.
However, multiple commenters opposed the case-by-case review of
expunged convictions and juvenile delinquency adjudications as provided
by current policy. Commenters stated that it leads to differing
decisions for similarly situated requestors based on the adjudicating
officer, undermining the finality of a State or local judicial decision
to set aside and expunge an individual's criminal conviction, noting
that the very purpose of expungement is to eliminate collateral
consequences arising from the existence of the conviction on an
individual's record. Commenters also noted that it wastes valuable
agency time, as State and local authorities already examined the facts
of the case and concluded that the conviction merited expungement, and
almost all States have expungement mechanisms that do not allow for the
expungement of felonies.\271\ Another commenter stated that current
guidance does not align with the purpose of expungement, nor comport
with relevant research on young adults, their decision-making process,
and their brain development. They cited the importance of the research
because it suggests a person's past juvenile record is not indicative
of their adult potential.
---------------------------------------------------------------------------

\271\ See Restoration of Rights Project, 50-State Comparison:
Expungement, Sealing & Other Record Relief, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside (last updated
Oct. 2021).
---------------------------------------------------------------------------

Commenters cited academic research demonstrating that individuals
with expunged convictions present a low public safety risk and, thus,
should be a low priority for removal, like other members of the DACA-
eligible population. Additionally, a commenter said that legislative
and policy changes providing for expungement--including automatic
expungement--reflect an increased desire to create second-chance

[[Page 53229]]

opportunities in employment, housing, and professional licensing for
individuals with prior criminal convictions. Commenters also stated
that, in the criminal legal system, an expunged conviction is removed
from the system entirely, including for housing, loan, employment,
voting, and all other purposes, and DHS must similarly abide by this
standard.
Commenters also noted that the immigration system recognizes the
special position of juveniles in immigration court proceedings, where a
juvenile delinquency adjudication is not considered to be a criminal
conviction for immigration purposes and does not trigger adverse
immigration consequences that flow from a conviction, which has been
repeatedly affirmed by the BIA. Therefore, commenters state that the
same should be true regarding DACA. One said that no conduct committed
when under 18 should exclude someone from receiving DACA and that
juvenile convictions should not be considered a negative factor, noting
the inconsistency of saying that children lacked intent to violate the
law in coming to the United States but then holding them responsible as
a collateral consequence for other conduct while adolescents.
Response: DHS agrees with commenters that the longstanding DACA
policy of not considering expunged convictions and juvenile delinquency
adjudications as automatically disqualifying should be continued. DHS
did not intend for the rule to abandon this policy as reflected in DACA
FAQ 68,\272\ which provides that expunged convictions and juvenile
delinquency adjudications are not considered disqualifying convictions
for purposes of the criminal criteria, but instead are assessed on a
case-by-case basis to determine whether, under the particular
circumstances, a favorable exercise of prosecutorial discretion is
warranted.
---------------------------------------------------------------------------

\272\ DACA FAQs.
---------------------------------------------------------------------------

However, DHS disagrees with commenters that case-by-case
consideration of such criminal history should be eliminated and that
the rule should prohibit entirely any consideration of expunged
convictions or juvenile delinquency adjudications. By conducting an
individual, case-by-case assessment that takes into consideration the
nature and severity of the underlying conduct, DHS is giving effect to
the State or local judicial determination to erase the conviction
itself from the individual's criminal record, while still allowing DHS
to consider the underlying facts to make a proper determination as to
whether a requestor poses a threat to public safety or national
security and whether the favorable exercise of prosecutorial discretion
is otherwise warranted. While DHS recognizes that in other immigration
contexts, expungements are generally considered convictions for
immigration purposes with few exceptions, providing for case-by-case
consideration of the underlying nature and severity of the criminal
offense rather than categorically excluding requestors with otherwise
disqualifying convictions that were expunged is consistent with the
nature of DACA as an exercise of enforcement discretion--as distinct
from an adjudication involving statutory eligibility requirements plus
the exercise of adjudicative discretion--and reflects a balancing of
the use of guidelines and discretion, which serves to promote
consistency and avoid arbitrariness in DACA determinations.
Likewise, in the case of juvenile delinquency adjudications, DHS
agrees that the rule should not depart from longstanding DACA policy
and BIA precedent establishing that a juvenile delinquency
determination is not a conviction for immigration purposes.\273\
Nonetheless, for the same reasons explained above, DHS maintains that
it is appropriate for adjudicators to still consider the underlying
conduct as part of a case-by-case analysis of whether the individual
presents a threat to public safety or national security and whether a
favorable exercise of prosecutorial discretion is otherwise warranted.
---------------------------------------------------------------------------

\273\ Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981).
---------------------------------------------------------------------------

In this final rule, DHS is revising 8 CFR 236.22(b)(6) to clarify
that expunged convictions and juvenile delinquency adjudications are
not considered automatically disqualifying under the criminal history
criteria. However, consistent with longstanding policy, expunged
convictions and juvenile delinquency adjudications will still be
assessed on a case-by-case basis to determine whether the individual
presents a national security or public safety concern and otherwise
warrants a favorable exercise of discretion.\274\
---------------------------------------------------------------------------

\274\ See new 8 CFR 236.22(b)(6).
---------------------------------------------------------------------------

Misdemeanors
Comment: Multiple commenters asserted that the single-misdemeanor
bar should be eliminated because the offenses are undefined, overbroad,
and arbitrary, with one stating that the definition was at best vague
and at worst unjustly punitive. A commenter noted that these categories
are broad and subject to interpretation, and conduct is criminalized
differently in different jurisdictions, so there will continue to be
wildly inconsistent application and arbitrary adjudications, stating
that it undercuts the underlying spirit and intention of DACA, which
was created to assist DHS by providing a well-defined framework for
exercising its discretionary prosecutorial power and minimizing DHS
waste on non-priority enforcement cases. One commenter suggested DHS
define each offense rather than listing crimes, since States have
different versions of every law; another suggested considering them on
a case-by-case basis since young adults make dumb mistakes very often
and a mistake should not ruin someone's life.
Commenters also stated that the use of an arbitrary length of
sentence imposed in determining a particular misdemeanor is
disqualifying is inappropriate and arbitrary, and will further
prevailing trends of inequality in the justice system, as well as
disparate treatment based on the applicant's jurisdiction and its
sentencing scheme. One noted that this provision undervalues a
federalist system in which a misdemeanor offense in one system can be
considered a felony in another, and sentencing varies by locality.
One commenter stated that the misdemeanor definition used for the
single-conviction and three-conviction bars include offenses that are
considered non-criminal ``violations'' under New York law. The
commenter noted that a violation of disorderly conduct under New York
law is a violation, not a crime, but is a common disposition in
criminal courts, often for minor alleged conduct, and pleas to this
violation are often the release valve for the criminal legal system,
yet regularly lead to ineligibility for DACA. The commenter stated that
maintaining this bar will force people to choose between quickly and
efficiently disposing of their case and defending their innocence
through often prolonged and unnecessary litigation to ensure they do
not face a bar to obtaining DACA. The commenter additionally noted the
criminal bars would disparately impact those who are routinely
criminalized because of disparate policing practices, including based
on race, sexual orientation, and gender, or in connection with
experiences of trafficking and domestic violence, stating that DACA
recipients often come from vulnerable communities that may be more
susceptible to low-level offenses. Another commenter stated that
disqualifying individuals based on

[[Page 53230]]

convictions incurred by a system characterized by institutionalized
discrimination and racism only serves to compound punishment on Black
and Brown immigrants.
Multiple commenters noted appreciation of the clarified definition
of a ``significant misdemeanor,'' but nonetheless opposed the criminal
bars, stating that they add to the harmful rhetoric of immigrants as
criminals. Some of these commenters expressed concern that a
``significant misdemeanor'' offense from many years ago may act as a
bar to DACA, despite positive discretionary factors.
Many commenters said that individuals should not be barred from
DACA by any single offense or offenses where a sentence of less than 90
days was imposed. The commenters stated that adjudicators have applied
the misdemeanor bars inconsistently in the DACA context, State criminal
legal systems present a wide array of different treatment for different
offenses, and regional differences in policing compound the impact of
disparate treatment for individuals who otherwise would be eligible for
DACA. By adopting this measure, the commenters stated that the rule
would increase consistency in DACA adjudications and ensure that
individuals are not disqualified for offenses for which a lesser
sentence was imposed.
One commenter said that TPS has a limit of two misdemeanors, and
this rule should do the same.
Response: DHS acknowledges commenters' suggestion to remove single
defined misdemeanors as disqualifying for DACA purposes, to instead
consider such offenses on a case-by-case basis, and to provide that any
offenses where a sentence of less than 90 days was imposed should not
be disqualifying. DHS further notes commenters' statements that the
categories of offenses listed are vague and broad and that contact with
the criminal legal system is often the result of systemic racism.
Despite the limitations and imperfections of the criminal legal
system, criminal convictions rendered under Federal and State law often
carry immigration consequences. It is therefore consistent with
immigration law generally for DHS to take convictions, including
misdemeanors, into consideration when determining whether to favorably
exercise its enforcement discretion to defer removal action. DHS
maintains that for purposes of consideration under DACA and consistent
with longstanding DACA policy, it remains appropriate for USCIS to take
into consideration a requestor's misdemeanor convictions. The criminal
criteria reflect a targeted approach to considering public safety
concerns, identifying convictions that do not support the favorable
exercise of enforcement discretion, and balancing the positive equities
of the requestor population as reflected in other threshold criteria.
In addition to the merits of this targeted and balanced approach, and
as explained in the proposed rule, DHS has decided to codify the
threshold criteria of the DACA policy as applied by USCIS since 2012 in
part due to recognition of the significant reliance interests in the
continued existence of the DACA policy of individuals who previously
have received DACA grants, and those similarly situated who have not
yet requested DACA, as well as their families, employers, schools, and
communities.\275\ Furthermore, DHS has determined that retaining the
criteria as set forth in the Napolitano Memorandum defines the
population of those who may request DACA to those who are likely to
continue to be a low priority for removal under the Department's
general enforcement priorities. Accordingly, DHS believes the criminal
criteria as proposed, and as implemented for 10 years, enable USCIS to
identify more readily those who are likely to be a low priority based
on their positive equities and successfully advance DHS's important
enforcement mission. Accordingly, DHS will not make any revisions to 8
CFR 236.22(b)(6) as a result of these comments.
---------------------------------------------------------------------------

\275\ 86 FR 53766.
---------------------------------------------------------------------------

DHS acknowledges the commenter's statement that New York
``violations'' are ``non-criminal'' and often lead to denial of DACA
requests. DHS further acknowledges that New York's penal code does not
classify violations, such as disorderly conduct, as ``crimes'' but
rather labels them ``petty offenses.'' \276\ DHS notes, however, that
New York violations are punishable by up to 15 days of
incarceration.\277\ As such, New York violations meet the Federal
definition of a misdemeanor as an offense for which the maximum term of
imprisonment authorized is 1 year or less but greater than 5 days,
which has been in DACA policy since 2012 and is codified in this rule
at new 8 CFR 236.22(b)(6). Moreover, New York violations meet the
minimum constitutional requirements for criminal convictions discussed
by the BIA in Matter of Eslamizar, such as requiring the ``beyond a
reasonable doubt'' standard of proof.\278\ DHS recognizes that certain
low-level crimes, which some States and localities do not term
``misdemeanors,'' will be encompassed under the Federal definition of
that term in this rule. However, DHS believes that the rule's
standardized sentence-based definition helps DHS treat many different
State and local offenses similarly for DACA purposes, rather than
relying on the many variations of terminology and classifications in
State and local penal codes.\279\ For these reasons, DHS declines to
change this rule to exclude New York violations from being considered
misdemeanors for DACA purposes.
---------------------------------------------------------------------------

\276\ N.Y. Crim. Proc. L. Sec. 1.20(39). See also Galenson v.
Kirwan, 324 N.Y.S. 2d 540, 541 (N.Y. Sup. Ct. 1971) (noting the
revision of the N.Y. Penal Law that classified violations as petty
or non-criminal offenses, but that retained criminal procedures and
actions for trying and sentencing offenders).
\277\ See N.Y Penal L. Sec. 10.00(3) (``A `violation' means an
offense, other than a `traffic infraction,' for which a sentence to
a term of imprisonment in excess of fifteen days cannot be
imposed.'')
\278\ See 23 I&N Dec. 684, 687-88 (BIA 2004) (BIA provided
helpful guideposts in assessing whether a conviction for an Oregon
violation was a criminal conviction, including noting constitutional
requirements of beyond a reasonable doubt standard of proof and the
right to counsel where imprisonment is a possibility).
\279\ State law is not controlling for Federal immigration
purposes. See, e.g., Franklin v. INS, 72 F.3d 571(8th Cir. 1995).
---------------------------------------------------------------------------

Driving Under the Influence (DUI) Convictions
Comment: Multiple commenters recommended eliminating misdemeanor
DUI convictions as an automatic bar to DACA, and several recommended
instead a case-by-case review. One commenter said that including a DUI
conviction is extreme, and that there should be allowances for one bad
experience.
Another commenter suggested that DHS clarify its DUI restrictions
under the proposed rule. The commenter stated that DUI charges should
be reviewed on a case-by-case basis, or at a minimum the rule should
provide that a DUI with no aggravating factors is an exception, because
a DUI can have varying degrees of threat and culpability. The requestor
also recommended including an exception for requestors under age 21
with a DUI conviction, absent aggravating factors on a case-by-case
basis. Another commenter acknowledged that violent or drug crimes are a
concern, but similarly stated that a single DUI should not be a bar to
DACA and it is not an inadmissibility ground in other programs. A
different commenter asked why the bar is so high for an undocumented
person just to obtain DACA protections, when there are

[[Page 53231]]

lawyers with multiple DUIs that still hold their licenses.
Multiple commenters stated that DUIs have not been consistently or
fairly adjudicated in DACA requests, which has led to erroneous denials
and requests for evidence that are highly dependent upon the State in
which the applicant resides. For example, the commenters said that: (1)
some State laws criminalize sitting in a vehicle while inebriated,
without attempting to operate it; (2) other States have statutes that
criminalize offenses considered less than a ``regular'' DUI but that
still have some element of impairment, or simply include the word
``impairment'' in the title, and these have been counted as DUI bars to
DACA; and (3) yet other State laws do not require any finding of
impairment of the ability to drive safely due to consumption of a
substance, and some of these laws have been wrongly counted as a DUI
and an automatic bar to DACA. The commenters concluded that because of
this inconsistency, the rule should eliminate DUIs from the list of
specific misdemeanors that would automatically bar someone from
qualifying for DACA.
A commenter stated that, if DHS must continue to include DUIs in
the list of enumerated misdemeanors, at minimum, it should clearly
define that term to ensure consistent adjudication throughout the
country. Because of the diverse State-law definitions of ``DUI,'' the
commenter wrote, requestors are erroneously denied due to a misdemeanor
conviction that may constitute a DUI in one State but not another. The
commenter said that a consistent definition would allow requestors to
assess their eligibility and adequately prepare their requests with a
full understanding of the consequences of their criminal convictions.
One commenter stated that a DUI is inappropriate as a categorically
elevated misdemeanor given the array of circumstances covered and
differential outcomes based on access to counsel and other means that
depend on privilege and racial hierarchies. If DUI is included, the
commenter suggested that elements of the offense should be defined to
require either a blood alcohol content finding of 0.08 or higher or a
finding of impaired ability to drive safely, noting that ICE has used
such a definition. The commenter also recommended defining
``impairment'' as ``to a degree that renders the operator incapable of
safe operation.''
A legal services provider stated that, despite having paid fees,
attended court hearings, and participated in rehabilitation classes,
several of its clients have either lost DACA protection or been
ineligible to apply. The commenter said that the uncertainty and
upheaval to the lives of these individuals is immeasurable and further
stated that individuals who seek to request DACA, and were otherwise
eligible but for a single DUI conviction, will never have the
opportunity to ``rise out of the shadows'' and take a path of greater
success.
One commenter said that the DUI rule should be the same for DACA as
it is for applying for citizenship to leave room for mistakes: if you
have one in the last 5 years or two in the last 10 years, you cannot
apply.
Response: DHS acknowledges commenters' suggestions to remove
misdemeanor DUIs as disqualifying for DACA and instead consider such
convictions on a case-by-case basis and to provide a clear definition
of DUI for DACA purposes. DHS further notes commenters' concerns with
inconsistent adjudications and variations in State law.
DHS maintains that for purposes of consideration under DACA and
consistent with longstanding DACA policy, it remains appropriate for
USCIS to consider a single DUI conviction disqualifying for DACA. The
criminal criteria reflect a targeted approach to considering public
safety concerns, identifying convictions that do not support the
favorable exercise of enforcement discretion, and balancing the
positive equities of the requestor population as reflected in other
threshold criteria. As explained in the proposed rule and elsewhere in
this section, DHS seeks to retain the threshold criteria of the DACA
policy as applied by USCIS since 2012. DHS determined that the best
approach to preserving and fortifying DACA, as directed by the Biden
Memorandum, for these recipients, future similarly situated requestors,
as well as their families, employers, schools, and communities, who
have significant reliance interests in the continued existence of the
DACA policy is to codify the existing threshold criteria.
Accordingly, DHS believes the criminal criteria as proposed, and as
implemented for 10 years, enable USCIS to identify more readily those
who are likely to be a low priority based on their positive equities
and successfully advance DHS's important enforcement mission, and who
are likely to continue to be a low priority under DHS's general
enforcement priorities. DHS agrees with commenters that a clear
definition of a DUI conviction for DACA purposes is valuable to
promoting consistent adjudications, and longstanding internal guidance
has provided such a definition. However, DHS believes that such a
definition is appropriately provided in subregulatory guidance to allow
DHS the necessary flexibility to make revisions if changes in State
laws or other circumstances make such adjustments necessary and
appropriate. Accordingly, DHS will not make any revisions to 8 CFR
236.22(b)(6) as a result of these comments.
Domestic Violence
Comment: Multiple commenters recommended that the rule remove
misdemeanor domestic violence convictions as a categorical bar to DACA,
but most also stated that if the bar is retained, the rule should
include a clear definition of a domestic violence offense for DACA
purposes. Commenters noted that the lack of a definition has led to
inconsistent adjudications and irrational bases for denials. Some of
these commenters stated that, in practice, any misdemeanor related to a
domestic conflict has been deemed a bar to DACA. The commenters said
that consistent adjudications necessitate a definition of a domestic
violence offense and a requirement that the person have been convicted
of that offense. Also, the commenters reasoned, it is not possible for
defense counsel to provide an adequate Padilla \280\ advisal of the
immigration effect of a plea without a clear definition of domestic
violence. In addition, commenters said that DACA requestors who
initially were charged with a domestic offense, but who were either
convicted of a different offense not related to domestic conflict or
never convicted of any offense at all, are routinely denied DACA.
---------------------------------------------------------------------------

\280\ Padilla v. Kentucky, 559 U.S. 356 (2010).
---------------------------------------------------------------------------

Multiple commenters specifically recommended that DHS use the
definition of a ``crime of domestic violence'' from INA sec.
237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), which requires conviction
of a ``crime of violence'' (as defined in 18 U.S.C. 16(a)) in a
qualifying domestic situation. One of the commenters said that
definition ``provides a relevant waiver for survivors of domestic
violence who have a conviction but were not the primary perpetrators of
violence in their relationships.'' Another of the commenters added that
the new DHS enforcement priorities state that ``a categorical
determination that a domestic violence offense compels apprehension and
removal could make victims of domestic violence more reluctant to
report the offense conduct.'' Several commenters noted the potential
impact of the bar on survivors of

[[Page 53232]]

domestic violence, stating that it is not uncommon for both the victim
and perpetrator to be arrested, or for survivors of domestic violence
to be convicted of crimes as a result of their victimization, and
warned that perpetrators could potentially take advantage of the legal
system to terrorize survivors.
One commenter suggested DHS abandon the domestic violence
conviction exclusion and instead adopt a totality of circumstances
approach with a presumption that an individual with a misdemeanor
conviction for domestic violence who was not physically incarcerated
for over 30 days be considered prima facie eligible for DACA.
Response: DHS acknowledges commenters' suggestions to remove
misdemeanor domestic violence convictions as disqualifying for DACA and
instead consider such convictions on a case-by-case basis and to
provide a clear definition of domestic violence for DACA purposes, and
DHS notes commenters' concerns with inconsistent adjudications and the
exclusion's impact on victims of domestic violence.
DHS maintains that for purposes of consideration under DACA and
consistent with longstanding DACA policy, it remains appropriate for
USCIS to consider a single domestic violence conviction disqualifying
for DACA. The criminal criteria reflect a targeted approach to
considering public safety concerns, identifying convictions that do not
support the favorable exercise of enforcement discretion, and balancing
the positive equities of the requestor population as reflected in other
threshold criteria. As discussed above, DHS does so in recognition that
a central purpose of this rulemaking is to preserve and fortify DACA as
directed by the President's memorandum, and modifications to the
threshold criteria related to criminal history, public safety, and
national security could invite additional challenges to the policy. DHS
therefore does not believe that changing the threshold criteria best
serves it purpose of preserving the policy for those DACA recipients
and other similarly situated individuals who have not yet requested
DACA, and their families, employers, schools, and communities, all of
whom have significant reliance interests in the continued existence of
the DACA policy. Accordingly, DHS believes the criminal criteria as
proposed, and as implemented for 10 years, enable USCIS to identify
more readily those who are likely to be a low priority based on their
positive equities and successfully advance DHS's important enforcement
mission. The DHS Enforcement Guidelines acknowledge that a categorical
determination that domestic violence offenses compel apprehension and
removal could make victims more reluctant to report offenses; however,
this is provided as an example in the Enforcement Guidelines of how the
broader public interest is material in deciding whether to take
enforcement action in a particular case, noting the specific facts of
the case should be determinative. As noted in the NPRM and elsewhere in
this rule, the threshold DACA criteria and DHS's broader enforcement
priorities may not always perfectly align, as DHS has determined that
to best preserve and fortify DACA, it is beneficial to maintain the
longstanding threshold criteria rather than to tie the criteria to the
specific DHS enforcement priorities in place at a given time.
Regardless, the approach to domestic violence convictions reflected in
this rule is still generally consistent with the spirit of the DHS
Enforcement Guidelines: while the threshold criteria serve as important
benchmarks for consideration of DACA, they do not prevent or replace a
case-by-case weighing of all relevant factors by USCIS adjudicators,
just as the DHS Enforcement Guidelines emphasize case specific
determinations. DHS agrees with commenters that a clear definition of a
domestic violence conviction for DACA purposes is valuable to promoting
consistent adjudications, and longstanding internal guidance has
provided such a definition. However, DHS believes that such a
definition is appropriately provided in subregulatory guidance to allow
DHS the necessary flexibility to make revisions if changes in State
laws or other circumstances make such adjustments necessary and
appropriate. Accordingly, DHS will not make any revisions to 8 CFR
236.22(b)(6) as a result of these comments.
Minor Traffic Offenses
Comment: Several commenters generally stated that minor traffic
offenses should not be added as disqualifying offenses for DACA
purposes, as a minor traffic offense does not make someone a high
priority for enforcement and would open the door for disproportionately
punishing communities of color, which are generally targeted by law
enforcement. Numerous commenters supported including a definition of
``minor traffic offenses'' to prevent arbitrary deprivation of DACA and
help prevent a minor traffic violation from being incorrectly deemed a
misdemeanor. Multiple commenters recommended that the rule define
``minor traffic offenses'' as any traffic-related infraction,
misdemeanor, or felony where there was no serious bodily injury to a
third party, including driving without a license, driving on a
suspended license, driving without insurance, and violating traffic
regulations such as speeding, regardless of the level of offense under
State law--noting that Florida, Georgia, Illinois, Indiana, Kentucky,
and Missouri all classify driving without a license as a felony. In
contrast, one commenter discouraged DHS from defining ``minor traffic
offenses'' and opposed including language that permits USCIS to
consider such offenses in its discretion, stating that State traffic
and criminal codes create consequences that are proportionate to the
violation and the threat of deportation should never be a consequence
of a minor traffic offense.
Multiple commenters stated that minor traffic offenses should
explicitly be excluded from consideration in a totality of
circumstances analysis, in addition to being excluded from triggering
misdemeanor or felony bars, but stated that where a traffic offense
does involve serious bodily injury, USCIS should use a totality of
circumstances analysis to determine if a favorable exercise of
prosecutorial discretion is warranted. Commenters stated that
undocumented individuals face disproportionate barriers to obtaining
driver's licenses, which they said directly leads to higher instances
of traffic-related offenses. Commenters also noted that police officers
are more likely to stop drivers of color than white drivers and that
consideration of racially disparate minor traffic offenses in a
totality of circumstances analysis compounds the racist impact of such
traffic stops on communities of color. One commenter stated that minor
traffic offenses are irrelevant to the objectives of DACA or any
applicant's fitness.
A commenter said that the proposed rule eliminates the ``minor
traffic offenses'' exception that always has existed and that this
change would be ``fatal'' to new applicants, as almost any young
immigrant who has been here since 2007 has had three or more traffic
tickets. The commenter stated that the preamble language about
considering minor traffic offenses in the totality of circumstances
contradicts the unambiguous and mandatory language of the proposed
rule, and officials would be obliged to follow the rule. The commenter
also said that this provision would result in unequal treatment of
immigrants, depending on where they live and whether their State allows
licenses for undocumented immigrants.

[[Page 53233]]

Response: DHS acknowledges commenters' support for adopting a
definition of minor traffic offenses in light of the variations in
State laws, the suggested definition some commenters provided, and
other commenters' recommendation that such offenses be explicitly
excluded from consideration in a totality of circumstances analysis.
DHS notes that some commenters misunderstood the request for comments
on whether to add a more detailed definition of minor traffic offenses
to the rule as a request for comments on whether to make minor traffic
offenses disqualifying offenses in the rule. DHS does not intend to
treat minor traffic offenses as per se disqualifying for DACA purposes;
rather, DHS will consider such offenses in the totality of
circumstances to determine if a DACA requestor merits a favorable
exercise of prosecutorial discretion. DHS disagrees with the suggestion
that the rule prohibit USCIS from considering such offenses at all, as
excluding particular factors is generally inconsistent with a totality
of circumstances approach.
DHS maintains that for purposes of consideration under DACA and
consistent with longstanding DACA policy, it remains appropriate for
USCIS to consider a requestor's entire offense history along with other
facts to determine whether, under the totality of circumstances, an
individual warrants a favorable exercise of enforcement discretion. The
criminal criteria, including the ability to consider an individual's
entire offense history, reflect a targeted approach to considering
public safety concerns, identifying convictions that do not support the
favorable exercise of enforcement discretion, and balancing the
positive equities of the requestor population as reflected in other
threshold criteria. As explained above, DHS has determined that
retaining the existing threshold criteria is the appropriate mechanism
by which to preserve and fortify the DACA policy. In weighing the
interests of preserving the policy to ensure its continued existence
against altering the threshold criteria, DHS believes the criminal
criteria as proposed, and as implemented for 10 years, enable USCIS to
identify more readily those who are likely to be a low priority based
on their positive equities and successfully advance DHS's important
enforcement mission. DHS agrees with commenters that a clear definition
of minor traffic offenses for DACA purposes is valuable to promoting
consistent adjudications. However, upon consideration, DHS believes
that such a definition is appropriately provided in subregulatory
guidance to allow DHS the necessary flexibility to make revisions if
changes in State laws or other circumstances make such adjustments
necessary and appropriate. Accordingly, DHS will not make any revisions
to 8 CFR 236.22(b)(6) as a result of these comments.
Immigration-Related Offenses
Comment: One commenter stated that the final rule should codify the
exception for immigration-related offenses in the regulatory text, as
USCIS officials would be bound by the regulatory text, not the policy
statements in the preamble to the Federal Register notice. Another
commenter said that criminal exclusions should not be based on
immigration-related conduct, as the proposal rightly recognizes in
eliminating immigration-related offenses characterized as felonies or
misdemeanors under State laws. The commenter said that one of the
starkest examples of criminalizing immigrants is Federal law on border
crossings and recommended removing convictions under 8 U.S.C. 1325
(improper entry) and 1326 (reentry of removed individuals) from
consideration.
Response: As explained in the preamble to the NPRM, DHS intends to
continue its longstanding policy that convictions under State laws for
immigration-related offenses will not be treated as disqualifying
crimes for the purposes of considering a request for DACA. Although the
NPRM did not propose to codify this exception in the regulatory text
and instead only referenced the exception in the preamble, because 8
CFR 236.22(b)(6) specifies that a requestor must not have been
convicted of a felony, misdemeanor as described, or three or more other
misdemeanors and this is an exception to that general premise, DHS
agrees with the commenter's suggestion that this exception for State-
level immigration-related offenses should be codified in the regulatory
text. Accordingly, DHS is revising 8 CFR 236.22(b)(6) to include this
exception.\281\ While DHS acknowledges that certain federal statutes
criminalize unlawful entry and re-entry, such regulation in the field
of immigration is properly within the realm of the federal government,
in contrast with State-level immigration offenses which may be
preempted.\282\ DHS therefore has determined it is appropriate to
consider federal immigration-related criminal offenses in determining
whether the DACA criteria are met. Of course, where appropriate, DHS
may consider such offenses when exercising discretion in individual
cases.
---------------------------------------------------------------------------

\281\ See new 8 CFR 236.22(b)(6).
\282\ See, e.g., Arizona v. United States, 567 U.S. 387 (2012).
---------------------------------------------------------------------------

(7) Age at Time of Request
Comment: A number of commenters suggested that DHS should remove
the proposed rule's criterion that DACA requestors were born on or
after June 16, 1981, (``upper age limit'') and are at least 15 years of
age at the time of filing their request (``lower age limit''), 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.
Some commenters recommended eliminating the age limits to include
requestors who meet all other requirements. Many of these commenters
described the age limits as arbitrary and stated that they unfairly bar
individuals from requesting DACA based on their age when DACA was
announced, which is no fault of their own. Other commenters said the
age limits disregard the benefits of protection for requestors under 15
years old and the continued necessity of protection for individuals who
were older when DACA first was implemented.
Some commenters who suggested removing the upper age limit reasoned
that childhood arrivals excluded by this limit have been living in the
United States for more than 15 years without any immigration relief,
that the limit goes against equal protection and law, and that it
divides families and prevents individuals who have resided in the
United States for decades longer than DACA recipients from receiving
protections. Other commenters said that eliminating the upper age limit
would particularly benefit older noncitizens who are more likely to
have U.S. citizen children, and that doing so also would benefit older
adult learners. Other commenters said that removing this age cap would
further DACA's goal by addressing an arbitrary date that excludes many
otherwise eligible requestors and would allow people who already are
not enforcement priorities to receive lawful status and work
authorization. Some commenters stated that DHS previously attempted to
remove this age cap in a 2014 memorandum that was rescinded following
the 2016 Texas opinion, partially due to failure to comply with the
APA. The commenters said that nothing precludes the agency from

[[Page 53234]]

removing this age cap through the instant notice-and-comment process.
Several commenters also urged DHS to remove the lower age limit,
stating that parents want relief from deportation for their children as
early as possible, and that opportunities for growth and development,
such as school field trips, job opportunities, and driver's permits,
arise before a child turns 15. Additionally, the commenters said that
high school students pursuing a college education would benefit from
having DACA and using their EAD and State identification card to prove
their identity when taking college admission exams, and to be able to
list a Social Security number on college applications. Likewise, some
commenters who supported eliminating the lower age threshold stated
that work authorization is important to youth in agricultural
communities where the Fair Labor Standards Act allows children as young
as age 12 to work in agriculture. Another commenter said the lower age
cap leaves many young noncitizens with the fear of deportation, leading
to poor mental health outcomes.
Some commenters stated that the age at time of request requirements
impose undue barriers for requestors and should be revised. A couple of
commenters suggested lowering the minimum age requirement for
requestors and providing protections to children from removal until
they are eligible to request DACA.
Other commenters discussed the exclusionary effects of the age
restrictions and suggested that USCIS revise the age criterion to
include noncitizens who were not above the age of 35 on June 15, 2012.
Citing sources, one commenter discussed multiple benefits of raising
the maximum age of requestors to 35, including a strengthened economy,
less spending on enforcement, and improved access to healthcare for a
greater number of immigrants. A commenter reasoned that not updating
the outdated age eligibility criteria would have negative consequences
on the health, well-being, and growth of undocumented individuals,
their families, communities, and the economy. Other commenters stated
that changing the dates and removing the age cap to expand eligibility
would demonstrate to Congress the need for legislation to preserve and
fortify DACA.
Response: DHS appreciates the many suggestions of commenters to
modify or remove the upper and lower age caps in the threshold criteria
and recognizes that the criteria exclude certain noncitizens who
arrived as children from consideration for DACA deferred action and
employment authorization and delays it for otherwise eligible
noncitizens until age 15. DHS agrees that it has legal authority to
modify or remove these age caps through notice-and-comment rulemaking.
However, as discussed elsewhere in the NPRM and this rule, DHS has
determined as a matter of policy to focus this rulemaking on preserving
and fortifying DACA by generally retaining the threshold criteria of
the Napolitano Memorandum. Retaining the criteria fortifies the
longstanding policy upon which the DACA population and their families,
employers, schools, and communities have relied for a decade.
(8) General Comments on Criteria and Comments on Multiple Overlapping
Criteria
DACA Eligibility Criteria Related to Age and Dates Should Be Expanded
Comment: Commenters suggested that DHS change certain guidelines so
that the proposed rule and DHS's Enforcement Guidelines correspond with
one another, and so that DHS can concentrate its resources on border
security. Specifically, the commenters recommended that DHS remove the
age cap and require that requestors have continuously resided in the
United States since November 1, 2020, to the time of filing the
request; were physically present in the United States on the date of
enactment of the proposed rule, as well as at the time of filing the
request; and had no lawful immigration status on the date of enactment
of the proposed rule, as well as at the time of filing of the request.
Another commenter suggested that work authorization be expanded to
include recipients regardless of status to add additional security to
the lives of recipients and their families.
Response: DHS acknowledges these commenters' suggestion to amend
certain threshold criteria to align with the Secretary's enforcement
priorities as defined in the Enforcement Guidelines. However, DHS
reiterates that it is issuing this rule to preserve and fortify the
DACA policy, to ameliorate legal uncertainty, and to clarify criteria
for the DACA population, which, along with their families, employers,
and communities, has significant reliance interests in DACA. Nor could
DHS extend employment authorization to any non-DACA population through
this rulemaking due to its limited scope. DHS therefore declines to
make changes to the rule in response to this comment.
High Bar for DACA Recipients
Comment: A commenter said that multiple criteria, including
criminal history and education, set a higher bar for DACA recipients
than for the rest of the U.S. population. Another commenter said that
DACA recipients have registered themselves to be under a microscope--
they have given up their personal information and agreed to a higher
standard than the average citizen.
A commenter stated that DACA has stricter requirements than does
the process of adjustment of status or naturalization, which negatively
impacts young people and their families. The commenter urged DHS to
view DACA recipients as future U.S. citizens and, thus, ensure that the
eligibility requirements are not stricter than those for adjustment of
status or naturalization since strict requirements do not influence
whether a DACA recipient ultimately will gain citizenship.
Response: DHS acknowledges these commenters' statements and
suggestions. DHS reiterates that this rule is a reflection of the
Department's authority to identify a target population--and the
threshold criteria for inclusion in this target population--for
deferred action as an exercise of prosecutorial discretion. DHS agrees
that, by virtue of requesting DACA, requestors must provide personal
information and have the burden to establish they satisfy threshold
eligibility criteria and otherwise merit the favorable exercise of
discretion. DHS reiterates that DACA is a form of time-bound deferred
action, which requires an assessment of positive and negative
discretionary factors. DHS notes that the eligibility criteria for
benefit classifications such as adjustment of status and naturalization
are outside the scope of this rulemaking, and disagrees that criteria
for DACA, an exercise of prosecutorial discretion, necessarily should
align with the criteria for adjustment of status or naturalization. DHS
therefore declines to make changes to the rule in response to these
comments.
Other Comments
Comment: Multiple commenters recommended that the final rule should
explicitly state USCIS will accept new requests to prevent ambiguity
caused by previous court decisions that kept USCIS from accepting new
requests. Some of these commenters wrote that many more people would
qualify for this vital policy if they are able to apply, and these
future recipients should not be excluded as they merit the same

[[Page 53235]]

favorable exercise of discretion. Another commenter said that it
supports DHS's decision to apply the proposed rule to both current and
future DACA requestors, as both groups have reliance interests and
should not be denied significant opportunities afforded by DACA.
One commenter stated that it assumed an extension of time would be
given to requestors who missed a qualification deadline during the time
of the July 16, 2021 injunction.
A commenter said that the proposed rule fails to provide
alternatives to its narrow and outdated coverage. Another commenter
stated that it disagreed with the notion that DACA's coverage cannot be
expanded due to the reliance interests of previous recipients of DACA
and those similarly situated who have not yet requested DACA.
Response: DHS acknowledges these commenters' concerns but for
reasons expressed throughout this preamble, DHS believes the scope of
this rule is amply justified. DHS does not assert in this rulemaking
that reliance interests prohibit DHS from altering the criteria set
forth in the Napolitano Memorandum. Rather, as explained in this rule,
this focus on reliance interests and preservation of the primary
features of the policy is consistent with the President's directive to
preserve and fortify DACA, as well as the Supreme Court's decision in
Regents, as described above. Further, DHS also has determined that the
criteria contained in the Napolitano Memorandum successfully advance
DHS's important enforcement mission and reflect the practical realities
of a defined population of undocumented noncitizens who, because of
limited enforcement resources are 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 rule. Moreover, the establishment and
continued application of these threshold 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. Finally, because this final rule codifies
longstanding threshold criteria, DHS does not believe any requestors
impacted by the Texas decision have qualification deadlines that would
need extension upon implementation of this rule. DHS therefore declines
to adopt changes in response to these comments.
Comment: A commenter expressed support for DACA but recommended
that DHS pick a date and, from that day forward, no person, including
children, should be allowed to remain in the United States without
lawful status.
Response: The comment is outside the scope of the proposed rule.
DHS nonetheless acknowledges this commenter's suggestion, and
emphasizes that it enforces the immigration laws consistent with
available resources, statutory requirements, and agency priorities,
including a particular focus on those who pose a threat to our national
security, public safety, and border security. However, DHS maintains
authority to exercise prosecutorial discretion and defer the removal of
noncitizens lacking lawful status. DHS declines to make changes to the
rule in response to this comment.
5. Procedures for Request, Terminations, and Restrictions on
Information Use (Sec. 236.23)
a. Fees and Fee Waivers
Fees Are Too Low
Comment: A commenter stated that the proposed $85 DACA filing fee
was too low and recommended that this fee should be at least $250.
Another commenter recommended a larger one-time fee. A commenter stated
that DACA requestors should at least pay the full cost of adjudicating
their cases plus a surcharge to fund enforcement and restitution
initiatives. The commenter went on to cite figures relating to USCIS'
backlog. The commenter also stated that USCIS disclosed to Congress in
2018 that to fund DACA processing, the agency dipped into funds from
application fees of lawful visa applicants and their sponsors. The
commenter further remarked that the fee proposed in the NPRM for the
Form I-821D is woefully insufficient to cover the costs associated with
adjudicating a DACA request. The commenter reasoned that the cost of
processing an initial DACA request is $446 and the cost of processing a
DACA renewal request is $216, yet the proposed rule only requires DACA
requestors to pay an $85 fee to cover the cost of fingerprinting,
essentially making the cost of adjudication free to the requestor.
Another commenter stated that USCIS may make $310 less per DACA
request for any number of requests, which could diminish the agency's
budget by $34.9 million annually, or $384 million over the next 11
years. The commenter said that the proposed restructuring of the fees
would make it nearly impossible for USCIS to meet its obligation for
ensuring that the USCIS has enough capital to cover the total cost of
full adjudication for each request considered, which is $332, and USCIS
would recover only $85 of this potential cost from each request. The
commenter remarked that, under the proposed fee restructuring, each
request would recover $247 less than the potential cost of full
adjudication, and that the proposed rule acknowledges that, under the
current structure, USCIS would charge $93 million less than the
estimated full cost of adjudication for every DACA request received
annually. The commenter stated that the final rule should include
evidence to justify the risks of the proposed rule for funding USCIS
operations. The commenter further stated that estimating how many
requestors would no longer apply for employment authorization under the
proposed fee restructuring would allow for more accurate estimates of
the total losses that USCIS would face. A commenter asked if the
Government would be affected financially by the drastic reduction in
the cost of DACA requests, or if the change would be negligible.
Another commenter remarked that more research is needed to justify how
restructuring fees may affect USCIS operations that rely on those fees
for funding.
Response: As explained elsewhere in greater detail, this rule is
amending DHS regulations to codify the existing requirement that
requestors file Form I-765, Application for Employment Authorization,
which currently requires a $410 fee, with Form I-821D, Consideration of
Deferred Action for Childhood Arrivals, and reclassifying the $85
biometric services fee as a Form I-821D filing fee, to recover any
additional DACA adjudication costs.\283\ In the NPRM and Supplemental
Cost Methodology Document, DHS explained that the current $85 fee for
DACA would not recover the full costs for individuals who did not
request an EAD and pay the full costs of the Form I-765. 86 FR 53764.
At the time USCIS conducted its cost analysis for the proposed rule, it
estimated that the unit cost of Form I-821D was $332. Id. This
represents the most recent unit cost estimates for Form I-821D.
---------------------------------------------------------------------------

\283\ See new 8 CFR 236.23(a)(1).
---------------------------------------------------------------------------

USCIS cost estimates may change over time. New information may be
available, such as more recent receipts or adjudication hours.
Estimates may use different assumptions. For example, the Supplemental
Cost Methodology Document in the NPRM docket did not distinguish
between initial and renewal DACA requests. However, the older USCIS
cost estimate cited by a commenter relied on older information

[[Page 53236]]

and distinguished between initial and renewal DACA requests.\284\ That
old estimate used draft FY 2019-2020 fee rule information. The
published proposed rule for the FY 2019-2020 fee rule had different
results than the draft cited by the commenter. In the supporting
documentation accompanying the FY 2019-2020 proposed fee rule, USCIS
estimated the unit cost for Form I-821D was $273.\285\ Ultimately, DHS
removed DACA fees \286\ from the final fee rule, which was later
enjoined.\287\ DHS maintains its position that the $332 in the NPRM and
Supplemental Cost Methodology Document represents a reasonable estimate
of the Government's costs of processing these forms. In the future, DHS
plans to propose new USCIS fees in a separate rulemaking after
reviewing fees for Form I-765 and other immigration benefit
requests.\288\ DHS determined that the cost for adjudicating
concurrently filed Forms I-765 and I-821D, as required in this final
rule, is a negligible increase in costs compared to the $332 estimated
in the NPRM for adjudicating Form I-821D alone. USCIS determined there
is a negligible workload difference between adjudicating Form I-821D
alone and the combined Forms I-821D/I-765 DACA adjudicative
action.\289\ As such, DHS determined the $332 estimated cost in the
NPRM is reasonable to use for the final rule. DACA requestors will
therefore be covering the full cost of adjudicating a DACA request and
should not create a deficit in USCIS' budget. However, DHS disagrees
that DACA filing fees should include a surcharge to fund enforcement
and restitution initiatives because DHS has an interest in ensuring
that requests for DACA are accessible to those who may meet threshold
criteria. As discussed throughout this rule, the DACA policy reflects
an appropriate use of the Department's resources to exercise deferred
action for a specific population of individuals who are low priorities
for removal. As discussed elsewhere, it serves DHS's interest in
conserving enforcement resources when the DACA policy is accessible for
those who are potentially eligible to come forward to submit requests
so that DHS can conduct background checks and determine whether they
merit the exercise of prosecutorial discretion and thereby conserve
other congressionally appropriated resources for higher priority
enforcement uses.
---------------------------------------------------------------------------

\284\ USCIS, USCIS Responses to the Congressional Research
Service (Oct. 2018), https://www.uscis.gov/sites/default/files/document/questions-and-answers/USCIS_Responses_to_Congressional_Research_Service_CRS_Questions_on_DACA_Costs.pdf.
\285\ See USCIS, FY 2019/2020 Immigration Examinations Fee
Account: Fee Review Supporting Documentation (Apr. 2019), https://www.regulations.gov/document/USCIS-2019-0010-0007. On page 24, the
Model Output column of Appendix Table 3, Proposed Fees by
Immigration Benefit Request, is $273 for Form I-821D. Model Output
is the projected total cost from the ABC model divided by projected
fee-paying volume. It is only a unit cost forecast (using a budget)
and not the actual unit cost (using spending from prior years).
USCIS does not track actual costs by immigration benefit request.
\286\ 85 FR 46801.
\287\ See 85 FR 46788 (Aug. 3, 2020) and 86 FR 7493 (Jan. 29,
2021).
\288\ See 87 FR 5241.
\289\ See Table 3 of the Supplemental Cost Methodology Document
and the subsequent paragraph on page 8.
---------------------------------------------------------------------------

Fees Are Too High
Comment: By contrast, many commenters stated that DACA-related fees
are too high and urged DHS to reduce them to make DACA more accessible.
Commenters stated that many requestors come from low-income backgrounds
and struggle to cover the costs. Others noted that the COVID-19
pandemic has resulted in a loss of work for many, while many DACA
recipients continue to work in essential roles, with one commenter
noting that DACA recipients with front-line jobs have endured
additional costs related to acquiring Personal Protective Equipment and
covering the costs of their own healthcare due to exclusions from ACA
subsidies. Many commenters stated that requiring individuals to pay
$495 in fees to renew DACA every 2 years presents a challenging
financial burden. A commenter stated that the cost of filing the
request for deferred action together with the application for work
authorization should be reduced to a level that is realistically
affordable to DACA-eligible requestors based on their age and level of
income. The commenter said that the fees for deferred action and work
authorization together amount to 69 hours of work at the Federal
minimum wage rate, and there is no fee waiver available. The commenter
stated that because the forms are lengthy, with legal jargon and
generally confusing language, many requestors need filing assistance,
with associated costs as high as $900. In addition to the costs of
filing fees and filing assistance are the costs for obtaining
documents, making copies, and mailing them. Other commenters cited
research from the Migration Policy Institute indicating that fees
remain a barrier to DACA renewal and that an estimated 35 percent of
DACA eligible individuals live in families with incomes less than 100
percent of the Federal Poverty Line. Commenters expressed concern that
requestors often seek private loans that later develop into more
challenging financial burdens. Other commenters cited data that 36
percent of DACA recipients reported a delay submitting their request to
raise funds. A number of commenters stated that the fees created
barriers to employment and would lead otherwise eligible noncitizens to
engage in unauthorized employment.
Response: DHS acknowledges these commenters statements related to
DACA related fees. DHS recognizes that the $85 Form I-821D filing fee,
proposed to replace the existing $85 biometrics fee, coupled with the
current $410 Form I-765 filing fee, may present a financial barrier to
otherwise eligible requestors. However, DHS disagrees with comments
that fees are arbitrarily determined. As stated in the NPRM, DHS
recognizes that many DACA requestors are young adults who are
vulnerable because of their lack of immigration status and may have
little to no means to pay fees associated with a DACA request. DHS also
acknowledges that DACA-eligible noncitizens may have a variety of
financial burdens that make it difficult to afford the fees. DHS has
accounted for filing costs to the requestors in the RIA, including the
time burden for completing the request, costs related to assistance in
completing and filing a DACA request, travel costs, and filing fees.
USCIS is funded primarily by immigration and naturalization benefit
request fees charged to applicants and petitioners and must balance the
need to recover some of the costs of reviewing DACA requests with the
humanitarian needs of the DACA requestor population. As discussed in
the NPRM and in this rule, DHS proposed to eliminate the DACA
biometrics fee, replace it with an $85 Form I-821D filing fee, and
unbundle the Forms I-821D and I-765 as a mechanism to recover some
costs of adjudicating these requests while providing an option that
would reduce financial barriers to DACA requestors. However, as
discussed Section II.C.2.c, after careful consideration of comments,
DHS has made changes in the rule to codify the existing bundled form
requirements, thus requiring requestors to concurrently file Form I-
821D with associated $85 filing fee, Form I-765 with associated filing
fee (currently set at $410), and Form I-765WS. DHS has determined this
fee structure to be reasonable because it fully recovers adjudicatory
costs. DHS has already determined, as explained in the NPRM and in the
context of the unbundled filing process proposed, that it is in the

[[Page 53237]]

public interest to hold the fee for Form I-821D, Consideration of
Deferred Action for Childhood Arrivals, below the estimated full cost
of adjudication. But DHS has not so determined for the Form I-765,
Application for Employment Authorization, which is filed by millions of
noncitizens outside the DACA population. Additionally, as DACA is an
act of enforcement discretion designed to allow DHS to focus
enforcement resources on higher-priority cases, DHS believes it is
appropriate for DACA recipients to cover the cost of adjudicating their
requests. DHS therefore declines to make changes to the fee amounts
proposed in the NPRM.
Need for Fee Waivers
Comment: In light of the financial hardship fees present many DACA
requestors, many commenters urged DHS to permit DACA requestors to
request a waiver or reduction of the filing fee, in addition to the
existing limited fee exemption criteria. One commenter suggested
eliminating the fees completely or, at a minimum, providing a fee
waiver. A commenter cited data stating that naturalization almost
doubled when eligible applicants were offered a fee waiver and
increased by 30 percent when they were simply informed of their
eligibility for a fee waiver. One commenter supported a fee waiver,
even if it requires raising the overall fee for DACA requests to cover
the adjudication costs of those who cannot pay.
Commenters proposed a variety of approaches to expand fee waiver
access to the DACA population. Some commenters suggested a ``hardship
waiver'' for individuals under economic or employment difficulties,
including challenges affording secondary education, especially with the
lack of access to Federal and State tuition aid, or those who are
forced to prioritize other costs, such as childcare. Other commenters
recommended reduced fees for individuals not interested in work
authorization, especially students; and fee waivers for employment
authorization applications. A commenter suggested replacing fee
exemptions before applications with regular fee waivers simultaneous to
applications. A commenter suggested that DHS can allow the fee waiver
by amending 8 CFR 106.3 to add a paragraph providing that DACA
requestors may apply for a waiver of any fees for DACA and any
associated filing. Another commenter reasoned that the hardship of a
recurring fee for DACA renewal requestors is considered an emergent
circumstance that allows for USCIS to authorize a fee waiver.
Response: DHS acknowledges commenters' suggestion to make fee
waivers broadly available to DACA requestors. DHS recognizes that fee
waivers may make DACA more accessible to eligible noncitizens who may
have insufficient resources to pay DACA related 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.''
\290\ 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.\291\ As
discussed above, DHS is adopting in this rule the existing bundled
process and fee structure that includes filing fees associated with the
Form I-821D, Consideration of Deferred Action for Childhood Arrivals,
and the Form I-765, Application for Employment Authorization.
---------------------------------------------------------------------------

\290\ INA sec. 286(m), 8 U.S.C. 1356(m).
\291\ 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.
2020); Nw. Immigrant Rts. Proj. v. USCIS, 496 F. Supp. 3d 21 (D.D.C.
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.
---------------------------------------------------------------------------

DHS recognizes that some DACA requestors face economic hardship
that impacts their ability to pay the required fees, but notes that
DACA, as an exercise of prosecutorial discretion that allows DHS to
focus limited resources on higher priority cases, is not an immigration
benefit or associated filing authorized for fee waiver under INA sec.
245(l)(7), 8 U.S.C. 1255(l)(7), and that it is appropriate for
beneficiaries of this enforcement discretion to cover the cost of
adjudication.
In the NPRM, USCIS estimated the full cost for processing Form I-
821D using the agency's established cost methodology and the available
parameters at the time of the review.\292\ USCIS estimated that the
total cost of adjudicating Form I-821D is approximately $125.9 million.
USCIS assumed that all DACA requestors in the workload would pay the
fee.\293\ Dividing the total cost by the estimated DACA workload
resulted in a unit cost of approximately $332 each, as illustrated in
Table 4 of the of the Supplemental Cost Methodology Document. If some
DACA requestors received fee waivers, then that would decrease the fee-
paying workload and increase the unit cost. For example, if only 50
percent of DACA workload paid the fee, then the unit cost would be
approximately twice as high because of the lower divisor.\294\ USCIS
uses 50 percent for illustrative purposes only. USCIS does not know how
DACA fee waivers would affect fee-paying receipts. Based on FY 2021
revenue and receipts, USCIS estimates that approximately 44 percent of
Form I-765 filings unrelated to DACA paid the $410 fee. USCIS analysis
indicated that approximately 77 percent of the TPS population may have
paid the fee for Form I-765 because these individuals have a valid EAD
as of April 12, 2021. Using any of these fee-paying percentages would
reduce DACA revenue estimates.
---------------------------------------------------------------------------

\292\ See Supplemental Cost Methodology Document.
\293\ Id. at 8.
\294\ Id. at 8-9. In Table 4, the Total Cost of Form I-821D
Activities and Cost Objects is $125,853,334. The unit cost is the
total cost divided by 379,500. The calculation for the 50 percent
example is $125,853,334/(379,500 * 50%) = $663.26.
---------------------------------------------------------------------------

DHS estimates that making fee waivers available to DACA requestors
for Form I-765 would result in a reduction of approximately $72,324,000
and $100,105,600 in fees paid in FY 2022 and 2023, respectively, from
the current policy permitting only limited fee exemptions. DHS must
carefully balance the interest of making DACA available to those who
may meet the criteria with the need for adequate resources to process
requests efficiently and effectively. A reduction in fees collected
would either negatively impact processing times or require increased
fee amounts paid by others to offset revenue diminished by waived fees.
In weighing these important interests, and in line with President
Biden's directive to preserve and fortify DACA, DHS has determined that
maintaining the existing fee structure with limited fee exemptions
strikes the appropriate balance. For these reasons, DHS declines to
modify the rule to extend fee waivers for DACA and related work
authorization requests.
Fee Exemptions
Comment: Several commenters urged DHS to broaden its DACA fee
exemption

[[Page 53238]]

policy. Commenters also suggested DHS should, at minimum, codify the
availability of fee exemptions for DACA and DACA-related EADs, stating
that fee exemptions are a valuable failsafe for eligible individuals,
and fee waivers should be available to the DACA requestor population to
facilitate their entry into the workforce. The commenters took the
position that adding a provision to the rule stating fee exemptions
will be available under certain circumstances will help to ensure that
the fee exemptions will remain available to requestors. The commenters
provided draft language for the proposal at 8 CFR 263.23(a)(5) to
clarify the availability of fee exemptions for DACA-related application
for employment authorization. Some commenters suggested codifying the
availability of fee exemptions and expanding to a broader group of
people, such as children under age 18, similar to the policies for U
Nonimmigrant Status petitioners or VAWA self-petitioners.
Response: DHS acknowledges these commenters' suggestion to codify
and broaden its DACA fee exemption criteria. DHS agrees fee exemptions
are necessary in some situations. Under current policy and practice, a
requestor may be considered for a fee exemption if they submit a letter
and supporting documentation to USCIS demonstrating that they meet one
or more of the following circumstances: (1) their annual income is less
than 150 percent of the U.S. poverty level, they are under 18, and are
either homeless, in foster care or otherwise lacking any parental or
other familial support; (2) they cannot care for themself because they
suffer from a serious, chronic disability and their income is less than
150 percent of the U.S. poverty level; or (3) they have, at the time of
the request, accumulated $10,000 or more in debt in the prior 12 months
as a result of unreimbursed medical expenses for themself or an
immediate family member, and their income is less than 150 percent of
the U.S. poverty level.\295\ As discussed in this rule, DHS must
carefully weigh the interest of access to DACA with the need to collect
fees at a level that ensures recovery of the full cost of providing
immigration services except under very limited circumstances. DHS has
determined that the current fee structure with limited fee exemptions
strikes the appropriate balance. For these reasons, DHS declines to
modify the rule to codify or expand fee exemptions for DACA and related
work authorization requests. DHS has further determined that
subregulatory guidance provides the best vehicle for fee exemption
guidance so that DHS maintains flexibility to retain or modify such
agency procedures as necessary in the future, and thus declines to
modify the rule to codify the existing fee exemption guidance.
---------------------------------------------------------------------------

\295\ DACA FAQs.
---------------------------------------------------------------------------

Other Alternatives To Reduce the Fee Burden
Comment: A commenter recommended reducing the total fee for DACA by
half if DHS does not lengthen the 2-year validity period for DACA
related EADs. Another commenter suggested that fee waivers should be
available to DACA renewal requestors, if not available for all
requestors. A different commenter suggested that all fees should be
capped at $250 and that the fee for associated advance parole requests
be reduced or eliminated. Other commenters suggested that DHS
reallocate funds to provide financial assistance and fee waivers for
DACA requestors. Another commenter who suggested that the DACA request
should be free and reasoned that any lost revenue could be replaced by
dissolving ICE and its subsidiary departments. Other commenters
suggested that fees should be as minimal as possible to still maintain
the necessary DHS funding. Another commenter suggested that renewal
fees for DACA should be less than the initial request fees because it
should not take as much labor to review renewal requests. A different
commenter said that the $85 fee for Form I-821D is appropriate if it is
entirely devoted to application processing but suggested a reduction to
the EAD fee. The commenter recommended mitigating costs as much as
possible to facilitate employment.
A commenter suggested that DHS base fees on the requestor's age and
income. Other commenters recommended establishing a family plan to ease
the financial burden on families that must file separately for
individual family members.
Response: DHS acknowledges the suggestions raised by these
commenters. As discussed above, DHS has carefully considered the DACA
fee structure, weighing the interests in recovering the costs of
adjudicating these requests and in reasonably mitigating financial
barriers to requestors. DHS has concluded that the proposed fee
structure, in which the Form I-821D and Form I-765 filing fees, within
a bundled filing process, recover the costs of processing DACA
requests, represents a reasonable approach to balance these interests.
Although DHS recognizes the commenter's suggestion that initial and
renewal requests should have different filing fees because renewal
requests require less time to adjudicate, DHS has concluded that having
two fees would be administratively burdensome and potentially confusing
to requestors. Furthermore, as this rule does not modify longstanding
threshold criteria to expand DACA eligibility, DHS expects that the
majority of DACA requests moving forward will be renewal requests. DHS
therefore declines to make changes to the rule in response to these
comments. DHS also notes that recommendations regarding appropriations,
budget allocation, and dissolution of DHS agencies fall outside the
scope of this rule and declines to address these comments further.
b. USCIS Jurisdiction (Including Comments on Inability To Grant DACA to
Someone in Immigration Detention)
Comment: Most commenters who submitted comments on this topic
requested that USCIS adjudicate DACA requests from detained individuals
rather than require DACA-eligible individuals to secure release from
detention before their request can be granted. Several commenters
expressed concern that the proposed approach would bar detained
individuals from seeking DACA. Other commenters expressed that
extending USCIS jurisdiction over detained individuals would provide
more protection to immigrant youth. Commenters argued that the proposed
framework would deprive certain individuals of the main benefit of
DACA--the ability to demonstrate their low priority for removal and
their eligibility for deferred action (which, according to a commenter,
would necessarily constitute a strong basis for release from
detention). One commenter argued that denying access to DACA to
detained young people deprives them of a tool to advocate for their
release and defend themselves against deportation while in removal
proceedings.
Commenters expressed concern that the proposed approach would lead
to unnecessary and prolonged detention of DACA-eligible individuals. A
commenter similarly opposed the approach stating it would lead to
unnecessary detention, where the commenter stated that they had
witnessed abuse, inadequate legal and medical services, unsanitary
conditions, and lax COVID-19 protocols.
Several commenters expressed concern that DACA decisions should be
made by USCIS and not be subject to separate action or decision by ICE.
Commenters argued that providing

[[Page 53239]]

USCIS jurisdiction over detained cases would permit USCIS to make
informed decisions based on the totality of the circumstances.
Several commenters opposed granting ICE veto power over DACA
decisions. Commenters expressed concern about ICE's decision-making
process for release from detention, stating that the process is
notoriously arbitrary and disorganized and noting inconsistent
decisions would block individuals from receiving DACA even if USCIS
determines an applicant is eligible and merits a favorable exercise of
discretion. Another commenter stated that ICE staff often fail to
execute ICE's mandate, fail to review cases accurately, are
unresponsive to counsel, and are not transparent or accountable in
decision-making. Other commenters expressed concern that ICE or CBP
could prevent renewal of a DACA grant keeping an individual detained,
and cited examples of Inland Empire class members who were unable to
renew their DACA request due to being detained.
A commenter noted that release from detention is often based on
factors that do not bear on an individual's fitness for DACA, and that
decisions about bonds are similarly arbitrary and subject to great
variety across different regions of the United States. Several
commenters stated their concern that ICE and CBP detention decisions
may be based on noncitizens' contact with the criminal legal system
that does not always lead to a disqualifying conviction, and permitting
ICE or CBP to take DACA decisions away from USCIS would unfairly
reproduce racial inequities associated with the criminal legal system
(stating that many DACA recipients are Black, Latinx, or other people
of color whose communities experience a high rate of policing).
Response: DHS acknowledges commenters' concerns regarding the
requirement that detained individuals be released from detention for
USCIS to grant their DACA request. DHS likewise acknowledges
commenters' requests to place DACA decisions solely in the hands of
USCIS rather than ICE or CBP. DHS emphasizes that foundationally, DACA
is a policy guiding the exercise of prosecutorial discretion for
certain individuals who are low enforcement priority, and as such, is
necessarily connected to, and dependent on, immigration enforcement
decisions made by the Department's enforcement agencies. USCIS' role in
considering requests from individuals identifying themselves as low
enforcement priorities does not strip ICE and CBP of the responsibility
to enforce the immigration laws. DHS has determined that the balance of
the relevant agencies' responsibilities is best served by permitting
individuals who have been apprehended and are currently in immigration
detention to identify themselves as DACA-eligible so that ICE may
consider whether they are a low enforcement priority such that they
should be released from custody, after which USCIS may then approve or
deny their request. DHS notes that USCIS has not previously had
jurisdiction to grant DACA to a noncitizen in immigration detention
under custody of ICE and that under longstanding DACA policy, detained
noncitizens were instructed to identify themselves to ICE for potential
release to pursue their DACA request.\296\ Under current procedures,
if, after review, these noncitizens appear to meet the DACA criteria,
ICE may release them to file a DACA request with USCIS.\297\ DHS
believes that, as provided in this rule, permitting detained
individuals to instead begin the DACA request process by filing a
request with USCIS before being released from detention will make the
decision-making process more efficient while maintaining ICE's role in
determining the enforcement priority level of individual detainees.
While requestors may file their requests while detained, under this
rule, USCIS may not grant these requests until the individuals have
been released from detention.
---------------------------------------------------------------------------

\296\ DACA FAQ 12; ICE, Deferred Action for Childhood Arrivals
(DACA) and Deferred Action for Parents of Americans and Lawful
Permanent Residents (DAPA), https://www.ice.gov/daca (last updated
Mar. 17, 2022).
\297\ ICE, Deferred Action for Childhood Arrivals (DACA) and
Deferred Action for Parents of Americans and Lawful Permanent
Residents (DAPA), https://www.ice.gov/daca (last updated Mar. 17,
2022).
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DHS acknowledges the concerns expressed by commenters regarding
release-from-detention policies and the potential impact of decisions
by individual ICE officers. As originally envisioned by the Napolitano
Memorandum, DACA is one portion of implementing the Department's
overall enforcement strategies. The Napolitano Memorandum included
guidelines for identifying low enforcement priority individuals for
deferred action under what became the DACA policy, including those
individuals in detention and removal proceedings, and envisioned
individuals would self-identify as candidates for deferred action.
Similarly, the Department's Enforcement Guidelines set out enforcement
priorities and instruct enforcement agencies to exercise discretion as
appropriate for individuals outside of those priorities. While all
discretionary enforcement and adjudicatory decisions involve multiple
decisions made by a single enforcement officer or adjudicator, DHS
asserts that consistent policies, training, and review best address
concerns of individual ICE officers ``vetoing'' otherwise DACA-eligible
noncitizens. Additionally, DHS has set up a case review process for
noncitizens to obtain expeditious review of enforcement actions,
including decisions on detention.\298\
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\298\ ICE, Contact ICE About an Immigration/Detention Case,
https://www.ice.gov/ICEcasereview (last updated June 24, 2022).
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DHS thanks commenters for highlighting concerns that differential
policing of communities will affect detention decisions based on
contact with the criminal justice system. DHS acknowledges that arrests
and convictions are best understood in the totality of the
circumstances.
DHS acknowledges the related concern that detention of a DACA
recipient could prevent that individual from renewing a DACA grant.
However, individuals with DACA are generally not subject to enforcement
action absent a determination that enforcement discretion is no longer
warranted, typically due to activity that would serve as a basis for
termination of the DACA grant. Additionally, DHS encourages DACA
recipients to file renewal requests within the recommended filing
window to best avoid gaps between periods of deferred action under
DACA.\299\
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\299\ DACA FAQ 49.
---------------------------------------------------------------------------

Inefficiency Concern
Comment: Some commenters suggested it would be more efficient for
USCIS to adjudicate requests from detained noncitizens. Several
commenters stated that the proposed bifurcation of DACA adjudication
for detained and non-detained individuals would be inefficient and
impede individuals from making a showing of low priority for removal
and eligibility for deferred action. One commenter suggested that ICE
be granted authority to adjudicate DACA in certain cases to avoid
double adjudication and promote efficiency.
Response: DHS appreciates suggestions on ensuring efficiency in the
implementation of DACA. DHS emphasizes that USCIS remains responsible
for the adjudication of all DACA requests. As discussed above, USCIS
has determined that permitting detained individuals to request DACA
from USCIS prior to release will increase efficiency. This change will

[[Page 53240]]

also resolve situations under the previous policy where a requestor who
had already been released from detention could be found ineligible for
DACA because they were detained when they submitted the DACA request.
DHS asserts that specific details of intra-department coordination
between ICE and USCIS are best handled through subregulatory guidance
in order to retain operational flexibility and to best respond to the
circumstances that individual cases may present.
Lack of Justification or Rationale for Rule
Comment: Commenters stated there is no reason why USCIS would be
prohibited from adjudicating DACA from detained individuals, noting
that USCIS regularly adjudicates other applications for detained
individuals. Another commenter stated that no other immigration benefit
effectively precludes detained individuals from applying, and that
tying approval for DACA to detention status is unprecedented and
unwarranted. One commenter stated that DHS risks violating the
principle that immigration detention be nonpunitive by promulgating a
DACA rule that deems detained individuals ineligible for DACA. A
commenter stated that there was no evidence on the ICE website
suggesting that individuals cannot be granted DACA while in custody,
and remarked that detained individuals have previously sought and been
granted DACA, with that approval informing subsequent decisions on the
individual's release from custody. The commenter further stated that it
was arbitrary and capricious to require release from custody before
USCIS can grant a DACA request because DACA eligibility requirements do
not require that an individual not be detained and that past practice
had created a reliance interest in adjudicating DACA requests from
detained individuals.
Response: DHS acknowledges that USCIS sometimes adjudicates
immigration applications and petitions benefiting detained individuals.
DHS submits that as a discretionary exercise of prosecutorial
discretion, DACA is difficult to compare to immigration benefits, some
of which may be granted to detained individuals, and refers to the
above response regarding the balance of responsibility between ICE and
USCIS. DHS believes that it would not be appropriate to grant
enforcement discretion under the DACA policy to an individual that ICE
has determined warrants continued detention. As explained above, since
the inception of the DACA policy, USCIS has not exercised jurisdiction
to grant DACA to a detained individual. Both the USCIS DACA FAQs and
the ICE public web page containing DACA information instruct detained
individuals to identify themselves for potential release to seek DACA
with USCIS.\300\ Additionally, to answer the first question on Form I-
821D, Consideration of Deferred Action for Childhood Arrivals, the
requestor states ``I am not in immigration detention.'' \301\
Acknowledging that some cases may present complicated detention
histories, DHS submits that any such request referred to by commenters
was likely granted in error if the requestor was in fact detained at
the time of the adjudication of the request. DHS also notes that the
regulation permits detained individuals to submit requests for DACA to
USCIS, which were previously denied under the existing DACA policy.
Given the longstanding DACA policy, DHS does not believe requestors
have a reliance interest in USCIS adjudicating DACA requests from
detained requestors. DHS recognizes the strong interest a noncitizen in
immigration detention may have in requesting and receiving DACA, but
denies that the rule's approach is punitive; in these cases, the
immigration enforcement entity detaining the potential DACA requestor
applies the Department's enforcement strategy in determining whether to
release that person from detention prior to or in coordination with
another agency's decision to grant deferred action for a period of
time.
---------------------------------------------------------------------------

\300\ DACA FAQs 12-14; ICE, Deferred Action for Childhood
Arrivals (DACA) and Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA), https://www.ice.gov/daca (last
updated Mar. 17, 2022).
\301\ USCIS, Form I-821D, Consideration of Deferred Action for
Childhood Arrivals, https://www.uscis.gov/sites/default/files/document/forms/i-821d.pdf.
---------------------------------------------------------------------------

Further Recommendations
Comment: One commenter criticized DHS for failing to include in the
proposed rule guarantees that ICE would release DACA-eligible
individuals from detention. Another commenter recommended aligning DACA
with other humanitarian programs by providing similar safeguards to
other classes of vulnerable people DHS has recognized as unsuitable for
detention, such as SIJ petitioners, petitioners and applicants for U
and T nonimmigrant status, and VAWA self-petitioners. The commenter
recommended expeditious processing of DACA requests for detainees,
including explicitly allowing USCIS to accept biometrics taken by ICE
to facilitate the processing; that the rule afford automatic stays of
removal for requestors until requests are adjudicated; and that the
rule consider directing immigration judges to sua sponte continue
proceedings where a DACA request is pending, and to terminate or
administratively close proceedings where there is evidence that USCIS
approved a DACA request. The commenter also urged USCIS to consider a
prima facie or bona fide determination process for DACA requestors.
Response: DHS appreciates the suggestion to include guarantees that
ICE will release DACA-eligible individuals from detention. Specific
guidance on how USCIS and ICE will cooperate to address detained
individuals who request DACA is best addressed in subregulatory
guidance.
DHS notes that the DACA policy serves important humanitarian aims,
as do immigration benefit requests such as U and T nonimmigrant status,
SIJ classification, and relief under VAWA; however, there are important
distinctions between DACA--a policy to exercise prosecutorial
discretion to defer removal of noncitizens who demonstrate they are a
low enforcement priority--and those benefits that are designed to
assist abused, neglected, or abandoned minors, and victims of crime,
human trafficking, and domestic battery or extreme cruelty. DHS notes
that, unlike for petitions for U nonimmigrant status, there is no
annual cap on the number of DACA requests that may be approved, and as
a result, requestors do not wait years for a final adjudication of
their request. As a result, DHS has not found it necessary to create a
prima facie or bona fide determination policy for DACA. DHS appreciates
suggestions on managing removal proceedings over the course of the
adjudication of a DACA request. Because the rule is not a joint DHS/DOJ
rule, DHS cannot insert provisions binding EOIR, though it notes the
suggestions as applied to ICE's Office of the Principal Legal Advisor.
DHS appreciates the request to streamline processing by allowing USCIS
to accept biometrics taken by ICE. USCIS is examining whether it has
the legal authority and technical capability to submit to the Federal
Bureau of Investigation biometrics collected by a criminal justice
agency or from a non-criminal justice agency when the biometrics were
collected for a different purpose from USCIS' purpose of use. DHS will
continue to explore the feasibility of permitting USCIS to use
biometrics collected by ICE for

[[Page 53241]]

adjudication of DACA requests from detained individuals.
c. Grants and Denials of a Request for DACA (Including Additional
Evidence, 2-Year Period, Consultations, Notice of Decision)
Two-Year Grant Period for Deferred Action and Work Authorization
Comment: Many commenters opposed the 2-year DACA validity period,
commenting that it is too short, limits DACA recipients' ability to
plan between renewals, and places a financial burden on applicants due
to a frequent and complex renewal process. A commenter also stated that
the validity period undermines the goals of DACA by generating fear of
imminent deportation or loss of schooling or work authorization
approximately every 1\1/2\ years. Commenters expressed concern that the
2-year validity period for DACA and related EADs, coupled with slow
processing times for renewals and a lack of sequential renewal option
(such that DACA is renewed from the date of expiration of the previous
grant, avoiding any overlap in approval periods), negatively impacts
DACA recipients, employers, and others, causing lapses in deferred
action that result in accrual of unlawful presence, lost work
authorization and potentially suffering other lasting harms. A
commenter stated that delays and lapses in employment authorization
result in a trickle-down effect to manufacturers of consumer goods,
customers, and other business stakeholders when applicants lose the
ability to work. Some commenters highlighted that the 2-year period for
DACA EADs creates additional burdens for USCIS, as well as requestors.
Commenters recommended that the DACA grant period be extended
beyond 2 years, with suggestions ranging from 3 to 10 years. Commenters
stated that longer grant periods would result in less taxing
administrative processes and judicial review of renewals and,
consequently, reduced backlogs. Commenters also expressed concern
surrounding the financial hardship DACA recipients face, stating that
many recipients are from low-income families and cannot afford the
renewal fee. A commenter advocating for longer validity periods stated
that working families need and deserve stability and the ability to
plan for the future, and that a 2-year validity period is too short to
provide adequate assurances that it is worth the risk to submit a
detailed, personal application to DHS. The commenter also noted that
the short timeframe creates disincentives for employers looking to hire
and train DACA recipients. Commenters cited studies indicating the
benefits of extending DACA and EAD grants beyond 2 years, including
cost and time savings for applicants, reduced administrative burdens
for USCIS, and avoided consequences for recipients, employers, and the
workforce upon loss of employment authorization. Other commenters
similarly discussed the economic benefits of extending DACA and EAD
grants beyond 2 years. Commenters stated that USCIS approves more than
98 percent of DACA renewal requests each year and extending the
validity period would reduce the burden of biennial renewal requests,
while supporting DHS's stated policy goal of prioritizing limited
enforcement resources. The commenters further stated that the
Department could make this extension without undermining its
enforcement authority, as it would retain the discretion to revoke DACA
at any time.
Response: DHS acknowledges these commenters' concerns regarding the
2-year validity period for DACA and associated employment
authorization. DHS recognizes and appreciates that biennial renewal
requests may cause uncertainty for DACA recipients and employers and
impose higher costs than a longer validity period. DHS also agrees that
extending DACA and associated EAD validity periods could improve
stability for recipients and reduce adjudicatory costs. DHS
acknowledges one commenter's concern that the 2-year validity period
could provide a disincentive for employers to hire and train DACA
recipients, but notes that the commenter did not provide data to
support this statement, and other sources indicate an 84- to 89-percent
employment rate among DACA recipients.\302\
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\302\ Congressional Research Service, Deferred Action for
Childhood Arrivals (DACA): By the Numbers (Apr. 14, 2021), https://sgp.fas.org/crs/homesec/R46764.pdf.
---------------------------------------------------------------------------

DHS must carefully balance the benefits of a longer validity period
with the nature of deferred action as a discretionary, temporary
exercise of prosecutorial discretion. In other contexts, DHS has
provided deferred action for periods both greater than and less than 2
years. As DACA recipients do not have an underlying petition or
application for nonimmigrant or immigrant status pending adjudication,
DHS believes 2 years is an appropriate frequency for review and
decision on whether to continue to favorably exercise discretion in the
form of deferred action. DHS also has determined that codifying the
longstanding 2-year validity period for deferred action best achieves
President Biden's directive to preserve and fortify DACA. DHS
appreciates that DACA recipients may risk either overlap or gaps in
their DACA and EAD validity periods when renewing their requests and
reiterates the importance of filing their renewal requests in
accordance with guidance published on the USCIS website to mitigate
these risks. Regarding a commenter's concern that 2 years is too short
of a period of both deferred action and employment authorization to be
worth the risk of submitting detailed, personal information to USCIS,
DHS notes that this rule clarifies longstanding policy protecting
information provided in DACA requests from disclosure to ICE and CBP
for the purpose of immigration enforcement proceedings unless DHS
initiates immigration enforcement proceedings against the requestor due
to a criminal offense, fraud, a threat to national security, or public
safety concerns.\303\ DHS therefore declines to make changes in the
rule in response to these comments.
---------------------------------------------------------------------------

\303\ See new 8 CFR 236.23(e).
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DACA Renewals: Sequential Grant Periods
Comment: Some commenters stated that, due to fluctuating processing
times and concerns over losing work authorization, DACA recipients
rarely benefit from the full 2-year validity period in practice. As
such, these commenters stated that most DACA recipients submit their
renewal applications well before the grant has expired, resulting in
additional time and costs for requestors and USCIS. Because USCIS
currently assigns the renewal approval date as the date the validity
period begins, early filing can result in an overlap between the grant
periods, described by one commenter as reducing the effective validity
period to 1\1/2\ years.
Commenters recommended that the agency instead issue sequential
approval validity dates for renewal requests. Some of these commenters
stated that sequential grants, which they asserted were previously
piloted, would allow DACA recipients to receive full 2-year periods of
deferred action rather than one overlapping into the next. Commenters
stated this would allow recipients to avoid disruptions to their work
or education and better plan for the future, while another commenter
stated it would mitigate the punitive effect on recipients who file
renewal requests early. Another commenter

[[Page 53242]]

suggested that sequential grant periods would reduce USCIS' workload.
Response: DHS thanks commenters for the suggestion to forward-date
DACA and associated EAD validity periods. DHS recognizes that this
suggestion could reduce recipients' disruptions to education and
employment and mitigate the risk of gaps or significant overlap in
validity periods. DHS notes that sequential grant periods were not
previously piloted, but will continue to evaluate operational and
processing mechanisms to improve efficiency and reliability for the
DACA population and, if appropriate, issue subregulatory guidance. DHS
therefore declines to make changes to the rule in response to these
comments.
Automatic Renewals or Extensions
Comment: Some commenters urged USCIS to issue automatic extensions
of deferred action and work authorization validity upon receipt of a
DACA renewal request or when USCIS is experiencing staffing issues and
processing delays. Commenters suggested automatic extensions would
mitigate the profound impact of lapses in protection and disruption in
employment for those who timely file renewal requests but risk lapse
due to USCIS backlogs, as well as assist requestors who experience
other financial and practical obstacles in the renewal process. As an
alternative to automatic EAD renewals, commenters suggested that the
agency add DACA to the list of employment authorization categories that
receive an automatic 180-day extension of their EAD validity period
when an employment authorization renewal application is timely filed. A
commenter noted that the alternative 180-day automatic extension is an
existing process that currently includes TPS holders. The commenter
further reasoned that allowing for automatic extensions would be in
line with the agency's rationale that this safeguard provides
additional stability to U.S. employers and individuals eligible for
employment authorization. A commenter added that allowing the receipt
notice for a DACA-based EAD renewal application to serve as temporary
work authorization would avoid disruptions to the workforce and free up
USCIS resources used towards inquiries on pending cases.
Response: DHS appreciates these commenters' suggestions to
automatically extend deferred action and employment authorization
temporarily upon filing of a DACA renewal request. DHS notes that in FY
2022, USCIS has reduced median processing times for DACA renewal
requests and related employment authorization requests to 0.5 months,
as of May 31, 2022.\304\ DHS reiterates that the decision to grant
deferred action--initially and upon a renewal request--is a case-by-
case determination of whether to favorably exercise prosecutorial
discretion. Providing automatic temporary extensions of deferred action
to DACA renewal requestors would be inconsistent with DHS's treatment
of other deferred action populations' requests for renewed deferred
action and the nature of enforcement discretion. DHS therefore declines
to modify the rule to codify automatic temporary extension of deferred
action based upon the filing of a renewed request. As employment
authorization granted in connection with DACA is predicated upon the
grant of deferred action, DHS also declines to make changes to the rule
to qualify DACA renewal requestors for automatic extensions of their
EADs beyond the validity of the underlying deferred action. DHS
acknowledges that certain applicants who have filed Form I-765 in other
categories are eligible for the automatic temporary extension. However,
under 8 CFR 274a.13(d)(iii), a category can only be designated as
eligible if the category does not require the adjudication of an
underlying application or petition before the adjudication of the
renewal application. DACA-based renewal requests for employment
authorization do not meet this regulatory requirement.\305\ DHS
therefore declines to make changes to the rule in response to these
comments.
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\304\ USCIS, Historical National Median Processing Time (in
Months) for All USCIS Offices for Select Forms By Fiscal Year,
Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,
2022).
\305\ See USCIS, Automatic Employment Authorization Document
(EAD) Extension, https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension (last updated July 22, 2022).
---------------------------------------------------------------------------

Lapsed DACA Requestors
Comment: Some commenters recommended that USCIS deem as a renewal
request any request from an individual who has previously been granted
DACA, regardless of the length of time since their prior DACA grant
lapsed. Citing instructions for USCIS considerations of DACA requests,
a commenter opposed the current policy whereby DACA requests qualify
for renewal only if the requestor files within 1 year after their last
period of deferred action expired. The commenters concluded that, as
DHS is enjoined from granting initial DACA requests, current policy
bars eligible individuals from obtaining DACA when they delay renewal
due to financial, legal, or other reasons. Commenters suggested that
the policy could be updated in the instructions and online DACA FAQs.
A commenter recommended that USCIS provide an optional backdating
of deferred action grants for requestors whose DACA expires and who
later apply for initial or renewal of DACA. This, the commenter said,
would prevent requestors from accruing unlawful presence during USCIS
adjudication delays or other barriers to renewal.
Response: DHS acknowledges and thanks these commenters for their
suggestions. DHS recognizes that in light of the Texas district court
order, former DACA recipients whose DACA has lapsed for more than 1
year are precluded from receiving a renewed grant of DACA. However, DHS
reiterates that this rule aims to preserve and fortify DACA for both
initial and renewal requestors. DHS notes that ``initial'' DACA
requests must be accompanied by evidence demonstrating that the
requestor meets all of the DACA guidelines at the time of filing, while
renewals only require evidence of some of the criteria, on the
understanding that only some criteria are related to factors that are
more prone to change (e.g., comparing evidence of criminal history to
evidence that the requestor entered the country before 2007). DHS
believes it is important to retain the ability to fully review
eligibility in cases where DACA has been allowed to lapse for a
significant period of time. DHS also believes that granular policy
matters such as filing requirements for lapsed recipients are better
addressed through subregulatory guidance and therefore declines to
modify the rule in response to these comments. DHS also declines to
make changes to the rule to allow for back-dating DACA grants to
retroactively eliminate the accrual of any unlawful presence for
individuals whose DACA expires and later are granted DACA again. As
discussed above, deferred action is a forward-facing step; the decision
to forbear removal of a noncitizen for a period that has already past
would be meaningless. For these reasons, the Department does not
believe it may properly erase a person's pre-DACA unlawful presence by
beginning deferred action from a date in the past.
DHS Should Waive Biometrics Collection for Renewal
Comment: Several commenters urged the agency to utilize existing
biometrics

[[Page 53243]]

for DACA renewals rather than requiring new biometrics every 2 years
upon renewal. Some of these commenters reasoned that there is no clear
rationale for requiring new biometrics as biometrics are unlikely to
change, and requesting them is costly for both the Government and
requestors. Some commenters further reasoned that Application Support
Center closures during the COVID-19 pandemic and the successful use of
prior biometrics demonstrate that this step is unnecessary for DACA
renewal. A commenter further reasoned that many DACA requests face
significant physical and psychological struggles with presenting for
biometrics. The commenter requested that, at minimum, USCIS allow the
reuse of biometrics upon the request of requestors or their
representatives where presenting for biometrics would impose an
unnecessary burden on the requestor.
Response: DHS acknowledges commenters' suggestion to reuse
requestor biometrics for DACA renewal requests. DHS notes that as of
May 31, 2022, USCIS reduced FY 2022 median processing times for DACA
renewal requests and related employment authorization requests to 0.5
months.\306\ DHS continues to evaluate and implement, as appropriate,
strategies to improve efficiency in processing DACA requests. DHS
thanks commenters for the suggestion to reuse biometrics, but wishes to
maintain flexibility in this type of processing decision and will
consider whether to adopt this suggestion in subregulatory guidance.
DHS therefore declines to make changes to the rule in response to these
comments.
---------------------------------------------------------------------------

\306\ USCIS, Historical National Median Processing Time (in
Months) for All USCIS Offices for Select Forms By Fiscal Year,
Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,
2022).
---------------------------------------------------------------------------

Denials of a Request for DACA
Comment: Some commenters urged USCIS to provide requestors the
reasons for denial or intended denial and allow requestors an
opportunity to respond, with one commenter stating the requirement to
submit another request without full knowledge of any administrative or
eligibility errors in the first request unnecessarily increases costs
for the individual seeking protection or renewal of protections.
Response: DHS appreciates these suggestions. Given the nature of
deferred action as an exercise of prosecutorial discretion, as opposed
to a benefit request, defined in 8 CFR 1.2, the decision to not confer
deferred action, either initially or upon a renewed request, is
appropriately an action within DHS's sole and unreviewable discretion.
DHS further notes that as a matter of existing practice and policy,
USCIS typically issues either a Request for Evidence or a Notice of
Intent to Deny that identifies the reason(s) DHS intends to deny, and
provides an opportunity for requestors to respond before a request is
denied. Furthermore, if DHS denies a DACA request, the notice of denial
will generally state the reasons for denial. DHS acknowledges that a
request denied as a matter of discretion will not repeat the negative
discretionary factors in the request, but those issues are identified
to the requestor in the RFE or NOID prior to DHS issuing a denial. DHS
therefore declines to make changes to the rule in response to these
comments.
Other Comments and Recommendations
Comment: One commenter suggested that the agency consider a faster
request process such that requestors would be able to apply between 30
and 45 days prior to the EAD permit expiring and possibly eliminating
the fingerprinting process.
Response: DHS acknowledges this commenter's suggestions, but
believes that operational considerations to improve adjudicatory
efficiency and the potential reuse of biometrics for renewal applicants
are better addressed through subregulatory guidance. DHS therefore
declines to make changes to the rule in response to this comment.
d. Notice to Appear or Referral to ICE
Comment: Some commenters stated that automatic NTAs after denial
should not be permitted under any circumstances. While the commenters
supported the rule's listing of situations in which USCIS would issue
an NTA or refer a denial to ICE, noting it would provide clarity for
requestors, they expressed concern about the inclusion of denials for
fraud on that list. The commenters expressed concern that issuing an
NTA after a denial for fraud could have a ``chilling effect'' on
requestors that might frustrate DACA's ultimate goals, as requestors
unfamiliar with immigration law could worry that simple errors could be
perceived as fraud. The commenters asserted that issuing NTAs to fraud-
based denials does little to further the sensible DHS priorities of
``protecting national security, border security, and public safety.''
Response: DHS appreciates the commenters' concerns, and notes that
NTAs are not automatic, as each denial and decision to initiate removal
proceedings by issuing an NTA or referring a denied requestor to ICE is
made by an adjudicator after assessing the evidence in a case. In
response to the suggestion that denials for fraud should not be issued
an NTA, DHS notes that the proposed 8 CFR 236.23(c)(2) codifies and
clarifies longstanding DACA policy, including on referring fraud-based
denials to ICE for purposes of removal proceedings.\307\ As such, DHS
does not anticipate a change in requestors' behavior based on fear of
filing errors being mistaken for fraud. However, DHS appreciates the
concern and will consider public perception when developing filing
instructions, website language, and other public messaging. DHS
strongly disagrees that countering immigration fraud does little to
further DHS priorities. Combatting fraud and misrepresentation is
central to DHS's mission and to DHS's ability to provide immigration
benefits and relief to qualifying individuals. In recognition of this
principle, Congress provided a specific ground of inadmissibility to
address the use of fraud or willful misrepresentation when obtaining a
benefit under the INA.\308\
---------------------------------------------------------------------------

\307\ DACA FAQ 26.
\308\ INA sec. 212(a)(6), 8 U.S.C. 1182(a)(6).
---------------------------------------------------------------------------

e. Appeals and Reconsideration
Comment: A few comment submissions addressed appeals and
reconsideration of DACA denials. A few commenters said that the final
rule should include a reconsideration process for requestors to
challenge denials, with procedural protections and legal
representation. While recognizing that reconsideration motions and
appeals may not be required, one commenter stated that this does not
explain why the proposed rule does not create a process for challenging
denials and stated that the costs of an erroneous denial to the
requestor, their family, community, and society are too high to rely on
re-request as the sole corrective. One commenter stated that to promote
filing and fairness, DACA requestors should have, among other things,
avenues to challenge denials or terminations.
Commenters opposed the proposed rule's exclusion of administrative
appeals, reopening, or reconsideration stating that it violates USCIS'
inherent authority to exercise discretion to review prior decisions, as
Service Officers generally retain an inherent ability to review past
decisions via motion or appeal, citing 8 CFR 103.5 as an example.
Commenters also noted that the proposed rule would limit the

[[Page 53244]]

authority inherently granted to all USCIS officers and add another
unnecessary burden to an immigration system that is already
overburdened with gratuitous regulatory and administrative
complications. Commenters further stated that the proposed rule would
not stop officers from acting of their own accord and questioned
whether attempting to foreclose any review of past DACA decisions would
result in an increase in motions and letters requesting the reviewing
Service Officer to exercise discretion to reconsider their decision via
self-motion. Commenters also stated that the proposed rule will
undermine USCIS' ability to adjudicate DACA requests, because the
failure to provide an opportunity for reconsideration will undermine
the deference attributed to USCIS when a DACA decision is challenged in
APA litigation. The commenters noted criticism of the AAO and stated
that USCIS should instead be empowered to exercise its inherent
authority to review past DACA denials or rejections. The joint
submission stated that DACA requestors must be afforded a mechanism for
challenging denials on the basis of abuse of discretion and that
whether a mechanism is embedded in the proposed rule will not prevent
DACA recipients from attempting to challenge a DACA denial through an
APA challenge. Finally, the submission stated that this would be one of
the only instances where an applicant is barred from seeking to have a
negative decision reviewed, reconsidered, or appealed, which they
stated is notable given the lack of uniformity and clarity on which
misdemeanors make an applicant ineligible, for example.
One group of commenters stated that incentivizing denied requestors
to create and submit new materials rather than appealing or amending
their prior requests burdens both USCIS and requestors because USCIS
must reprocess and consider requests that are only marginally different
from those it already considered, while requestors spend additional
money on filing fees and try to ascertain and fix the error that led to
the prior denial. The submission stated that allowing amendments to
requests prior to denial would reduce workloads, as requestors could
correct their forms that otherwise would impact their requests. They
further stated that creating an appeal structure would not be
procedurally difficult because such a structure already exists for
appealing denials caused by administrative errors, and parallel
structures already exist for most other immigration processes through
the AAO. They stated that expanding the existing DACA appeals process
to accommodate substantive appeals and allow amendments to correct
requestor errors is not likely to be substantially difficult.
Response: DHS appreciates commenters' suggestion that the rule
include a reconsideration process for challenging denials or
terminations. However, DHS disagrees with commenters that such a
process is appropriate for DACA decisions. Given the nature of deferred
action as an exercise of prosecutorial discretion, rather than as a
benefit request as defined in 8 CFR 1.2, the decision not to exercise
favorable enforcement discretion or not to continue to do so is
appropriately an action within DHS's sole and unreviewable discretion.
While DHS recognizes that refiling a DACA request after denial
requires an expenditure of money, time, and effort for the DACA
requestor, so too would filing a motion to reopen/reconsider or an
administrative appeal to the AAO, if USCIS were to permit such motions
or appeals. Individuals seeking reopening, reconsideration, or appeal
of a benefit request must do so by filing a Form I-290B, Notice of
Appeal or Motion with a statement and supporting evidence, and
generally must pay a $675 fee.\309\ DHS additionally notes that it
generally issues an RFE or a NOID before denying a DACA request,
providing requestors notice of deficiencies in the request and an
opportunity to fix them.
---------------------------------------------------------------------------

\309\ Only special immigrant Iraqi or Afghan nationals who work
for or on behalf of the U.S. Government are not required to pay the
Form I-290B filing fee.
---------------------------------------------------------------------------

DHS also disagrees with commenters who state that by not providing
for administrative appeals or motions to reopen or reconsider, DHS is
violating USCIS' inherent authority to exercise discretion to review
prior decisions. The preamble to the proposed rule specifies that USCIS
would still be permitted to reopen or reconsider a DACA approval or
denial on its own initiative.\310\ The rule does not impact USCIS'
inherent authority to reopen or reconsider its decisions, in its
discretion. Further, under current policy and practice as reflected in
DACA FAQ 25,\311\ USCIS may also reopen or reconsider its DACA
decisions if a DACA requestor seeks review of their DACA denial by
contacting the USCIS Contact Center for creation of a Service Request,
where the requestor believes USCIS incorrectly denied the request due
to certain administrative errors. DHS intends to maintain the ability
for requestors to request review via the Contact Center in certain
limited circumstances involving administrative error, however DHS
believes this process is best suited to subregulatory guidance.
---------------------------------------------------------------------------

\310\ 86 FR 53769.
\311\ DACA FAQs.
---------------------------------------------------------------------------

DHS further disagrees with commenters who state that the rule will
undermine the deference attributed to USCIS when challenged in APA
litigation and in any event, does not believe that the availability of
deference to USCIS' decisions on DACA requests when challenged in
litigation should determine how the final rule addresses the
availability of appeals and reconsideration.
While DHS agrees with commenters that an existing appeal structure
exists at the AAO for certain benefit requests, DHS disagrees with the
cited criticism of the AAO and maintains that establishing an appeal
process for DACA denials is inconsistent with the nature of deferred
action as a temporary, favorable exercise of immigration enforcement
discretion that gives some cases lower priority for enforcement action.
Accordingly, DHS is not making any changes to 8 CFR 236.23(c)(3) in
response to public comments.
f. Termination of a Grant of DACA (Including Comments on Discretionary/
Automatic Termination and Alternatives)
Notice of Intent To Terminate and Automatic Termination Upon Filing an
NTA
Comment: No commenters wrote to support the termination provisions
presented as the primary proposal in the proposed rule. Many commenters
stated that USCIS should be required to provide a Notice of Intent to
Terminate (NOIT) prior to terminating DACA in all cases in order to
provide notice of the proposed grounds for termination and a fair
opportunity to respond. Several of these commenters said that this
change would preserve due process by allowing DACA recipients the
opportunity to correct misinformation and provide supplementary support
or documentation, thus preventing unjustified terminations. Similarly,
many commenters emphasized the importance of fairness and accuracy in
the decision process for terminating a DACA grant, stating that
terminating a DACA grant without notice or opportunity to respond is
inconsistent with the rule's principle of allowing USCIS to make
decisions based on the totality of the circumstances. Commenters also
stated that terminating a DACA grant without notice would be

[[Page 53245]]

arbitrary and capricious in violation of the APA.
One commenter suggested that USCIS implement the third proposed
alternative in the NPRM 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 termination.
Another expressed general agreement with implementing this third
alternative but requested that the agency provide a narrower definition
of cases involving criminal offenses or concerns regarding national
security or public safety so as to only include the most extreme
threats to public safety.
One organizational commenter stated that it was disappointed that
the proposed regulation at 8 CFR 236.23(d)(1) would permit USCIS to
terminate a DACA grant at any time in its discretion with or without
issuance of a notice of intent to terminate and urged USCIS to provide
DACA recipients with a fair process before termination. The commenter
requested that, at minimum, USCIS provide the recipient with an
opportunity to respond, reasoning that procedural fairness is essential
to minimize the risk of erroneous deprivation and to decrease racially
disparate outcomes. The commenter proposed various amendments to the
language at 8 CFR 236.23(d)(1) regarding USCIS' discretionary authority
to terminate DACA. The commenter stated that providing notice and an
opportunity to respond would: (1) decrease the risk of erroneous DACA
terminations; (2) decrease the potential for racially discriminatory
decision-making; and (3) honor the deeply held reliance interests that
DACA recipients possess.
Many commenters opposed automatic termination based on the filing
of an NTA, stating that the rule should not allow ICE or CBP to force
USCIS to automatically terminate DACA by issuing and filing an NTA.
Some of these pointed out that allowing ICE or CBP to take these
actions is contradictory to the core principle of the proposed DACA
regulations, which allows USCIS to make considered decisions based on
the totality of the circumstances. Similarly, other commenters stated
that automatic termination of DACA upon issuance of an NTA undermines
the tenets of DACA, which protects against removal and can be requested
while in proceedings. Other commenters stated that USCIS is in the best
position to make DACA determinations based on agency policy and that
ICE and CBP should not be permitted to override USCIS' determinations.
Commenters also stated that automatic termination upon NTA filing is
arbitrary and capricious under the APA.
Multiple commenters expressed concerns that the proposal would
perpetuate racial disparities in policing and the criminal justice
since, since NTAs are often issued as a result of encounters with local
law enforcement, which disproportionately impact Black people and other
people of color. Many other commenters expressed similar concerns,
adding that criminal charges are often later dismissed, but if a DACA
recipient is placed in removal proceedings on the basis of a criminal
charge that is eventually dismissed, their DACA protections are
unjustifiably terminated regardless.
One commenter also stated that automatic termination would be a
significant change to policy without adequately addressing DACA
recipients' serious reliance interests, particularly for those granted
DACA after the filing of an NTA or in the presence of a final order of
removal who have made career and life plans for the immediate future in
reliance on the continuation of DACA, and specifically, on the
continuation of the individual's DACA despite the filing of an NTA.
Another stated that there are significant reliance interests in the
continuation of existing DACA grants because people make consequential
decisions based on the 2-year grants of deferred action and many rely
on DACA recipients for financial, emotional, and other support.
Many commenters supported the NPRM's first option in alternative
two: striking the provision regarding automatic termination of DACA
solely based on the filing of an NTA for all DACA recipients. Some
recommended going further and specifically prohibiting DACA termination
based solely on the filing of an NTA, with one proposing to allow
exceptions for fraud, national security threats, or public safety
concerns with additional safeguards and a NOIT. Multiple commenters
stated that the alternatives proposed did not go far enough and
presented problems with consistency and due process. One stated that
they agreed with only the second proposed alternative, which would
strike or modify the provision regarding automatic termination of DACA
solely based on the filing of an NTA. A few commenters opposed the
second option in alternative two, stating that tying automatic
termination to the issuance of a final removal order would be
irrational since individuals with final orders of removal still can be
granted DACA. One commenter suggested that the later point in the
process when DACA should terminate automatically is upon removal. A few
commenters opposed the first alternative--limiting automatic
termination based on NTA filing to certain individuals, such as those
subject to investigation, arrest, or conviction of an Egregious Public
Safety (EPS) offense or who fall within certain terrorism or national
security-related inadmissibility or deportability grounds--as too broad
and vague, and as continuing to present due process concerns.
Multiple commenters recommended that, at a minimum, if DHS is not
inclined to provide NOITs before terminating DACA in all cases and to
eliminate automatic termination upon NTA filing, the rule should codify
the approach required by the Inland Empire-Immigrant Youth Collective
v. Nielsen (``Inland Empire'') injunction and apply it to all DACA
recipients. Commenters stated that DHS provided insufficient
explanation for why DHS proposes to depart from the Inland Empire
approach that it has followed for nearly 4 years and why instead DHS
seeks to codify an approach that was already found unlawful by the
Inland Empire court.
Response: DHS agrees with commenters that in most cases, there are
good reasons to give DACA recipients adequate notice and an opportunity
to respond prior to termination of their DACA. This approach will
promote fairness and accuracy in the decision-making process for
terminating a DACA grant by allowing DACA recipients the opportunity to
correct any incorrect information and provide supplementary information
to rebut the intended basis for termination.
DHS further agrees that the Inland Empire preliminary injunction
provides a framework for the limited circumstances in which termination
without a NOIT is necessary. However, DHS now intends to issue NOITs in
even broader circumstances than required by Inland Empire, in
recognition of the concerns raised by commenters about fairness and
accuracy in the termination process. Accordingly, DHS is revising 8 CFR
236.23(d) to adopt the first option in alternative two (eliminate
automatic termination based on filing of an NTA) and to codify that
USCIS will issue a NOIT prior to terminating DACA in most circumstances
not involving travel without advance parole, but retains discretion to
terminate without a NOIT when the DACA recipient has been convicted of
an EPS offense or a national security offense. For these purposes, an
EPS offense is a crime

[[Page 53246]]

involving significant risk to the safety of others,\312\ and a
conviction for a national security offense is a conviction relating to
conduct described in 8 U.S.C. 1182(a)(3)(B)(iii) (terrorist activity),
(iv) (engage in terrorist activity), or 1227(a)(4)(A)(i)) (national
security). This approach is a modified, simpler approach than required
by the Inland Empire injunction, which permits USCIS to proceed quickly
to termination (but not automatic termination) for those individuals
who present a potential egregious public safety or national security
risk. Eliminating automatic termination based on NTA issuance and
generally providing NOITs except in circumstances involving certain
convictions also mitigates commenters' concerns that automatic
termination fails to take into consideration DACA recipients' reliance
interests.
---------------------------------------------------------------------------

\312\ See, e.g., definition of EPS in Revised Guidance for the
Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases
Involving Inadmissible and Removable Aliens, USCIS PM-602-0050 (Nov.
7, 2011).
---------------------------------------------------------------------------

Automatic Termination Upon Departing the United States Without Advance
Parole
Comment: Many commenters opposed automatic termination due to
departure without advance parole, and multiple commenters specifically
supported the fourth alternative proposed in the NPRM: providing an
exception for departure without advance parole under exigent
circumstances. Commenters said that this change would give DACA
recipients much-needed flexibility, as recipients may experience
emergency situations where they need to leave the country temporarily,
but do not have time to obtain an advance parole document, or where the
departure is brief and accidental. One commenter described obtaining an
advance parole document as an arduous process that can take weeks,
which complicates efforts to seek emergency advance parole when
visiting a dying family member or attending to other pressing matters.
Another commenter stated that the USCIS Contact Center may be unable or
unwilling to schedule an in-person emergency advance parole appointment
in time for those who need to depart on short notice. If given an
appointment but denied emergency advance parole, the commenter stated,
the DACA recipient would need to make the impossible choice between
seeing a loved one for the last time and maintaining their right to
reside and work in the country they call home.
Commenters supported what they called a more humane approach that
would consider the totality of the circumstances of the individual's
departure. One commenter remarked that any DACA recipient who leaves
the United States without an advance parole document should have the
opportunity to explain their circumstances prior to the termination of
their DACA grant. One commenter requested that USCIS communicate
specific criteria under which a person would be allowed to leave the
United States without securing an advance parole document, including
the circumstances that would warrant leaving without advance parole,
how long a DACA recipient would be permitted to remain outside of the
United States, what evidence they might need to prove their request
matches prescribed circumstances, the types of travel documentation
they would need to bring along, and the process for returning.
Response: DHS agrees with commenters that there may be some limited
circumstances where a DACA recipient departs the United States without
first obtaining an advance parole document due to exigent
circumstances--such as departures that are accidental or involuntary,
and in such circumstances the automatic termination of their DACA may
not be warranted. In consideration of the comments received, DHS is
eliminating the provision at 8 CFR 236.23(d)(2)(ii) on automatic
termination of DACA following departure without advance parole and
revising 8 CFR 236.23(d)(2) to provide that USCIS may terminate DACA
after NOIT if a DACA recipient departs the United States without first
obtaining advance parole and subsequently enters without inspection.
Generally, a recent entry without inspection will be a significant
negative factor warranting termination of DACA as a threat to border
security, but where there are exigent circumstances, such as accidental
or involuntary border crossings, DHS may choose to continue exercising
prosecutorial discretion and allow the grant of deferred action to
continue. DACA recipients who depart the United States without first
obtaining advance parole but who are paroled into the United States may
resume their DACA upon expiration of the period of parole. However, DHS
notes that DACA recipients who depart the United States without first
obtaining an advance parole document run a significant risk of being
unable to reenter the United States, and that obtaining an advance
parole document prior to departure is strongly encouraged to reduce the
risk of being unable to return and resume DACA.
Effect of Prior Termination
Comment: Several commenters discussed USCIS' past practice of
automatically denying renewal requests for anyone whose DACA grant had
been terminated previously at any point. The commenters stated that
many DACA grants have been terminated based on arrests or charges that
ultimately did not result in any serious criminal conviction.
Considering these concerns, the commenters suggested that prior
automatic termination of DACA not be used to justify the denial of a
renewal request.
Response: DHS acknowledges commenters' concerns but believes that
the elimination of automatic termination based on NTA issuance in the
final rule will largely alleviate these concerns. Except in limited
circumstances described elsewhere in this preamble and at new 8 CFR
236.23(d)(1), USCIS will generally issue a NOIT before terminating an
individual's DACA. Where USCIS proceeds to termination and the
individual also has a renewal request pending, USCIS believes that
immediate denial of the pending renewal in light of the termination
remains appropriate, as the underlying basis for the termination
remains true such that favorably exercising prosecutorial discretion to
grant a new period of deferred action is not warranted. In cases where
an individual files a new DACA request after their DACA has been
terminated, USCIS does not automatically deny the new request. However,
DHS continues to believe that considering all relevant factors and
evidence is appropriate in determining whether to grant a DACA request,
including the basis for a prior termination, which may be an indication
the individual is no longer a low enforcement priority. Accordingly,
DHS is not making any revisions to the regulations based on these
comments.
g. Restrictions on Use of Information Provided by DACA Requestors
(Including Information Sharing and Privacy Concerns)
Comment: A few commenters expressed support for codifying the
restrictions on use of information in the final rule. One commenter
also stated that they supported the exceptions to the restrictions on
information use as proposed in the rule, including for identifying and
preventing fraudulent claims, for national security purposes, and for
the investigation or prosecution of a criminal offense.
Response: DHS appreciates commenters' support for codifying the

[[Page 53247]]

restrictions on use of information from DACA requestors in this rule.
DHS proposed to codify the longstanding policy that has governed the
use of information provided by DACA requestors to mitigate the
possibility that noncitizens eligible for DACA may be disincentivized
to file a request and become known to the U.S. Government. As described
in the NPRM, under this longstanding policy, information provided by
DACA requestors is collected and considered for the primary purpose of
considering their DACA requests and may not be used for immigration
enforcement-related purposes apart from limited exceptions.\313\ In
furtherance of the Department's dual desire to minimize concerns that
DACA requestors may have in providing their information through the
submission of a DACA request while also retaining exceptions for
limited national security or public safety purposes, DHS is now
codifying this policy at new 8 CFR 236.23(e).
---------------------------------------------------------------------------

\313\ 86 FR 53771.
---------------------------------------------------------------------------

Comment: Expressing concern about information sharing and use among
ICE, CBP, and other Federal, State, or local law enforcement agencies,
a few commenters advocated that DHS further strengthen data privacy
under proposed 8 CFR 236.23(e). A few commenters recommended that DHS
both ensure and demonstrate that requesting DACA would not lead to
immigration enforcement against a requestor. A group of commenters said
that the ``need to know'' policy for sharing information with ICE and
CBP should be clarified, because the list of uses and instances in
which information can be shared is not presented as exhaustive, making
it possible to demonstrate ``need to know'' in other circumstances that
may have a lower evidentiary threshold. Instead, the commenter
suggested that DHS definitively enumerate the exclusion of any specific
uses and instances not listed. A commenter requested that agencies
protect DACA by strengthening data privacy, reasoning that the fear of
immigration enforcement could preclude recipients from enrolling in
healthcare coverage. Another commenter urged DHS to strengthen
protections around the personal identifiable information (PII) of DACA
recipients and expressed concern around ICE handling DACA recipients'
PII. The commenter, along with another commenter, said that DACA
recipients' PII should never be used for enforcement purposes. Another
commenter recommended specific regulatory language for this provision
to ensure the protection of requestors' information from being shared
with immigration enforcement agencies, along with appropriate
administrative penalties for violations.
Response: DHS acknowledges these commenters' recommendations to
further enhance data privacy in this rule, including to enumerate the
exclusion of specific uses not listed. DHS however respectfully
declines to write such granularity into the final rule. As discussed
above, the rule codifies longstanding prohibitions on use of
information for enforcement purposes with specific exceptions. This
longstanding practice has worked to protect against improper uses of
information provided in DACA requests for enforcement purposes. In
January 2022, the U.S. Government Accountability Office (GAO) published
a report on the extent to which USCIS shares information on DACA
requestors and recipients with immigration enforcement agencies and for
what purpose. The GAO report found that, in keeping with the DACA
information-sharing policy, USCIS has shared information with ICE, for
immigration enforcement purposes, on a small number of DACA requestors
and recipients who engaged in activities that disqualified them from
DACA, estimating that from June 2012 to June 2021, of the 106,000 DACA
requests that USCIS denied, USCIS referred fewer than 900 cases (less
than 1 percent) to ICE.\314\ The report did not make any
recommendations for necessary changes. Given this conclusion and DHS's
experience since the inception of DACA, DHS believes that the
longstanding policy governing use of DACA information sufficiently
protects DACA requestors' privacy. Regarding one commenter's request
that there be appropriate administrative penalties for violations of
the information use provision, DHS declines to address penalties in
regulatory text, as DHS components already have robust systems in place
for ensuring that its personnel follow applicable laws, regulations,
policies, and procedures in the performance of their duties, including
but not limited to information sharing and use.
---------------------------------------------------------------------------

\314\ GAO, Report No. GAO-22-104734, Immigration: Information on
Deferred Action for Childhood Arrivals (Jan. 2022), https://www.gao.gov/assets/gao-22-104734.pdf (last visited May 22, 2022).
---------------------------------------------------------------------------

Comment: Some commenters expressed concern with broad exceptions
pertaining to fraud, national, security, and public safety that in
their view undermined the protective provisions under proposed 8 CFR
236.23(e). Citing reports indicating that some gang databases are
unreliable, one commenter recommended that the regulations eliminate
these exceptions. The commenter added that, at the very least, the
regulations should delineate the situations warranting national
security or public safety exceptions that justify initiating removal
proceedings while compelling DHS to establish clear and convincing
evidence to bolster the exception when a requestor, recipient, or
family member or guardian listed in the request is placed in removal
proceedings.
Another commenter recommended that the regulations provide
specific, clear and precise circumstances supporting a national
security or public safety exception warranting initiation of
proceedings. Pursuant to these exceptions, commenters recommended that,
if removal proceedings are initiated against a DACA requestor or
recipient, or against family members or guardians listed in a DACA
request, DHS should assume the burden of proof to support the
exception. Similarly, some commenters recommended that DHS be compelled
to prove to the Immigration Judge by clear and convincing evidence that
the information divulged in the request was not a basis for commencing
removal proceedings. If DHS cannot meet this burden of proof, the
commenters suggested that removal proceedings be terminated.
Response: DHS acknowledges commenters' concerns with the use of
information provided in DACA requests for the purposes of immigration
enforcement. DHS notes that new 8 CFR 236.23(e)(2) prohibits the use of
information pertaining to family members or guardians provided in DACA
requests for the purpose of enforcement proceedings against such family
members or guardians, without exception. DHS refers commenters
requesting additional guidelines on when removal proceedings may be
initiated to the discussion of issuance of an NTA above.
Comment: One commenter stated that data privacy protections were
and continue to be important for building sufficient trust between the
DACA requestor and the government to submit sensitive information but
expressed concern that there are few enforceable controls preventing
ICE from accessing information on DACA requestors. The group
recommended that USCIS prevent both direct and indirect disclosure of
information in DACA requests to ICE or CBP. To the extent mutually
accessible data systems must be used between agencies, another
commenter recommended that USCIS be allowed to track which agencies
view that

[[Page 53248]]

information and to monitor and enforce limitations on the rationale for
access or acceptable uses of information.
Some commenters recommended that USCIS modify the information use
provisions to further restrict information use and sharing. These
commenters recommended the provisions forbid the disclosure,
circulation, or use of all past or future information--including via
electronic systems--for reasons beyond implementing DACA. In the event
that another agency obtained any information submitted during the DACA
process, or if the information was used for any reason beyond carrying
out the DACA policy, the commenters recommended that DHS notify the
DACA requestor.
Several commenters also recommended that DHS incorporate guidelines
on information storage and electronic access, including strict
protocols on accessing information stored or obtained electronically,
as well as transparency and oversight measures. One commenter urged DHS
to make multiple specific improvements to information protection and
sharing, including by establishing stronger safeguards for data from
noncitizens who were denied DACA, such as not entering biographical
information, biometric information, information about the requestor's
family, or immigration status information for denied requestors into
the A-file. The commenter said these protections are needed because
these individuals are vulnerable to identification and removal by
enforcement officers, even if their case is not affirmatively referred
to ICE. This risk could deter individuals from requesting DACA. This
commenter also suggested reconsidering the Form I-812D disclaimer and
limiting third-party data sharing, because the combined risk and
complexity it poses could potentially deter eligible DACA recipients
and their family who depend on deferred action.
A commenter requested a firm and transparent commitment from all
branches of the U.S. Government to refrain from collecting or sharing
information on DACA requestors with ICE, including geolocation data
from private apps requestors use. Another commenter urged DHS to limit
its collection of biometric and biographical data to information that
is absolutely necessary to verify eligibility for temporary forbearance
under DACA. This commenter also requested the opportunity for public
comment on any future proposals to expand biometric data collection or
use.
Response: DHS appreciates commenters' suggestions for building
trust among the communities that DACA is intended to benefit. DHS notes
that since the inception of the policy, the DACA requestor population
has stepped forward to request DACA under the same guidelines on
information use to be codified in this rule. DHS acknowledges the
suggestion for monitoring access to data systems accessible by multiple
agencies but believes that such modifications to DHS data systems are
unwarranted at this time. As support for the adequacy of the current
policies DHS refers to the GAO report on DACA information sharing
referenced above, which documents the small number of DACA requests
that have been referred to ICE for further investigation or issuance of
an NTA and makes no recommendations for changes to DHS policy or
practice. DHS therefore declines to make any changes to the rule in
response to these comments.
Comment: Commenters wrote that requestors should be permitted to
redact false Social Security numbers from documents used to demonstrate
continuous residence, and privacy guidelines should state that this
information will not be shared with immigration or law enforcement
agencies or used against the requestor in any other manner.
Response: DHS recognizes that individual requestors will submit the
evidence that they believe is appropriate in support of the threshold
guidelines. However, DHS will afford the appropriate weight to the
evidence based upon the information included. As noted elsewhere in
this preamble, under the preponderance of the evidence standard, the
sufficiency of each piece of evidence is 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.
In response to commenter's request to modify the information use
provision, as discussed above, the rule codifies longstanding
prohibitions on use of information with specific exceptions. This
longstanding practice has worked to protect against improper uses of
information provided in DACA requests for enforcement purposes. DHS
therefore respectfully declines to write such granularity into the
final rule.
6. Severability (Sec. 236.24)
Comment: A number of commenters addressed the severability
provision of the proposed rule. One commenter expressed support for the
severability provision of the proposed rule because it would mitigate
risks associated with the fact that the DACA policy faces continued
litigation risk. Another commenter supported making DACA benefits
severable, reasoning that this aspect of the rule aligns with
longstanding principles of contract law.
A commenter said that inserting a severability provision in the
regulation is not enough to protect and insulate EADs from litigation
and preserve access to work authorization. Another commenter echoed
this while also expressing concern that future administrative or legal
actions could create barriers to DACA recipients' efforts to secure
work authorization in a timely manner. Another group of commenters
argued against separating deferred action from work authorization,
including via the severability provision, arguing that a severability
provision should not be necessary because granting employment benefits
to DACA recipients does not violate the INA.
Response: A severability clause is a standard legal provision. It
indicates DHS's intent that if a court finds that a specific provision
of a rule is unlawful, the court should allow the remainder of the rule
to survive. Those provisions that are unaffected by a legal ruling can
be implemented by an agency without requiring a new round of rulemaking
simply to promulgate provisions that are not subject to a court ruling.
DHS understands the concern that if one portion of the rule is
severed from the others by a court it could lead to undesirable
consequences for DACA recipients. However, although DHS believes that
all portions of this rule are well within its legal authority, if a
court finds that portions of the rule are unlawful it is preferable to
sever and strike only those portions, rather than having the rule
stricken in its entirety. Although the important goals and policies
reflected here are best served if each of the portions of the rule
remains intact, DHS recognizes that each portion of the rule will
remain workable without the others. Therefore, even if portions of the
rule are struck down DHS will implement the provisions of this rule
that survive judicial review. For example, DHS will continue to
implement 8 CFR 236.21(c)(1) (relating to forbearance) and 8 CFR
236.21(c)(2) (relating to employment authorization) even if DHS is
prohibited from deeming DACA recipients ``lawfully present'' for
purposes of receiving certain Social Security benefits (8 CFR
236.21(c)(3)) or the unlawful presence provisions at INA sec.
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (8 CFR 236.21(c)(4)). Similarly,
although there are significant benefits to providing work authorization
alongside forbearance, forbearance remains

[[Page 53249]]

workable and desirable without work authorization, and DHS would have
adopted the forbearance portion of the policy even if it did not
believe that the work authorization portion of the rule were legally
authorized. There are further discussions of the comments received on
the separation of deferred action and work authorization elsewhere in
this preamble.
7. Advance Parole and Adjustment of Status
Strengthening and Expanding the Availability of Advance Parole
Comment: Many commenters expressed support for the proposal's
clarification that advance parole will continue to be an option for
DACA recipients. Several commenters remarked that DACA recipients
should have the right to travel internationally and requested that DHS
remove the requirements for advance parole or expand the circumstances
that make DACA recipients eligible for advance parole. Other commenters
stated that including advance parole for DACA recipients in regulation
will allow them to study and conduct research abroad and would be
critical for opening opportunities to develop international skills and
gain experience via study abroad programs. Commenters described DACA
recipients' significant contributions to campus life, corporate
success, and the overall economy, and said that these contributions
have engendered significant reliance interests, including recruiting
and investments by educational institutions and employers.
Many commenters requested expanding advance parole beyond
employment, educational, or humanitarian grounds. Commenters noted that
current categories are often not applicable for DACA recipients, or
that they may be difficult to predict or document months in advance.
Some commenters reasoned that delays or denial of parole based on
narrow restrictions have adverse impacts on students' educational
experiences and outcomes and stated that DACA recipients' access to
advance parole improves their educational outcomes and enhances their
contributions on campus. Several commenters stated that there was no
statutory, regulatory, or practical reason for the narrow grounds for
advance parole available to DACA recipients. One commenter requested
that USCIS exercise its discretion to issue advance parole to DACA
recipients for the broadest range of travel purposes when justified by
urgent humanitarian need or significant public benefit, arguing that
USCIS is clearly authorized to exercise such discretion. The commenter
reported inconsistent application of the current standards by
adjudicators and suggested that applying a broader interpretation and
maximum discretion would be more efficient, allowing USCIS to timely
adjudicate applications for advance parole.
Many commenters suggested DHS expand the grounds for advance parole
to include any reason for travel. One commenter requested that advance
parole apply to DACA recipients in the same manner as it is applied for
TPS recipients (requiring less documentation of specific reasons for
travel). Other commenters agreed and recommended that DHS harmonize
advance parole requirements for DACA with other forms of humanitarian
relief (such as TPS) that require less documentary evidence and allow
travel for any reason. Other commenters recommended travel standards be
revised to include cultural and familial reasons. One commenter cited
research demonstrating that a high percentage (35.4 percent) of DACA
students interviewed meet the clinical cutoff for anxiety, and
recommended that DHS expand the parameters for advance parole to
provide a greater opportunity for DACA recipients to travel abroad and
visit family and loved ones over holiday breaks to support mental
health.
Response: DHS acknowledges the comments in support of advance
parole for DACA recipients. DHS agrees with the commenters that
allowing DACA recipients to apply for advance parole is consistent with
the INA. The INA authorizes DHS to grant parole on a case-by-case
basis, for urgent humanitarian reasons or significant public benefit,
to individuals, at the discretion of DHS. 8 U.S.C. 1182(d)(5). Advance
parole allows a noncitizen to leave the United States and then be
paroled back in, consistent with INA sec. 212(d)(5), 8 U.S.C.
1182(d)(5) and 8 CFR 212.5(f). The statute provides that the Secretary
may parole ``any alien applying for admission to the United States''
for the purposes in the statute. 8 U.S.C. 1182(d)(5) (emphasis added).
Because DACA recipients who depart the United States and seek to
reenter are applicants for admission, they are statutorily eligible to
apply for parole.\315\ And because parole is not an ``admission,'' DACA
recipients remain eligible for parole even if they are ``inadmissible''
under 8 U.S.C. 1182.\316\
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\315\ Although some DACA recipients were admitted as
nonimmigrants or under other authorization, they overstayed their
authorization period in the United States. When they depart and seek
to reenter, they would become ``applicants for admission'' and may
be paroled at that time in DHS's discretion.
\316\ See 8 U.S.C. 1101(a)(13)(B) (``An alien who is paroled . .
. shall not be considered to have been admitted.'').
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Consistent with these comments in support of advance parole, DHS
reiterates that under the rule, it would continue its adherence to that
standard. In response to the commenters who suggest broadening the
standard for advance parole to include all reasons for travel, or all
reasons for travel if a significant public benefit or urgent
humanitarian reason is articulated, DHS has considered this request,
but declines to make changes, as statutory language in INA sec.
212(d)(5) that limits DHS's exercise of parole to urgent humanitarian
or significant public benefit reasons requires case by case
consideration of the reason for travel. While DHS acknowledges
commenters' requests to specifically broaden DACA recipients' access to
advance parole beyond travel for humanitarian, employment, and
educational purposes, DHS declines to set such standards in this rule.
DHS has generally found that permitting DACA recipients to travel in
certain circumstances for humanitarian, educational, or employment
related reasons provides a significant public benefit or is justified
as an urgent humanitarian reason for travel. DHS additionally notes
that specific instructions for applying for an advance parole document
under several categories are provided in the Form I-131, Application
for Travel Document itself, and declines to write them into this rule
for only DACA requestors.\317\
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\317\ Form instructions are incorporated into regulations by
operation of 8 CFR 103.2(a)(1).
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With respect to the commenters who requested that advance parole
for DACA recipients be harmonized with the standards for granting
travel authorization to TPS beneficiaries, DHS first notes that TPS,
unlike DACA, is a lawful immigration status expressly prescribed by
statute. Indeed, Congress expressly contemplated that TPS beneficiaries
be able to travel and return with advance authorization.\318\ In
addition, the law requires that a TPS beneficiary who travels abroad
with such prior authorization, ``shall be inspected and admitted in the
same immigration status the alien had at the time of departure'' unless
certain narrow exceptions related to mandatory ineligibility for TPS
apply.\319\ DACA, on

[[Page 53250]]

the other hand, is not a statutorily-provided immigration status like
TPS, but merely forbearance from removing an individual from the United
States. Accordingly, the Department has a reasonable basis for
prescribing different criteria for TPS beneficiaries seeking permission
travel and for DACA recipients seeking advance parole.
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\318\ See INA sec. 244(f)(3), 8 U.S.C. 1254a(f)(3).
\319\ See 8 U.S.C. 1254a note (``Aliens Authorized to Travel
Abroad Temporarily'') (This note derives from section 304(c) of the
Miscellaneous and Technical Immigration and Naturalization
Amendments Act of 1991, Public Law 102-232, 105 Stat. 1733, 1749
(Dec. 12, 1991) (as amended). This provision requires admission in
TPS of a TPS beneficiary who travels abroad with prior
authorization, unless the individual is inadmissible for reasons
that are also certain mandatory criminal or security ineligibility
bars to TPS in INA sec. 244(c)(2)(A)(iii), 8 U.S.C.
1254a(c)(2)(A)(iii)). See generally Duarte v. Mayorkas, 27 F.4th
1044 (5th Cir. 2022). Accordingly, DHS is no longer using the
advance parole mechanism to authorize TPS travel. See Rescission of
Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of
travel authorized by TPS beneficiaries, USCIS PM-602-0188 (Jul. 1,
2022).
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Advance Parole and Relation to INA Sec. 245(a)
Comment: Commenters stated that expanding the categories for
advance parole would eliminate barriers to adjustment of status and
would streamline the adjudication workload. Several other commenters
expressed support for the proposed rule's recognition that DACA
recipients who travel abroad and return to the United States can be
paroled back into the country and will satisfy the ``inspected and
admitted or paroled'' requirement for adjustment of status under INA
sec. 245(a), 8 U.S.C. 1255(a). Expressing support for expanding the
circumstances for requesting advance parole, a commenter said that
advance parole has allowed many DACA recipients to travel
internationally and satisfies the ``inspected and admitted''
requirement for adjustment of status. Multiple commenters expressed
concern about the uncertainty of being allowed to reenter when DACA
recipients return to a port of entry, arguing that this uncertainty
prevents many DACA recipients from applying for advance parole. As a
solution, the commenters recommended establishing a parole-in-place
program, similar to the program available for U.S. military families,
for eligible DACA recipients to adjust their status to lawful permanent
resident to reduce uncertainty and promote administrative efficiency.
Another commenter remarked that undocumented immigrants should have a
pathway to achieve legal status without risking prohibitions or
restrictions on international travel and reentry into the United
States, suggesting that a Reentry Permit should be made available to
DACA recipients because this population should be permitted to travel
and reenter the country legally without fear of rejection or other
consequences.
Conversely, one commenter referred to the court's discussion in
Texas stating that allowing DACA recipients to receive advance parole
contradicts Congress' intention to restrict adjustment of status
eligibility for those who have not been lawfully admitted or paroled
into the United States. The commenter disagreed with DHS's
rationalization that DACA recipients are subject to the same urgent
humanitarian or significant public benefit analysis the statute
requires, and therefore, providing DACA recipients the ability to seek
advance parole is in line with the authorization provided by Congress
in the statute. The commenter argued that applying the parole standard
does not mean that ``Congress intended to create a class-based
exception to the adjustment of status restriction or the bars to
reentry.''
Response: Advance parole is rooted in INA sec. 212(d)(5), 8 U.S.C.
1182(d)(5), which authorizes parole on a case-by-case basis for urgent
humanitarian or significant public benefit reasons. The INA contains
several relevant statutory provisions and requirements for eligibility
for adjustment of status to that of a lawful permanent resident,
including those laid out at INA sec. 245, 8 U.S.C. 1255, which
requires, among other things, that applicants for adjustment of status
be eligible for an immigrant visa and be admissible under INA sec. 212,
8 U.S.C. 1182, and that applicants were ``inspected and admitted or
paroled'' into the United States. Although advance parole granted to
DACA recipients may aid certain recipients later seeking adjustment of
status in meeting the requirement in 8 U.S.C. 1255(a) to have been
``inspected and admitted, or paroled,'' that effect of parole was
determined by Congress. Parole may have a similar effect with respect
to the restriction in 8 U.S.C. 1182(a)(6)(A)(i), which applies only if
an individual is ``present in the United States without being admitted
or paroled,'' but that too was determined by Congress and is likewise
independent of DACA itself.\320\ Moreover, even if parole removes a
particular bar to subsequent adjustment of status, parole itself does
not entitle any individual to adjustment of status; each applicant for
adjustment of status must meet all other statutory requirements
relevant to their particular basis for adjusting status to that of a
lawful permanent resident and be granted adjustment in an exercise of
discretion, and those requirements are not affected by this rule. So
long as DHS acts within the limits of its parole authority in 8 U.S.C.
1182(d)(5), there is no conflict with Congress' expressed intent for
eligibility for adjustment of status. As discussed above, DHS believes
the DACA-based advance parole guidance does just that. DHS also
disagrees with the characterization of this process as ``class-based,''
as all advance parole decisions are made on a case-by-case,
individualized basis. DHS therefore declines to make any changes in
response to the comments either requesting expansion or limitations to
Congress' requirements for adjustment of status, which is beyond the
scope of rulemaking.
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\320\ In response to the Intervenors' discovery request in
Texas, USCIS estimated, with a +/-1.5% margin of error, that between
13,908 and 14,358 requestors who were approved for DACA between June
2012 and June 2018 and who had subsequently adjusted to LPR status
as an immediate relative (i.e., qualified spouse, child, or parent
of a United States citizen) could not have met the requirement in 8
U.S.C. 1255(a) to have been ``inspected and admitted, or paroled''
but for their entries to the United States on DACA-based advance
parole granted prior to the filing of their Forms I-485 for
adjustment of status. See Fed. Defs.' Revised Resp. to Def.-
Intervenors' Revised Disc. Req., dated November 8, 2019, provided in
Texas. Reaching this estimate involved several months of intensive
statistical research, data sampling, manual file reviews, and
subsequent data analysis. DHS has not had another occasion to
undertake such a labor-intensive effort to update this estimate,
which was based on the sampling of cases from the first 6 years of
DACA.
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Reducing Financial and Administrative Burdens for DACA Recipients
Seeking Advance Parole
Comment: A few commenters recommended that DHS design a
streamlined, less intricate, or less costly application process for
advance parole. Some commenters recommended incorporating advance
parole with a reduced or eliminated fee into the final rule. Another
commenter requested that USCIS expand DACA provisions to allow for a
right of reentry and stated that requiring DACA recipients to file form
I-131 (at a significant cost of $575) creates delays and increased
paperwork burdens. Other commenters recommended that DHS allow
applications for advance parole to occur at the same time as both
initial DACA requests, and requests for DACA renewal. One commenter
suggested that the final rule allow for departures from the United
States for 6 months or 1 year instead of the discrete windows allowed
under current policy. The commenter further recommended USCIS develop
clear procedures and criteria for adjudication of advance parole
applications to allow for more efficient

[[Page 53251]]

and effective processing of such applications.
Another commenter stated that long processing times and the 2-year
grant of DACA present challenges for DACA recipients to travel freely
internationally. The commenter noted that USCIS policies already
provide for a combined EAD and advance parole document for applicants
for adjustment of status and recommended expanding this option to allow
DACA recipients to receive joint EAD and advance parole cards.
Similarly, a commenter suggested creating an EAD travel card for work,
educational, or humanitarian purposes.
Response: DHS recognizes the financial costs and time required for
adjudication of applications for advance parole for DACA recipients.
The advance parole adjudication process, however, is the same for DACA
recipients as for all noncitizens filing Form I-131 Application for
Travel Document, including the filing costs, which are set by the fee
rule, and processing times for an advance parole document. While
acknowledging the financial costs and time required for processing
advance parole requests, DHS notes that other noncitizens face similar
processing times and fee costs for travel documentation and declines to
provide differentiated treatment to DACA recipients. In response to
concerns regarding the timing of advance parole, DHS does offer an
expedited adjudication for exceptionally urgent reasons, and does offer
longer time periods for advance parole where warranted. Finally, with
regard to requests for a combination employment authorization document
and advance parole card as is available for adjustment of status
applicants, DHS has considered the various concerns of commenters, but
notes that DACA recipients granted a temporary reprieve from removal
action and applicants for adjustment of status awaiting visa
availability are differently situated, and has determined not to create
new forms, identity documents, and additional operational processes for
advance parole for DACA recipients.
Easing or Eliminating Need for Advance Parole
Comment: A commenter expressed concern about what they perceived as
DACA recipients' inability to travel internationally, writing that a
continued restriction on international travel could hinder their
professional development and prevent them from traveling abroad to
visit relatives. Several commenters likewise requested that DHS
consider proposals to eliminate advance parole requirements or travel
restrictions more generally. One commenter stated that advance parole
for DACA recipients was unnecessarily restrictive and costly, and
recommended that DHS consider ways to facilitate travel for DACA
recipients by loosening advance parole requirements, including
permitting DACA recipients to travel without advance parole in
emergency situations. One commenter expressed general support for
allowing DACA recipients to travel internationally and expressed a
willingness to pay for an upgraded DACA that would allow for
international travel without needing to establish advance parole.
Response: DHS acknowledges the commenter's concern about DACA
recipients' ability to engage in international travel. DHS notes the
existing DHS policy of granting advance parole to DACA recipients in
its discretion on employment, educational or humanitarian grounds, if
the applicant satisfies certain criteria, allowing recipients to travel
internationally in some circumstances.
DHS also acknowledges commenters' requests to ease or eliminate
advance parole requirements for DACA recipients, as well as the
uncertainty associated with returning to the United States. DHS notes
that it lacks the authority to do so through rulemaking. DHS does not
have the legal authority to eliminate the statutory requirements for
parole under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5), or broaden the
requirement beyond the statutory standard of urgent humanitarian
reasons or significant public benefit. For these reasons, and those
discussed above, DHS is not altering the advance parole requirement in
the rule.

D. Other Issues Relating to the Rule

1. Public/Stakeholder Engagement (e.g., Requests To Extend the Comment
Period)
Public Engagement
Comment: One commenter stated that DHS should communicate with
immigrant communities and organizations about the rule and should read
every comment submitted. Other commenters commented that DHS should
continue to collaborate with and provide information to farmworker
communities about DACA. The commenters suggested that DHS continue to
share information in accessible languages, including Indigenous
languages, through a variety of media, and engage in outreach sessions
with trusted voices in the farmworker community.
Response: DHS appreciates these commenters' suggestions. DHS has
reviewed and carefully considered all comments that fall within the
scope of this rulemaking. DHS communicates with the DACA requestor
population through the online DACA FAQs, social media, and other
stakeholder engagements, which it intends to continue upon publication
of this rule.
2. Administrative Procedure Act and Rulemaking Requirements
Compliance With the Administrative Procedure Act
Comment: A few commenters wrote that DHS should establish DACA
through notice-and-comment rulemaking following the requirements of the
Administrative Procedure Act (APA). Others voiced opinions on the
sufficiency with which the rule complies with the APA. One commenter
remarked that the proposed rule was so long and complex that it may
subvert the APA's public comment process.
Response: In this rule, DHS is establishing DACA through notice-
and-comment rulemaking in accordance with the APA. During this process
and as DHS explains throughout this rule, DHS has complied with the
APA, in particular by welcoming comments on and carefully considering
all comments received during the comment period. DHS understands that
notice-and-comment rulemaking and the associated documents can be long
and complex, but this rulemaking follows the appropriate process, and
the rule is at an appropriate level of detail.
Negotiated Rulemaking
Comment: Multiple commenters requested that DHS require negotiated
rulemaking for future changes made to the final rule since negotiated
rulemaking involves enhanced stakeholder input and would be in the
public's best interest.
Response: DHS appreciates that negotiated rulemaking can provide
additional collaboration with affected parties outside of notice-and-
comment rulemaking. All comments received during the comment period
have been considered. However, DHS declines to limit the available
means by which future changes to DACA regulations or policies can be
made by requiring negotiated rulemaking, which is not a process
typically used by DHS.
Future Changes Timeline
Comment: Multiple commenters suggested that any future changes to
the final rule should not take effect for 240 days because
modifications to DACA could result in significant impacts to those
involved.

[[Page 53252]]

Response: DHS understands that future changes to these regulations
could have significant effects on DACA recipients and in some instances
longer lead times to implement changes might be desirable. Recognizing
this, DHS will take such effects into consideration when considering
future changes to the regulations and will comply with the APA and
other legal requirements when doing so.
3. Processing Time Outlook (Including Comments on Backlogs)
Comment: Many commenters expressed general concern about long
processing times and urged DHS to improve its infrastructure to shorten
timeframes or otherwise address backlogs that slow down the immigration
process overall to give individuals the chance to succeed academically
and economically and preserve families. Citing research and government
data, commenters highlighted wait times for DACA requests lasting more
than 11 months, as well as an 85-percent increase in the USCIS backlog
between 2015 and 2020. A commenter noted that that the COVID-19
pandemic has exacerbated processing delays at a time when many DACA
recipients are on the front lines as essential workers. Commenters
expressed concern that long wait times threaten DACA recipients' safety
and jobs, and cause stress and uncertainty, and that processing delays
of renewal requests cause lapses in recipients' work authorization.
Commenters suggested additional ways for USCIS to address
processing times, including: resuming expedited request criteria for
DACA recipients to reduce the backlog of requests; prioritizing
processing of initial and renewal DACA requests; completing processing
within 60 days and prioritizing renewal requests nearing their validity
expiration; addressing staffing shortages that have contributed to the
backlog; and DHS leveraging congressional appropriations to improve
DACA request processing.
Response: DHS appreciates commenters' concerns with processing
times for DACA-related requests and suggestions for improving
efficiency in considering these requests. DHS recognizes the
significant impact that backlogs and delays have on requestors, and
acknowledges that policy changes, court rulings, and resource
constraints in recent years contributed to increased backlogs and
processing delays. As discussed in this rule, USCIS has taken important
steps to ensure properly filed requests are swiftly adjudicated. These
steps are reflected in significantly improved processing times for
renewal requests. As of May 31, 2022, the FY 2022 median processing
time for a DACA-related Form I-765 is 0.5 months.\321\ Further, USCIS
continues to examine strategies for ensuring efficient processing of
DACA-related requests.\322\ Indeed, this rule serves to codify
threshold criteria, clarify processes, and establish a filing and fee
structure intended to fortify DACA and support efficient processing of
requests. DHS takes under advisement commenters' suggestions, but
believes that the operational details of resource allocation and
prioritization of adjudications are best addressed through
subregulatory guidance, which provides greater flexibility to address
fluctuating workloads.
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\321\ USCIS, Historical National Median Processing Time (in
Months) for All USCIS Offices for Select Forms By Fiscal Year,
Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,
2022).
\322\ See, e.g., USCIS, USCIS Announces New Actions to Reduce
Backlogs, Expand Premium Processing, and Provide Relief to Work
Permit Holders (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work. Also, since April
2022, DACA recipients have had the option to submit their renewal
request and associated work authorization request online. See USCIS,
USCIS Announces Online Filing for DACA Renewal Forms (Apr. 12,
2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-online-filing-for-daca-renewal-forms.
---------------------------------------------------------------------------

4. DACA FAQs
Comment: A commenter stated that the DACA FAQs are a large source
of policy clarification that should be examined carefully, recommending
that the final rule clarify that relevant policy and operational
directives, or other guidance, will be incorporated or updated as
appropriate, including anything related to pandemic relief assistance
for DACA recipients. The commenter produced a non-exhaustive list of
DACA FAQs that should be preserved, including those pertaining to
request processing, acceptable documentary evidence, travel, and fee
exemptions, as well as those that proscribe information sharing with
immigration enforcement authorities.
Response: DHS appreciates the commenter's suggestions and has
incorporated into the preamble and regulatory text some of the guidance
from the DACA FAQs, including guidance on the definition of ``currently
enrolled in school'' and acceptable documentary evidence in support of
the threshold criteria. DHS takes under advisement the commenter's
suggestions regarding any future revisions of the DACA FAQs.
5. Other Comments on Issues Relating to the Rule
Other Comments
Comment: A commenter requested that DHS remove what it described as
dehumanizing language from the regulation, including the use of the
word ``alien.'' The commenter said that the use of this language is at
odds with the Biden administration's own proposed immigration
legislation and direction from the Department's leaders, citing
relevant memoranda. Another commenter objected to the use of the term
noncitizen and encouraged DHS to use the term ``alien'' instead.
Response: While the term ``alien'' is a legal term of art defined
in the INA for immigration purposes, DHS recognizes that the term has
been ascribed with a negative, dehumanizing connotation, and
alternative terms, such as ``noncitizen,'' that reflect our commitment
to treat each person the Department encounters with respect and
recognition of that individual's humanity and dignity are preferred.
DHS will use the term ``alien'' when necessary in the regulatory text
as the term of art that is used in the statute, but where possible DHS
will use the terms ``requestor'' or ``recipient'' to refer to those who
are seeking or who have received deferred action under the DACA
policy.\323\ This preamble uses the term noncitizen for that same
reason.
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\323\ See, e.g., new 8 CFR 236.21(c)(2) and 236.22(a)(3).
---------------------------------------------------------------------------

Comment: A commenter stated that Asian and Pacific Islander
communities have historically low rates of DACA requests and attributed
this to cultural stigma, language barriers, high application fees,
difficulties collecting required documents, and a lack of awareness.
The commenter requested that USCIS work to remove these barriers to
accessing the DACA policy.
Response: DHS appreciates commenter's request and takes it under
advisement as it considers outreach to Asian and Pacific Islander
communities.
Comment: A commenter stated that DACA provides essential
protections and opportunities for survivors of gender-based violence.
However, the commenter requested that DHS do more to protect this
vulnerable population and consider establishing an ``amnesty'' program
for DACA requestors who are survivors of sexual misconduct, harassment,
and abuse that would provide automatic protection against deportation
resulting from their report of such victimization.
Response: DHS appreciates the commenter's support of the DACA

[[Page 53253]]

policy and acknowledgement that it provides important protections to
eligible survivors of gender-based violence. However, the commenter's
request to create a program that would provide automatic protection
against removal for DACA requestors who report their victimization goes
beyond the scope of this rulemaking.
Comment: One commenter said that any modifications or updates to
DACA should allow spouses of U.S. citizens to obtain legal status by
paroling in place.
Response: DHS acknowledges the commenter's feedback but notes that
this suggestion is beyond the scope of this rulemaking.

E. Statutory and Regulatory Requirements

1. Impacts and Benefits (E.O 12866 and E.O. 13563)
a. Methodology and Adequacy of Cost-Benefit Analysis
(1) Methodology of the RIA
Comment: One commenter approved of DHS's consideration of various
costs and benefits such as application costs and earned income of DACA
recipients. The commenter also recommended that DHS supplement the RIA
by more thoroughly addressing several arguments that DHS previously
offered against the DACA policy in its rescission memoranda.
Response: DHS considered the input and suggestions received
throughout the public comments and adjusted the RIA where it deemed
applicable and feasible. The adjustments made are described in
applicable comment responses and corresponding RIA sections.
Additionally, we refer readers to Table 3 in the RIA of this final
rule. The table provides details of the changes and adjustments made in
the estimates of the analysis from the NPRM to the final rule. DHS also
addresses the Duke and Nielsen recission memoranda in detail in Section
II.B.3.
(2) Comments on Population Estimates and Assumptions
Comment: A commenter stated that the proposed rule should have also
considered half a million existing DACA recipients, not just new DACA
recipients in the labor market analysis section, which, the commenter
stated, is not a small number.
Response: DHS appreciates the comment regarding the population
estimates in labor market analysis section. As presented in the RIA,
DHS analyzed possible labor market impacts relative to two baselines, a
No Action baseline where only future DACA recipients where considered,
and a Pre-Guidance baseline where existing and future DACA recipients
were considered, consistent with the commenter's suggestion. The RIA
details this methodology and analysis.
Comment: A group of commenters stated that DHS assumptions about
the DACA population are unsound. The commenter stated that new intakes
under the DACA policy, ``declined consistently between FY 2014 and FY
2016,'' even before the announced decision to rescind DACA further
curtailed ``new intakes in FY 2018-2020.'' The commenter further
reasoned that conditioning DACA eligibility on having ``continuously
resided'' in the United States since June 2007 and having been
``physically present'' in the United States since June 2012 would
reduce DACA's new intakes more quickly than what DHS population
estimates reflect.
Response: DHS appreciates the comment regarding the assumptions
about the projections of an active DACA population presented in the
RIA. The purpose of presenting active DACA population projections is
not to project the trend of the ``stable'' period of FY 2015-FY 2017
identified in the RIA. DHS identified the ``stable'' period of FY 2015-
FY 2017 as a period that was characterized by relatively consistent
operations of the DACA policy in which there were no requestor surges
nor stoppages in the processing due to policy changes or litigation.
Although the rate of increase of the active DACA population was slowing
during the ``stable'' period as some recipients ceased renewing their
DACA requests, and the number of Initial Approved Requests was
declining, DHS does not assume the same trend in the active DACA
projections, as it is uncertain what trends will emerge in the future.
Instead, DHS uses the average population during the ``stable'' period
as the estimated active DACA population. By using the average
population during the ``stable'' period, DHS is better able to account
for policy uncertainties and the policy's population, and the gap
between the views supporting the existence of large numbers of
potentially eligible requestors and the views supporting the opposite.
Further, although the threshold criteria set forth a minimum age at the
time of request, which could reduce the number of future eligible
requestors, DACA intake data for FY 2021 indicate the possibility still
exists that there are many adults who may meet threshold criteria for
consideration under the policy and could submit a request.\324\ For
example, under threshold criteria in place since 2012 and as codified
by this rule, a 15-year-old in 2025 would not meet threshold criteria,
but an 18-year-old in 2025 would. There could be many or few 18-year-
old potential requestors. Among those potential requestors, many or
only a few might choose to request DACA, decisions that could be
influenced by personal circumstances, political environments, and other
factors.
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\324\ Source: USCIS, Office of Performance and Quality, NPD, C3,
ELIS, queried Aug. 2021, TRK#8129.
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Comment: A commenter stated that DHS projections in the NPRM at
Table 8, 86 FR 53786, overstate the growth in the DACA population and
inadequately account for the aging of the DACA population due to the
threshold criteria. The commenter suggested that even if the proposal
to unbundle the Forms I-821D and I-765 result in a larger number of
initial applications, the number of initial applications resulting from
this change will be too small to justify USCIS' estimates of the active
DACA population. The commenter suggested that DHS should adopt more
empirically responsible and internally consistent DACA modeling
estimates. However, the commenter did not propose any specific
methodological suggestions or guidelines for USCIS to implement, other
than to take greater account of the role of age.
Response: DHS appreciates the commenter drawing attention to the
NPRM's projections of an active DACA population, including the
estimated labor force participation rate for the DACA population
discussed in the NPRM RIA. As described in the NPRM RIA, the 30-percent
threshold is based on data from the Bureau of Labor Statistics (BLS) on
the labor force participation rates by age cohort. DHS acknowledges
that such participation may fluctuate over time. As it relates to the
population estimates more generally, as discussed in the NPRM RIA and
in a previous comment response, the phenomenon of ``aging in'' to
eligibility under the DACA threshold criteria does not solely control
DHS's projections of the active DACA population, or prevent growth in
the active DACA population in line with DHS projections.
DHS acknowledges that the projections may be an overestimate, as
discussed above. DHS estimated this population based on available
internal and external data, and carefully considered a wide variety of
economic, policy, and legal expertise and relevant

[[Page 53254]]

literature. DHS acknowledges the possibility that the average age of
the projected active DACA population could increase and, as a result, a
higher proportion of active DACA individuals might choose to
participate in the labor market relative to the NPRM. Therefore, in the
final rule RIA, DHS is adjusting upwards the estimated percentage of
DACA recipients who might choose to participate in the labor market
from the estimated rate of 70 percent in the NPRM to the estimated rate
of 78 percent in the final rule. The assumptions and methodology of
this adjustment are discussed in greater detail in Section III.A.4.a.6.
Comment: A commenter expressed concern with the Department's
methodology, noting it was sensitive to specific modeling assumptions
that could cause an under- or overestimation of the residual
subpopulation. They also noted that the Department does not have a
tested methodology to predict how many potential DACA-eligible
individuals will request DACA, and that to predict future DACA
requests, DHS used historical request data that USCIS collected from
individuals over the last several years, rather than estimating the
overall DACA eligible population and then further estimating the share
of the population eligible to request DACA in the future. However,
despite these concerns, the commenter generally approved of the
Department's population calculating methodology, noting that, all
methodologies face challenges and that they see no reason to believe
that another methodology would yield a more accurate estimate.
Response: DHS appreciates the commenter's support of DHS's
analytical efforts as well as the feedback on the projections of the
active DACA population. DHS has determined that estimating the
population of those who are potentially eligible for DACA is not
necessary to estimate the number of individuals who might choose to
request DACA in the future. While estimating the total DACA-eligible
population would offer an upper bound of potential requestors, such an
estimate would not offer a precise number of those who will submit
requests that are approved. Thus, it would likely be overinclusive
because DHS lacks accurate data about several of the DACA criteria in
the potentially eligible population, such as educational attainment and
criminal histories, as well as the discretionary analysis performed in
each request. Nevertheless, given external estimates of potential DACA-
eligible populations, DHS believes that the projections offered in the
NPRM RIA and this rule are within the possible upper-bound estimates
given the historical data on the policy, the uncertainty surrounding
the DACA policy and its population, public comments that support larger
or smaller population estimates, existing literature, and available
expertise on the policy.
Comment: A commenter stated that given the bias of all available
data, DHS should be cautious in considering the Migration Policy
Institute's data suggesting that 700,000 DACA-eligible individuals have
not submitted initial requests. The commenter expressed concern
regarding DHS's statement that DACA requestors will stop ``aging in''
to the policy in June 2022, but that this should not impact the number
of requests, based on available data. The commenter said that past
administration attempts to rescind DACA and the recent Texas court case
that bars new requestors have skewed the available data.
Response: DHS appreciates the comment concerning the assumptions in
developing projections of the DACA population in this rule. To estimate
the relevant populations for this rule, DHS considered the DACA-
eligible population estimates from the Migration Policy Institute. As
discussed in elsewhere in this section and in Section III.A.4.a.1, DHS
agrees with the commenter that the ``age in'' restriction of the policy
will not necessarily impact the number of potential DACA requestors, at
least in the short run, and DHS did not base the population estimates
on this restriction. Additionally, recent attempts at rescinding DACA
and the district court injunction prohibiting DHS from administering
DACA for new requestors were not factors that impacted DHS's population
projections. The two baseline assumptions and the methodology for
population projections are detailed in Sections III.A.2 and III.A.4,
and III.A.4.a.1, respectively.
(3) Comments on Wage Rates
Comment: One commenter cited literature and other information in
support of this rulemaking. The commenter stated that extending work
authorization to undocumented noncitizens would reduce the wage penalty
for those undocumented noncitizens, stabilize immigrant wages, and
benefit the overall economy. The commenter stated that the wage-earning
profiles of undocumented workers are far below authorized noncitizens'
and citizens' workers' age-earning profiles and is virtually flat
during most prime working years. The commenter further stated that
undocumented noncitizen women work fewer hours at lower pay than do
their undocumented noncitizen male counterparts, and that State-level
restrictions on undocumented employment increased the male wage penalty
by around 40 percent. The commenter suggested that work authorization
improves career and earnings prospects for DACA recipients and the
resulting increase in earnings and spending increases tax revenue and
labor demand, benefitting U.S. workers overall.
Response: DHS appreciates the comment in support of this rulemaking
and in drawing attention to the direct and indirect wage penalty
implications discussed in the NPRM RIA. In consideration of this
comment, DHS presents additional qualitative discussion in the final
rule RIA regarding the potential wage penalty implications of this
rulemaking given the size of the affected population. For example,
assuming all else is constant, granting employment authorization to
undocumented noncitizens and allowing them to find employment in the
formal labor market could reduce the number of undocumented workers in
the informal labor market. Thus, informal labor market wages would rise
as employers would find it necessary to raise wages to attract
remaining informal labor market undocumented participants. In this
scenario, the wage gap between documented and undocumented noncitizens
would shrink. Conversely, ``State-level restrictions'' on the hiring of
undocumented noncitizens could reduce employer demand for undocumented
workers, lowering wages for this group, thus increasing the wage gap.
These outcomes, however, are heavily dependent on theoretical
assumptions. For example, countervailing forces may be present that
could affect not just the magnitude of these wage penalty outcomes, but
even push them in opposite directions.
b. Benefits (No Action Baseline, Pre-Guidance Baseline, or Unspecified)
Quantifying the Benefits of Advance Parole
Comment: A commenter wrote that certain benefits of advance parole
to DACA recipients, such as the ability to maintain family ties across
generations, simply cannot be quantified and that these and other
benefits outweigh the policy's costs. The same commenter responded to
DHS's request for comment on how to quantify the benefits of advance
parole by stating that advance parole allows some DACA recipients to
``be the bridge between

[[Page 53255]]

generations who cannot cross borders,'' providing an anecdotal example.
Another commenter acknowledged DHS's qualitative discussion of the
benefit of advance parole and offered suggestions to quantify this
benefit, including assessing economic data on travel spending. Other
commenters responded to USCIS' statement that the benefits of advance
parole could not be quantified, stating that 45,000 DACA recipients
have been approved for international travel under advance parole as of
August 2017 (citing the Congressional Research Service). The commenters
said that this figure demonstrates the deep importance of advance
parole and listed other reasons why advance parole was beneficial for
DACA recipients, including enhanced opportunities to apply for
adjustment of status, participation in enriching educational programs,
travel for work, and ability to visit families in countries of origin.
Response: DHS appreciates the suggestions from commenters that past
demand for international travel under advance parole is indicative of
the benefit to DACA recipients of traveling for work and education, or
to visit families in countries of origin. DHS has taken these comments
into consideration in the RIA of this rule but does not quantify these
benefits. While some of the assumptions that commenters suggested would
permit DHS to quantify benefits like a reduction of fear and anxiety,
there is cause for concern about the accuracy of such estimates. For
example, assuming average annual spending on international trips to be
representative of the value of advance parole to a DACA recipient could
either overstate the kind of spending that a DACA recipient would do or
underestimate the nonmonetary benefit of attending a relative's
funeral. Describing such impacts as non-quantified in the RIA should
not be construed as a denial of their occurrence nor magnitude.
Comment: A commenter stated that, based on the USCIS analysis, the
benefits of allowing DACA recipients to stay in the United States and
work over 20 years at a 7-percent discount rate would be $400 billion
and would far outweigh the approximately $7 billion in costs. Another
commenter urged USCIS to consider the incalculable benefits DACA
provides in terms of equity, human dignity, and fairness, as well as
lifetime benefits to the economy. The commenter said that the proposed
rule lays out some benefits that would be hard to quantify, such as:
(1) a reduction of fear or anxiety for DACA recipients and their
families; (2) an increased sense of acceptance and belonging to a
community; (3) an increased sense of family security; and (4) an
increased sense of hope for the future. Another commenter similarly
said that DHS should acknowledge that the proposed rule's quantifiable
costs can be, and are, outweighed by the unquantifiable benefit to DACA
recipients, their communities, and the nation.
Response: DHS appreciates the commenters' support of the rule and
the additional evidence of the benefits of the DACA policy they
provide. DHS presents its analysis of costs and benefits of the
rulemaking in the RIA. In addition, DHS considers and discusses the
unquantifiable impacts of this rule in the RIA. DHS agrees that the
unquantifiable benefits are substantial and broadly agrees with the
commentator's characterization of some of those benefits, including
reduction of fear and anxiety.
Comment: A commenter urged DHS to use available research to
quantify the mental health benefits of the proposed rule and offered
suggestions on how to do so. The commenter also offered suggestions on
how to quantify: (1) DACA's benefits from granting individuals the
ability to travel outside of the United States; (2) the ancillary
benefits of EADs; and (3) the benefits of streamlined enforcement
encounters.
Response: DHS greatly appreciates the commenter's valuable
suggestions regarding a methodology to address the quantification of
certain benefits of this rulemaking. Consistent with E.O. 13563, DHS
agrees that quantification and monetization are desirable, to the
extent feasible and consistent with the best available evidence. As
discussed in the NPRM and in this final rule, a complete valuation of
many of these benefits is challenging and complex. There could be
starting points as to how much DACA requestors value these benefits,
such as filing costs, possibly representing a minimum willingness-to-
pay value. It is not clear, however, that these starting points
adequately capture the welfare benefits to the requestors. In addition,
DHS appreciates the commenter's suggestion to use proxies, such as
average U.S. population treatment costs for anxiety, average U.S.
population international travel costs, or average driver licenses'
costs. These are all instructive starting points or proxies for
estimation of lower bounds, and DHS has referred to them in its final
analysis. At the same time, and as explained in that analysis, DHS
continues to believe that such starting points and proxies do not
permit a full and accurate valuation of these benefits to this
population. Given this point, other public comments, and DHS's own
assessment, DHS has determined that these unquantifiable benefits are
of great positive magnitude and that attempts to fully monetize them
raise serious conceptual, normative, and empirical challenges.
Consistent with E.O. 13563, DHS has determined that considerations of
human dignity are among the main drivers of this rule, which is focused
on fortifying and preserving a policy for a vulnerable population that
has been present in the United States since 2012 and is a low priority
for enforcement measures, and on protecting the reliance interests of
DACA recipients and similarly situated noncitizens, their families,
schools, employers, communities, and States. The final analysis thus
offers relevant information on the challenging task of fully
quantifying and monetizing considerations of human dignity. Consistent
with E.O. 13563, human dignity greatly matters and is a relevant
consideration even if it cannot be quantified or turned into monetary
equivalents.
Comment: A commenter stated that the economic benefits cited in the
proposed rule come not only from DACA protections, but also from the
benefit of work authorization. The commenter said that the proposed
rule does not acknowledge that by introducing the option of severing
the requests. The commenter stated that this provision creates a
potential gap between a DACA grant, when an applicant can begin to
establish reliance interests, and the economic production cited as a
motivating factor behind the proposed rule.
Response: DHS appreciates the comment regarding the benefits of
work authorization associated with DACA. DHS considered other request
and fee structures as well as public input on this topic. As discussed
in greater detail in Section II.C.2.c, DHS has decided to codify the
longstanding required bundled process for deferred action and
employment authorization requests under the DACA policy.
c. Regulatory Alternatives
Comment: In response to the NPRM's request for comments on
regulatory alternatives in Section III.H, multiple commenters
emphasized the importance of protecting deferred action and work
authorization. Some of these commenters said that deferred action and
work authorization are not separate, as the ability for Dreamers to
freely live with their families and communities without fear of
deportation is synonymous with their ability to legally

[[Page 53256]]

work and contribute to their communities. A commenter agreed that a
policy of forbearance without work authorization would disrupt the
reliance of interests of hundreds of thousands of people, as well as
the families, employers, and communities that rely on them. The
commenter stated it would result in substantial economic losses and
would produce a great deal of human suffering, including harms to
dignitary interests, associated with lost income and ability to self-
support.
Response: DHS appreciates the commenters' statements regarding the
regulatory alternatives. DHS considered a forbearance-only alternative,
as well as other request and fee structures. Upon careful consideration
of comments received, DHS agrees that a policy of forbearance without
work authorization--while still a policy that would carry substantial
benefits--would harm the substantial reliance interest of thousands of
DACA recipients, their families, employers, and communities. In
response to these commenters, DHS also notes its extensive discussion
of its reasoning and support for maintaining employment authorization
as a component of the DACA policy in Section II.C.2. DHS therefore is
not making changes to the final rule regarding DACA requestors' ability
to request employment authorization. Further, as discussed in detail
elsewhere in this rule, DHS is codifying the longstanding requirement
that requires requestors to concurrently file Form I-765, Application
for Employment Authorization, and Form I-765WS with their Form I-821D,
Consideration of Deferred Action for Childhood Arrivals.
d. Regulatory Flexibility Act (Impact on Small Entities)
Comment: A commenter, referencing the Small Business Regulatory
Enforcement Act (SBREFA), said that strengthening DACA would create a
limitless positive impact on small businesses, while any attempt to
restrict DACA would be detrimental. Another commenter said that the
nature of the economic evidence of DACA participants in the market and
the labor force indicates that these individuals contribute in uniquely
positive ways to the economy and to small businesses. The commenter
said that immigrants are some of the nation's most prolific small
business owners, and their rates of business ownership far exceed those
of native-born citizens. Rather than harming small businesses by
forcing them to match and contribute to Federal benefits, the commenter
reasoned, DACA recipients increase the volume of small businesses in
the United States. The commenter concluded that DACA has an overall
positive effect on the U.S. economy, and on the strength,
proliferation, and livelihood of small businesses. The commenter said
that these sizable benefits are attributable not only to the DACA
policy, but more specifically to the designation that DACA recipients
are lawfully present, which enables them to join the workforce and
contribute in significant ways to the workforce and small business.
More importantly, the commenter stated, the designation makes them
eligible to receive benefits, like Social Security and Medicare, to
which they are entitled after making such a mark on the U.S. economy.
Response: DHS appreciates the comment regarding the RFA, SBREFA,
and the impact on small business in relation to DACA. DHS presents
possible direct and indirect costs and benefits of this rulemaking in
the RIA and in Section II.A.6. However, DHS reiterates that this rule
does not directly regulate small entities, including small businesses,
and is not expected to have a direct effect on small entities. This
rule does not mandate any actions or requirements for small entities in
the process of a noncitizen requesting deferred action or employment
authorization under the DACA policy. Rather, this rule regulates
individuals, and individuals are not defined as ``small entities'' by
the RFA.\325\ Based on the evidence presented in this analysis and
throughout the preamble, DHS certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

\325\ 5 U.S.C. 601(6).
---------------------------------------------------------------------------

e. Other Comments on Costs and Benefits
Comment: Expressing mixed views on the proposed rule, a commenter
encouraged DHS and the Office of Management and Budget to adopt the
proposed rule once a final cost-benefit analysis is made.
Response: DHS appreciates the comment in support of promulgating
the DACA final rule. DHS provided the public an opportunity to comment
on the RIA that presents possible direct and indirect costs and
benefits of this rulemaking as well as the quantified and qualitative
costs and benefits. DHS has fully considered the public comments
received and has made relevant changes to the RIA.
2. Paperwork Reduction Act (Including Comments on Actual Forms/
Instructions, and Burden Estimates for Forms I-821D and I-765)
Comment: A commenter requested that prominent information be placed
on the Form I-765WS, Employment Authorization Worksheet, that specifies
and clearly explains the new, higher standard for passing the Form I-
765WS review.
Response: DHS is not changing, nor did it propose to change, the
standard for demonstrating economic necessity via Form I-765WS for DACA
requestors applying for employment authorization. Although the NPRM
proposed making it optional for DACA requestors to file a Form I-765,
Application for Employment Authorization, DHS did not propose any
changes to the existing general rule for establishing economic
necessity, which is determined on a case-by-case basis pursuant to 8
CFR 274a.12(e). In this final rule, DHS is codifying the status quo
bundled process that requires the Form I-765 with accompanying Form I-
765WS be filed together with the Form I-821D. DHS is not modifying the
rule to eliminate or change the requirement of demonstrating economic
necessity. Therefore, DHS is not making any changes in response to the
commenter's request.
3. Other Statutory and Regulatory Requirements (e.g., National
Environmental Policy Act)
National Environmental Policy Act
Comment: Commenters expressed concerns that DHS has not adequately
complied with the National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq, by failing to consider potential environmental impacts of
this rule. Commenters contend that allowing DACA recipients to remain
in the United States has the effect of adding people to (or not
removing people from) the U.S. population, which requires preparation
of an environmental impact statement or environmental assessment to
comply with NEPA. Commenters contend that the environmental impact of
the proposed regulatory action was not unduly speculative for DHS to
analyze and make projections of various potential effects resulting
from allowing individuals to remain in the United States. Commenters
also disagreed with DHS's determination in the NPRM that categorical
exclusion A3(c) applies to this action, arguing that A3(c) cannot be
applied because no prior NEPA analysis was conducted for the DACA
policy contained in the 2012 Napolitano Memorandum.

[[Page 53257]]

Response: This action codifies DHS policy regarding exercise of
enforcement discretion and defines the criteria under which DHS may
exercise that discretion, with respect to a defined category of persons
that have been present in the United States since at least 2007.
The commenters assumed this rule will result in 800,000 ``extra
people'' in the U.S. population because individuals meeting the
threshold criteria would be removed from or depart the United States
absent this rule. DHS disagrees with both assumptions. The persons
subject to the Secretary's 2012 policy of enforcement discretion have,
by definition, been present in the United States since at least 2007
without lawful status. Promulgation of this rule will neither directly
``add'' to the number of individuals currently residing in the United
States nor increase population growth. DHS also disagrees with the
commenters' assumption that in the absence of the rule DACA recipients
would be removed or would leave the United States voluntarily. DACA
recipients necessarily came to the United States at a very young age,
and many have lived in the United States for effectively their entire
lives. For many DACA recipients, the United States is their only home.
Indeed, some DACA recipients do not even speak the language of their
parents' home country. They are unlikely to voluntarily leave the only
country they have ever known. Nor is it reasonably foreseeable that
their removal would soon be a priority for the agency.
DHS disagrees with the commenters' assertion that this rule ``would
ultimately grant approximately 800,000 illegal aliens the right to stay
and work in the U.S.'' This rule does not provide any protection from
removal or access to employment authorization beyond what is
contemplated in the 2012 DACA policy. It is intended to preserve and
fortify the existing DACA policy; it does not alter DACA eligibility
criteria, grant lawful immigration status or citizenship for
noncitizens or provide a means for entry into the United States.
Therefore, DHS anticipates no change in U.S. population as a direct
effect of this rule.
In addition, as discussed above, DHS does not believe that
codification of the DACA policy is likely to have measurable population
effects nationwide or in any particular locations. If such effects were
to occur, the relationship between such effects and this rule would
likely be highly attenuated. Impacts in particular locations would be
contingent upon the independent decisions of individual current and
prospective DACA recipients, and upon choices and decision-making
processes across a range of individuals and institutions (e.g.,
employers, law enforcement officers, courts) at indeterminate times and
locations in the future under unknown and unpredictable economic,
personal, and employment conditions and circumstances entirely outside
the control of DHS.
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. The
Instruction Manual establishes categorical exclusions that DHS has
found to have no such effect. 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 extraordinary
circumstances exist that create the potential for a significant
environmental effect.
This rulemaking implements, without material change, the 2012 DACA
policy addressing exercise of enforcement discretion with respect to a
specifically defined population of noncitizens and is not part of a
larger DHS action. 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. DHS considered the potential environmental impacts of this
rule with respect to an existing population that has been present in
the United States since at least 2007 and determined, in accordance
with the Instruction Manual, that this rule does not present
extraordinary circumstances that would preclude application of a
categorical exclusion.
This rule, therefore, satisfies the requirements for application of
categorical exclusion A3(c) in accordance with the Department's
approved NEPA procedures. DHS does not agree with commenters' assertion
that categorical exclusion A3(c) cannot be applied to this action
unless DHS first ``establish[es] that it had not previously violated
NEPA'' because it would effectively impose a new procedural step or
condition on application of categorical exclusions that is not required
or approved for the Department's NEPA implementing procedures.
Commenters also raised broader concerns about the adequacy of DHS's
NEPA compliance procedures as set forth in the DHS Directive and
Instruction Manual. Those concerns are outside the scope of this
rulemaking.
Family Assessment
Comment: Two commenters stated that the proposed rule's Family
Assessment is incomplete because the rule does not provide additional
administrative relief for or properly considers DACA-eligible
individuals' parents, spouses, grandparents, and other loved ones
central to their lives.
Response: As described in the Family Assessment in Section III.H,
DHS has assessed the effect of this rule on family well-being as
required by section 654 of the Treasury and General Government
Appropriations Act, 1999,\326\ enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999.\327\
In doing so, DHS considered the effect of this rule on the family, as
family is defined in section 654(b)(2) of that act. While DHS
appreciates the commenters' desire to provide additional administrative
relief to DACA recipients' parents, spouses, grandparents, and other
loved ones central to their lives, such relief falls outside of the
scope of this rule, which is limited to the population described within
this rule.
---------------------------------------------------------------------------

\326\ See 5 U.S.C. 601 note.
\327\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

F. Out of Scope

As noted throughout this preamble, a number of comments were
submitted that did not relate to the substance of the NPRM. Several
commenters expressed general opposition to the current administration
or its handling of immigration policy, without referring to the
proposed rule at all. Some commenters expressed direct opposition to
specific political parties, while others opposed Congress.
Multiple commenters shared the challenges they faced in the United
States as either an undocumented or documented immigrant without
referring to the substance of this rulemaking. Other comments were from
noncitizens seeking information or

[[Page 53258]]

making requests regarding their own cases.
Numerous commenters provided general support for immigration but
did not explicitly refer to DACA. Other out-of-scope comments related
to the COVID-19 pandemic, asylum seekers and the Asylum Officer
proposed rule, recommendations not pertaining to this rule, and general
statements unrelated to the substance of the regulation. DHS has
reviewed and considered all such comments and incorporated them as
applicable.

III. Statutory and Regulatory Requirements

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

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 human dignity. The latter values
are highly and particularly relevant here.
This final rule is designated as a ``significant regulatory
action'' that is economically significant since it is estimated the
rule will 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
final regulation.
1. Summary of Major Provisions of the Regulatory Action
This final rule will 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 earlier as children, who have no current
lawful immigration status, and who are generally low enforcement
priorities. The final rule codifies the following provisions of the
DACA policy from the Napolitano Memorandum and longstanding USCIS
practice:
Deferred Action. The final rule codifies the definition of
deferred action as a temporary forbearance from removal that does not
confer any right or entitlement to remain in or reenter the United
States and does not prevent DHS from initiating any criminal or other
enforcement action against the DACA requestor at any time.
Threshold Criteria. The final rule codifies the
longstanding threshold criteria where 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 8 CFR 236.22(b)(6) of the final 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--with
additional clarifications explained below; 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 final rule also
codifies 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.
Employment Authorization. The final rule codifies DACA-
related employment authorization for deferred action recipients in a
new paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph
does not constitute any substantive change in current policy and,
therefore, the final rule will continue to specify that the noncitizen
must have been granted deferred action and must establish economic need
to be eligible for employment authorization.
``Lawful Presence.'' The final 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 final 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).
Procedures for Request and Restrictions on Information
Use. The final rule codifies the procedures for denial of a request for
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 the retention of longstanding DACA policy and
procedure, the final rule includes the following changes in comparison
to the NPRM:
Filing Requirements. The final rule codifies the
longstanding bundled filing requirement, in which requestors must file
Form I-765, Application for Employment Authorization, and Form I-765WS,
concurrently with the Form I-821D Consideration of Deferred Action for
Childhood Arrivals. See new 8 CFR 236.23(a)(1).
Criminal History, Public Safety, and National Security:
The NPRM proposed to codify at 8 CFR 236.22(b)(6) the longstanding
criminal history, public safety, and national security criteria for
consideration of DACA. Upon careful consideration of comments received
on this NPRM provision, DHS is revising this provision to additionally
clarify that, consistent with longstanding DACA policy, expunged
convictions, juvenile delinquency adjudications, and immigration-
related offenses characterized as felonies or misdemeanors under State
laws are not considered automatically disqualifying convictions for
purposes of this provision. See new 8 CFR 236.22(b)(6).\328\
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\328\ Regarding the criteria related to criminal convictions,
DHS also clarified in the preamble to this final rule that it does
not intend to retain the provision in the DACA FAQs that in
exceptional circumstances DHS may grant DACA notwithstanding that
the requestor does not meet the criminal guidelines. USCIS has
rarely, if ever, found exceptional circumstances that warrant a
grant of DACA where the requestor does not meet the criminal
guidelines.
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Termination of DACA: The NPRM proposed to codify at 8 CFR
236.23(d)(1) and (2) DHS's longstanding DACA termination policy, as it
existed prior to the preliminary injunction issued in Inland Empire-
Immigrant Youth Collective v. Nielsen, No. 17-2048, 2018 WL 1061408
(C.D. Cal. Feb. 26, 2018), with some modifications. The rule proposed
that USCIS could terminate DACA at any time in its discretion with or
without a NOIT, and that DACA would terminate automatically upon
departure from the United States

[[Page 53259]]

without advance parole and upon filing of an NTA with EOIR (a
modification from the prior policy of automatic termination upon NTA
issuance), but DACA would not terminate automatically in the case of a
USCIS-issued NTA solely based on an asylum referral to EOIR. The NPRM
raised four alternative approaches and invited comment on these and
other alternatives for DACA termination. After careful consideration of
the comments on this provision and the alternatives suggested in the
NPRM and by commenters, DHS is maintaining in the final rule that USCIS
may terminate DACA at any time in its discretion. However, DHS is
revising this provision to provide that USCIS will generally provide
DACA recipients with a NOIT prior to termination of DACA, but maintains
discretion to terminate DACA without a NOIT if the individual is
convicted of a national security related offense involving conduct
described in 8 U.S.C. 1182(a)(3)(B)(iii), (iv), or 1227(a)(4)(A)(i), or
an egregious public safety offense. DHS is also revising this provision
to provide that DACA recipients who depart the United States without
advance parole, but who are nonetheless paroled back into the United
States, will resume their DACA upon expiration of the period of parole.
See new 8 CFR 236.23(d)(1) and (2).
Automatic Termination of Employment Authorization. The
NPRM proposed at 8 CFR 236.23(d)(3) that employment authorization would
terminate automatically upon termination of DACA. This provision
included a cross reference to 8 CFR 274a.14(a)(1)(iv), however on
February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in Asylumworks,
et al. v. Mayorkas, et al., civ. 20-cv-3815 (D.D.C. Feb. 7, 2022). As a
result of the vacatur and additional revisions to the DACA terminations
provisions to eliminate automatic termination based on filing of an
NTA, as described in this preamble, DHS is modifying 8 CFR 236.23(d)(3)
in this final rule to remove the vacated cross reference and clarify
that employment authorization terminates when DACA is terminated and
not separately when removal proceedings are instituted. See new 8 CFR
236.23(d)(3).
Provision Rescinding and Replacing the Napolitano
Memorandum. In this final rule, DHS is clarifying at 8 CFR 236.21(d)
that this subpart rescinds and replaces the DACA guidance set forth in
the Napolitano Memorandum and from this point forward governs all
current and future DACA grants and requests. DHS also clarifies that
existing recipients need not request DACA anew under this new rule to
retain their current DACA grants. Historically, DHS has promulgated
rules without expressly rescinding prior guidance in the regulatory
text itself. However, DHS has chosen to depart from previous practice
in light of the various issues and concerns raised in ongoing
litigation challenging the Napolitano Memorandum. See new 8 CFR
236.21(d).
2. Summary of Costs and Benefits of the Final Rule
In light of public comments, DHS has made some adjustment to parts
of this RIA analysis. The following table captures the changes in the
RIA from the NPRM to the final rule.
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The final rule will result in new costs, benefits, and transfers.
To provide a full understanding of the impacts of DACA, DHS considers
the potential impacts of this final rule relative to two baselines. The
No Action Baseline represents a state of the world under the DACA
policy; that is, the policy initiated by the guidance in the Napolitano
Memorandum in 2012 and prior to the July 16, 2021 Texas decision.
However, the No Action Baseline does not directly account for the Texas
decision, as discussed further in the Population Estimates and Other
Assumptions section discussing this baseline. The second baseline
considered in the analysis is the Pre-Guidance Baseline, which
represents a state of the world before the issuance of the Napolitano
Memorandum, where the DACA policy did not exist and has never existed.
To better understand the effects of the DACA policy, we focus on the
Pre-Guidance Baseline as the most useful point of reference, as it
captures the effects of going from a world completely without the DACA
policy to a world with the DACA policy.
Table 4 provides a detailed summary of the provisions and their
estimated impacts relative to the No Action Baseline. Additionally,
Table 5 provides a detailed summary of the provisions and their
estimated 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 6 and Table 7 present the prepared accounting
statements showing the costs, benefits, and transfers associated with
this regulation relative to the No Action Baseline and the Pre-Guidance
Baseline, respectively.\329\
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\329\ See OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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Table 7 shows the pre-guidance baseline estimates, which are a
comprehensive assessment of the costs and benefits of the rule. Note
that the monetized benefits and transfers are a maximum estimate. We
are unable to provide a range because of uncertainty as to two factors:
(1) the substitutability of workers, and (2) the extent to which the
relevant population would be willing and able to work without
authorization in the absence of DACA. See discussion in Sections
III.A.4.b.6. and III.A.4.b.7.

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3. Background and Purpose of the Rule
The INA 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 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\
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\330\ Public Law 82-414, 66 Stat. 163 (as amended); 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).
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The Secretary, in this final rule, establishes 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 final rule will 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 final rule will preserve not only DACA recipients'
substantial reliance interests, but also those of their families,
schools, employers, faith groups, and communities.\334\ The final rule
also will

[[Page 53271]]

help to appropriately focus the Department's limited immigration
enforcement resources on threats to national security, public safety,
and border security where they are most needed.
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\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
policy. 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)).
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4. Cost-Benefit Analysis
In light of public comments received and relative to the NPRM RIA,
DHS has adjusted parts of the RIA for this final rule to incorporate
some of the ideas and suggestions presented in various public comments.
For example, relative to the NPRM, DHS adjusted the projected DACA
population age distribution to account for the possibility that the
eligible and active population might age over the next 10 years,
thereby moving into higher age groups. As a result of the updated age
distribution, the estimated labor force participation rate of the
active DACA population also changed. The age distribution is used in
the estimation of an average compensation rate for DACA recipients. The
average compensation rate together with the estimated labor force
participation rate of the active DACA population are used in the
estimation of costs, benefits, and transfers of this final rule. In the
final rule, DHS also accounted for the value of non-paid time which
individuals would forgo when approved for DACA and if they chose to
participate in the labor market. This value was subtracted from the
estimated benefits. Further, DHS made additions to the qualitative
discussion regarding the unquantified and unmonetized benefits after
considering suggestions from commenters regarding potential
quantification and monetization of certain benefits bestowed on the
DACA population by this rulemaking. Additionally, the final rule
codifies the longstanding bundled filing requirements and reclassifies
the $85 biometrics fee as a Form I-821D filing fee. As such, a complete
DACA request under the final rule includes Forms I-821D, I-765, and I-
765WS with total fees of $495. Relative to the NPRM, this final rule no
longer estimates any potential cost savings from the request and fee
structure in the No Action Baseline and no potential transfers from
USCIS to the DACA requestor population as DHS is codifying the status
quo bundled filing process instead of the proposed provision to
unbundle the requests for deferred action from the Application for
Employment Authorization. The details of all the adjustments are
presented and incorporated throughout this RIA.
DHS estimates the potential impacts of this final rule relative to
two baselines. The first baseline is a No Action Baseline, which
represents a state of the world wherein the DACA policy would be
expected to continue under the Napolitano Memorandum guidance. The No
Action Baseline does not account for the July 16, 2021, district court
decision, as discussed further in the Population Estimates and Other
Assumptions section below discussing this baseline. Relative to this
baseline, there were no quantitative and monetized impacts.
The second baseline considered in the analysis is a Pre-Guidance
Baseline, which represents a state of the world before the guidance in
the Napolitano Memorandum, where the DACA policy does not exist and has
never existed. The Pre-Guidance Baseline is included in this analysis
in accordance with OMB Circular A-4 guidance, 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 policy was implemented through DHS and USCIS
guidance. DHS has not performed a regulatory analysis on the regulatory
costs and benefits of the DACA policy guidance previously and,
therefore, includes a Pre-Guidance Baseline in this analysis for
clarity and completeness. Moreover, DHS presents the Pre-Guidance
Baseline to provide a more informed picture on the overall impacts of
the DACA policy since its inception, while at the same time recognizing
that many of these impacts have already been realized. DHS notes that
the Pre-Guidance Baseline analysis also can be used to better
understand the state of the world under the district court's decision
in Texas, should the partial stay of that decision be lifted. Relative
to this baseline, DHS estimated annualized net benefits of $21.9
billion at a 3-percent discount rate or $20.7 billion at a 7-percent
discount rate, annualized costs of $494.9 million at a 3-percent
discount rate or $480.8 million at a 7-percent discount rate, and
annualized transfers of $5.4 billion at a 3-percent discount rate or
$5.2 billion at a 7-percent discount rate.
---------------------------------------------------------------------------

\335\ See OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

The cost-benefit analysis of the RIA presents the impacts of this
final rule relative to the No Action Baseline first, and then relative
to the Pre-Guidance Baseline. In each of the baseline analyses, we
begin by specifying the assumptions and estimates used in calculating
any costs, benefits, and transfers of this final rule.
a. No Action Baseline
(1) Population Estimates and Other Assumptions
The numbers presented in this section have not changed from the
NPRM to the final rule. Based on the public comments received, DHS
added more clarity to some of the assumptions used in making the
population projections in this section. For example, DHS clarified
further that the averages of the ``stable'' period and not its trends
are used in the projections of the population numbers.
The final rule will 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 certain individuals to request an exercise of
discretion in the form of 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.
DHS recognizes a growing literature on the impacts of DACA that
identifies noncitizens who may potentially meet DACA threshold criteria
based on age and length of time in the United States. This approach to
estimating the population affected by this final rule estimates the
total number of people who are potentially eligible for consideration
for deferred action under the DACA policy and then predicts the
proportion of those people who will request DACA in the future. Widely
available national microdata that reports the immigration status of the
foreign-born population does not exist. The subpopulation that is
potentially eligible to request DACA must therefore be estimated by
other means. In general, analysts estimate the size of the DACA-
eligible population using a residual method in which the total foreign-
born population is estimated using various

[[Page 53272]]

surveys.\336\ The unlawfully and lawfully present foreign-born
population can be estimated based on DHS administrative records,
including a mix of DHS administrative records and logical rules based
on foreign-born demographic characteristics.\337\ Further, the
demographic characteristics from some of the underlying survey data may
be used to further identify the portion of the unauthorized population
that would potentially meet the DACA criteria, although some factors,
such as education, criminal history, and discretionary determinations
may not be accounted for in such estimates. For example, the Migration
Policy Institute (MPI) estimates an eligible DACA population of 1.7
million, including the currently active population, although this
estimate looked only at certain eligibility criteria and did not
consider the proportion of the potentially-eligible population who may
not meet the criminal history or continuous physical presence criteria,
or who might merit a favorable exercise of discretion, meaning that it
is likely an overestimate.\338\ Historical DHS administrative data
between FY 2012 and FY 2021 show a total of around 1 million initial
DACA requests.\339\ Thus, MPI's estimate implies a remaining DACA-
eligible population of up to roughly 700,000 people.
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\336\ The surveys may include the U.S. Census Bureau's American
Community Survey (ACS), the Current Population Survey (CPS), the
American Time Use Survey, and the Survey of Income and Program
Participation (SIPP), among others.
\337\ See, e.g., 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/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf.
\338\ For more details and additional resources on this
methodology, see 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 (accessed May 16,
2022).
\339\ Source: DHS/USCIS/OPQ (July 2021).
---------------------------------------------------------------------------

DHS has two concerns with adopting this approach to estimate the
number of future DACA requestors. First, as analysts who use the
residual method observe, the approach is complex and highly sensitive
to specific modeling assumptions. In a 2021 report estimating the U.S.
unauthorized immigrant population for the period January 2015 to
January 2018, OIS states 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].'' \340\
Additionally, the U.S. Census Bureau (Census) details the many complex
adjustments applied to produce estimates of the population by sex, age,
race, Hispanic origin, and number of household units in the latest ACS
design and methodology report on weighting and estimation,\341\
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.'' \342\ 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:
---------------------------------------------------------------------------

\340\ See 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/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf, at 10.
\341\ 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 (accessed Mar. 23, 2022).
\342\ 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.\343\
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\343\ 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.\344\
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\344\ 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 (Jan. 2017), 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.''
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A second concern about using the residual method to estimate the
number of future DACA requestors is that even if DHS accurately
estimates the total DACA-eligible population, DHS will still need a
reliable methodology to predict how many potentially DACA-eligible
individuals will actually request DACA in the future. Given the nature
of the DACA policy, political factors, the challenging legal history,
and the characteristics of the active DACA and DACA-eligible
populations, including varying personal circumstances and expectations,
predicting how many potentially eligible noncitizens may request DACA
would be uncertain and complex, even if a census of the remaining DACA-
eligible population existed. Therefore, in the context of this final
rule, DHS relies instead on the administrative data USCIS collects from
individuals who have requested DACA over the past several years, as
described later in this analysis.
To provide a framework for the baseline population estimates, DHS
starts by first presenting historical USCIS data on the active DACA
population and then presenting historical data on DACA request
receipts. These data provide a sense of historical participation in the
policy and insights into any trends. The data also allow DHS to make
certain assumptions in estimating a potential future active DACA
population that would enjoy the benefits of this policy and that may
contribute potential transfers to other populations as well as in
estimating potential future DACA request receipts (i.e., the population
that would incur the costs associated with applying under the policy).
DHS therefore proceeds by presenting first the historical active DACA
population and its estimates of a potential future active DACA
population, and then the historical volume of DACA request receipts and
its estimates of this potential future population.
However, before presenting the historical and projected populations
associated with this rule, DHS first identifies certain historical time
periods of interest for this analysis. Historically, the 2012 and,
subsequently, the 2017 DACA-related memoranda have shaped the level of
participation in the DACA policy. The 2012 Napolitano Memorandum
initiated the policy, and the 2017 Duke Memorandum halted

[[Page 53273]]

new requests.\345\ As such, DHS identifies three periods of interest:
(1) a surge period, FY 2012-FY 2014, where initial requests were high
compared to later years; (2) a stable policy 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 (3) a cooling-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.\346\
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\345\ 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). In July 2020, then-Acting Secretary Wolf issued a memorandum
rescinding the Duke and Nielsen memoranda and making certain
immediate changes to the DACA policy, namely directing DHS personnel
to reject all pending and future initial requests for DACA, reject
all pending and future applications for advance parole absent
exceptional circumstances, and shorten DACA renewals. Memorandum
from Chad F. Wolf, Acting Secretary, to heads of immigration
components of DHS, Reconsideration of the June 15, 2012 Memorandum
Entitled ``Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children,'' dated July
28, 2020 (hereinafter Wolf Memorandum). The effect of the Duke
Memorandum, along with these court orders and the Wolf Memorandum,
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).
\346\ DHS believes it is likely that the initial surge in DACA
requests reflects a rush of interest in the new policy, 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 litigation
regarding the 2014 Memorandum described above, which began in 2014.
The limits on requests described above, supra n.345, along with
changes in the national political sphere, likely account for much of
the ``cooling off'' after 2017.
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Table 8 presents historical data on the volume of DACA recipients
who were active as of September 30th of each fiscal year. For clarity,
``active'' is defined as those recipients who have an approved Form I-
821D and I-765 in the relevant USCIS database. The approval can be
either an initial or a renewal approval. Additionally, DHS does not
need specificity or further breakdown of these data into initial and
renewal recipients to project this active DACA population and calculate
associated monetized benefits and transfers based on the methodology
employed in this RIA. Both initial recipients and renewal recipients
are issued an EAD that could be used to participate in the labor
market.\347\ Therefore, the annual cumulative totals of the active DACA
population suffices for estimating the quantified and monetized
benefits and transfers of this final rule that stem from the potential
labor market earnings of the DACA population with an EAD.
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\347\ 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.
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On July 16, 2021, the Texas decision enjoined USCIS from approving
initial DACA requests.\348\ Nevertheless, for this RIA, DHS 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 9 presents DHS's estimates
for the active DACA population for FY 2021-FY 2031. Given the
motivation and scope of this final rule, DHS assumes that upon the
implementation of the final rule the DACA policy will be characterized
by relatively more stability, where 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 uses the average
annual growth rate of 3.6174 percent in the stable policy period, FY
2015-FY 2017,\349\ and multiplied it by the current year cumulative
totals to obtain the next year's estimated active DACA population.
Therefore, the values in Table 9 grow at an annual rate of 3.6174
percent. These estimates will be used later when calculating the
monetized benefits and transfers of this final rule.
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\348\ 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.
\349\ For clarity and in consideration of public comments, DHS
reemphasizes that the average of period FY 2015-FY 2017 is used, and
not the trend.

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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 policy
data), it also has some potential limitations. For instance, the
methodology assumes that the active DACA population again will grow at
the average rate it grew over the period FY 2015-FY 2017, which was
just a few years after the Napolitano Memorandum was issued.
Additionally, public comments on this rulemaking have raised concerns
over the fact that potential DACA requestors stopped ``aging in'' to
the policy in June 2022, which is when the youngest possible requestor
reaches 15 years of age. However, DHS does not believe there will
necessarily be a precipitous decline in the growth rate of DACA
requestors after new requestors stop ``aging in'' in 2022. For example,
some individuals may newly meet the criteria after June 2022, upon
satisfying the educational or military service requirement for the
first time. Nothing in the DACA age threshold criteria restrict the
population projections made by DHS in this final rule. Nevertheless,
DHS projects a decline over the analysis period, albeit gradual, of
Initial requests in Table 11.
Similarly, the active DACA population projections do not directly
capture the possibility that there could be a surge of request receipts
following publication of a final rule, followed by a slower growth rate
in later years. However, USCIS notes that projecting a surge in request
receipts does not necessarily imply a surge in the active DACA
population. The levels of approvals, renewals, and noncitizens renewing
or lapsing deferred action under the DACA policy can vary. For example,
there could be delays in processing requests caused by the surge of new
requests (assuming USCIS maintains current staffing levels) or by other
events, noncitizens could cease making renewal requests at higher rates
than before, or approval rates could change relative to historical
trends. As mentioned previously, a continuation of the injunction on
approving initial DACA requests would curtail initial requests.
Next, DHS presents the population used when calculating the
monetized costs of this final rule. Table 10 presents historical data
on the numbers of DACA request receipts. This population incurred the
cost of requesting DACA. The population is composed of initial and
renewal requestors, both of whom face similar costs, such as filing
fees,\350\ time burdens, and opportunity costs. For clarity, this table
represents intake and processing data and is silent on the number of
requests that were approved as that level of detail is not required to
estimate the monetized costs of this final rule. DHS only needs total
receipts to estimate the monetized costs of this final rule.
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\350\ 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.

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[[Page 53276]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.025

To project total DACA receipts, DHS uses the historical information
from Table 10 with the intention 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 stopped ``aging
in'' in June 2022. DHS first calculates the percentage of initial
requests in the previously defined surge years FY 2012-FY 2014 out of
the total period FY 2012-FY 2017 to account for a similar possibility
in projections, which DHS calls a surge rate.\351\ This surge rate is
77.7595 percent. Second, DHS calculates the average initial requests
over the stable period of FY 2015-FY 2017, which is 70,868.33. Third,
DHS calculates the average annual rate of growth of 29.08806 percent
for initial requests over FY 2015-FY 2017. Fourth, DHS calculates the
average number of renewal requests over FY 2015-FY 2020, which is
349,165.83. DHS 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.
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\351\ 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 = 77.7595%.
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Table 11 presents the projected volume of DACA request receipts.
DHS estimates a surge component in initial requests over FY 2021-FY
2022. As stated, these projections do not adjust for the uncertain
impacts of the Texas injunction on initial requests. To estimate the
surge component, DHS first calculates the total number of historic
initials over the stable period FY 2015-FY 2017, which is 212,605. DHS
then multiplies this number by the surge rate of 77.7595 percent to
estimate a potential surge in its projections of 165,320.57 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 82,660.29. Adding to this number the
average number of historic initial requests of 70,868.33 yields a total
(surge) number of 153,528.62 initial requests for FY 2021 and FY 2022.
Starting with FY 2024, DHS applies the historic FY 2015-FY 2017 growth
rate of -29.08806 percent to initial requests for the rest of the
projected years.\352\
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\352\ For example: FY 2024 = FY 2023 * (1-29.08806%), which
yields 70,868.33 * (1-0.2908806) = 50,254.11.
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The renewals in FY 2023-FY 2024 capture this surge as the
historical average number of renewals of 349,165.83 plus 153,528.62.
DACA recipients can renew their requests for 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 final 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 policy data, the methodology assumes that the ``surge rate''
for DACA requests following publication of this 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, subsequent guidance,
and ongoing litigation. But there are also reasons to question it, such
as the potential that demand was exhausted in the years before issuance
of the Duke Memorandum, such that any ``surge'' in requests would
consist primarily of requests from individuals who turned 15 after the
Duke Memorandum was issued.

[[Page 53277]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.026

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.\353\ These data include requests filed
during earlier periods in which DHS did not accept most initial DACA
requests due to ongoing litigation and subsequent policy changes.\354\
For the projections presented in this RIA, it is assumed that initial
DACA requests would be accepted without interruptions from any legal
rulings on the policy 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.
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\353\ Source: DHS/USCIS/OPQ (July 2021).
\354\ See Section II.B above for litigation history, including
Regents, 140 S. Ct. 1891 (2020), and Texas, 549 F. Supp. 3d 572
(S.D. Tex. 2021).
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In sum, while population estimates in this final rule are
consistent with the overall MPI population estimate,\355\ this RIA
relies on historical request data to estimate future DACA requests
rather than estimating the overall DACA-eligible population and then
further estimating the share of the population likely to request DACA
in the future. Either approach would still require a methodology for
projecting how many potentially eligible individuals might choose to
request DACA and also stay active. 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 request data offers
an especially transparent and easily reproducible estimation
methodology.
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\355\ That is, the DHS projected number of DACA requests, and
active DACA recipients falls within the ranges estimated by the
residual-based methodology.
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(2) Forms and Fees
The final rule codifies, as proposed in the NPRM, that the Form I-
821D require an $85 filing fee and eliminates the $85 biometrics fee
that had been assessed since the Napolitano Memorandum was issued.\356\
Individuals requesting deferred action under the DACA policy must file
Form I-821D to be considered. Currently, and as codified in the final
rule, all individuals filing Form I-821D to request deferred action
under DACA, whether for initial consideration of or renewal of DACA,
also must file Form I-765 and Form I-765WS (Form I-765 Worksheet) and
pay relevant fees. Submission of Forms I-821D, I-765, and I-765WS and
filing fees together is considered to comprise a complete DACA
request.\357\ Additionally, certain DACA requestors choose to have a
representative, such as a lawyer, prepare and file their DACA
request.\358\ In such cases, a Form G-28 must accompany a complete DACA
request.\359\
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\356\ See new 8 CFR 106.2(a)(38).
\357\ See new 8 CFR 236.23(a)(1).
\358\ 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.
\359\ 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)).

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[[Page 53278]]

The final rule sets for the following fees associated with a DACA
request: the fee to file Form I-765 is $410; a $85 filing fee for Form
I-821D; no filing fee for Form I-765WS, or Form G-28; and no biometric
services fee. Therefore, the total fee as of May 20, 2020, to submit a
DACA request is $495, with or without the submission of Form G-28. DHS
believes this is a reasonable proxy for the Government's costs of
processing and vetting these forms when filed together.\360\ As stated
in the NPRM, USCIS data suggest there is a negligible workload
difference from adjudicating Form I-821D when submitted with Form I-
765.\361\ These fees will allow DHS to recover the Government's costs
of processing these forms in line with USCIS' standard fee-funded
operating structure. In the future, DHS plans to propose new USCIS fees
in a separate rulemaking after evaluating the resource requirements for
Form I-765 and other immigration benefit requests.\362\ The fee for
Form I-765 as of May 20, 2020 may need to be adjusted because it has
not changed since 2016.\363\
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\360\ USCIS Office of the Chief Financial Officer (OCFO)
analysis.
\361\ See 86 FR 53764.
\362\ See 87 FR 5241.
\363\ See 81 FR 73292.
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(3) Wage Assumptions
Compared to the NPRM, in this final rule, DHS adjusted the
preparer's estimated total compensation rate to reflect BLS data
updates and the estimated DACA recipients' total compensation rate to
reflect an adjusted DACA population age distribution. These adjustments
are described in detail below. The estimated hourly compensation 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, DHS explains
how it estimates compensation rates of the preparers and requestors.
All compensation estimates are in 2020 dollars.
A DACA request can be prepared on behalf of the requestor. In this
final rule, DHS assumes 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.\364\
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\364\ 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.
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.
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To estimate the hourly opportunity cost of time of the DACA
requestor population, DHS uses data from Census and USCIS. DHS assumes,
for the purposes of this analysis, that the profile of DACA recipients
follows that of the U.S. population at large. For example, DHS assumes
that the average DACA recipient values education and employment in a
similar way as the average person in the U.S. population. This allows
DHS to use other government agencies' official data, such as Census
data, to estimate DACA recipient compensation rates and other economic
characteristics given the absence of DHS-specific DACA recipient
population economic data.
USCIS data on the active DACA population \365\ lend themselves to
delineation by age group: 15 to 24, 25 to 34, and 35 to 44.\366\ In an
effort to provide a more focused estimate of wages, DHS uses these age
groups in its estimates, assuming that different age groups have
different earnings potential. DHS estimates these age groups to
represent about 36 percent, 56 percent, and 9 percent, respectively, of
the total DACA population. Based on the public comments DHS received
regarding the FY 2022 ``aging in'' aspect of the DACA policy, DHS has
adjusted its analysis in the final rule to account for the aging of the
DACA recipient population, which implies a shift in the age
distributions. As such, DHS takes the average of the FY 2021 age
distribution of the DACA-eligible population (15 to 24 years old [36
percent], 25 to 34 years old [56 percent], and 35 to 44 years old [9
percent]) and FY 2031 age distribution (15 to 24 years old [0 percent],
25 to 34 years old [36 percent], and 35 to 44 years old [64
percent]).\367\ Therefore, DHS assumes an overall age group
distribution of the DACA-eligible population to be 18 percent for those
15 to 24 years old; 46 percent for those 25 to 34 years old; and 37
percent for those 35 to 44 years old. For the purposes of this
analysis, these calculations seek to account for a range of possible
DACA recipients' skill, education, and experience levels. This age
distribution could be expected to change over time.
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\365\ 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).
\366\ 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 policy. The current
(age) requirements of the DACA policy do not prohibit us from making
this assumption.
\367\ We assume the age group 15-24 has no members by the end of
the projection period, FY 2031. To obtain the FY 2031 age group
distribution, we shift the FY 2021 distribution under the assumption
that DACA recipients in a particular age group retain their DACA
approval as they age throughout the projection period of this
analysis. That is, (a) age group 15-24 becomes 0 percent of the
population; (b) FY 2031 age group 25-34 becomes the FY 2021 age
group 15-24, with 36 percent of the population; and (c) FY 2031 age
group 35-44 becomes 64 percent of the population, which is the sum
of FY 2021 age group 25-34 (56 percent) and FY 2021 age group 35-44
(9 percent).
---------------------------------------------------------------------------

Next, DHS seeks to estimate an average compensation rate that
accounts for income variations across these age groups. DHS first
obtains annual average Consumer Price Index information for calendar
years 2012 through 2020.\368\ DHS sets 2020 as the base year and then
calculate historical average annual incomes (in 2020 dollars) based on
Census historical income data.\369\ 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
$18,389.39, $45,528.59, and $60,767.17, respectively.\370\ 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

[[Page 53279]]

insurance whereas others do not. Additionally, DACA recipients could
hold entry-level jobs as well as more senior positions. 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 and recipient
compensation of $32.58.\371\
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\368\ Source: BLS, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, index averages
(Mar. 2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf.
\369\ 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 (last revised Nov. 9, 2021).
\370\ 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).
\371\ Calculation: $32.58 = ((($18,389.39 * 18%) + ($45,528.59 *
46%) + ($60,767.17 * 37%))/26)/80 * 1.45.
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(4) Time Burdens
Compared to the NPRM, this section contains no changes to the time
burdens. In the final rule, DHS did adjust the GSA 2021 travel rate per
mile for biometrics adjusted to 2020 values using BLS CPI. Calculating
any potential costs associated with this final 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. DHS estimates the time burden of completing for Form I-821D is 3
hours per request, including the time for reviewing instructions and
completing and submitting the form.\372\ Moreover, DHS estimates the
time burden of completing Form I-765 is 4.75 hours, including the time
for reviewing instructions, gathering the required documentation and
information, completing the application, preparing statements,
attaching necessary documentation, and submitting the application, and
the time burden of completing Form I-765WS is 0.5 hours, including the
time for reviewing instructions, gathering the required documentation
and information, completing the application, preparing statements,
attaching necessary documentation, and submitting the application.\373\
Additionally, DHS estimates the time burden of completing Form G-28 is
0.83 hours.\374\
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\372\ USCIS, Instructions for Consideration of Deferred Action
for Childhood Arrivals (Form I-821D), OMB No. 1615-0124 (expires
Mar. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-821dinstr.pdf.
\373\ Department of Homeland Security, USCIS, Instructions for
Application for Employment Authorization (Form I-765), OMB No. 1615-
0040, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf. Last accessed Aug. 12, 2022. On July 26, 2022, OMB
approved an emergency revision action (ICR# 202207-1615-004)
associated with the final rule titled Asylumworks Vacatur 1615-AC66.
This action will change the future Form I-765 time burden from 4.75
hours to 4.50 hours once USCIS releases new Form I-765 and form
instructions. This time burden change of 15 minutes was not a result
of the DACA rulemaking and/or its provisions. In our estimations, we
use the time burden of 4.75 as it is the most current Form I-765
time burden published by USCIS as of August 12, 2022.
\374\ USCIS, Instructions for Notice of Entry of Appearance as
Attorney or Accredited Representative (Form G-28), OMB No. 1615-
0105, https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf. Last accessed Aug. 12, 2022.
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In addition to the filing 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 their 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.\375\ Furthermore, DHS estimates that a requestor
waits an average of 70 minutes or 1.17 (rounded, 70 divided by 60
minutes) hours for service and to have their 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 (2.5
plus 1.17). 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 $27.00 per trip,\376\ based
on the 50-mile roundtrip distance to an ASC and the General Services
Administration's (GSA) travel rate of $0.54 per mile.\377\ DHS assumes
that each requestor travels independently to an ASC to submit their
biometrics.
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\375\ 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).
\376\ Calculation: 50 miles * $0.54 per mile = $27 per trip.
\377\ See the U.S. General Services Administration website at
https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived for
privately owned vehicle mileage reimbursement rates.
Also see BLS CPI information at https://www.bls.gov/cpi/tables/seasonal-adjustment/revised-seasonally-adjusted-indexes-2021.xlsx.
Calculation: GSA 2021 rate = $0.56 per mile; average 2021 CPI =
270.97, average 2020 CPI = 258.84. Rate per mile in 2020 dollars is
$0.56/((1 + ((270.97 - ;258.84)/258.84)) = $0.5349, rounded to
$0.54.
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(5) Costs of the Final Regulatory Action
The provisions of this final rule would not impose any new costs on
the potential DACA requestor population when requesting deferred action
through Form I-821D and an EAD through Form I-765 and Form I-765WS. The
final 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 Forms I-821D, I-765, and I-765WS. Therefore, relative
to the No Action Baseline, the final rule does not impose any new costs
on requestors.
(6) Benefits of the Final Regulatory Action
There are quantified and monetized benefits as well as unquantified
and qualitative benefits associated with the DACA policy under the
Napolitano Memorandum and this final rule. The quantified and monetized
benefits stem from the income earned by DACA recipients who participate
in the labor market. DHS recognizes that some recipients will not
participate in the labor market. For example, this category could
include DACA recipients who are currently enrolled in school, who
perhaps have scholarships or other types of financial 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.
To identify the proportion of the DACA recipients who might
participate in the labor market, DHS uses data from BLS on labor force
participation rates.\378\ 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
---------------------------------------------------------------------------

\378\ 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.

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[[Page 53280]]

section) to calculate an age group-adjusted weighted average. Based on
this methodology, DHS estimates that the average rate of the potential
DACA recipients who will participate in the labor market and work is 78
percent and the rate of those who might not is 22 percent.\379\ The 78
percent estimate is interpreted as an average estimate over the
analysis period meant to encapsulate any fluctuations due to labor
market dynamics. DHS recognizes that the estimated 78 percent
participation rate of potential DACA recipients does not directly
account for the potential additional benefits of an EAD beyond income
earnings. DHS describes these potential additional benefits in the
analysis below, regarding the benefits of the rule relative to the Pre-
Guidance Baseline.
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\379\ BLS labor force calculated averages by age group, United
States: 16 to 24 years old average is 53.6 percent (average of FY
2019 [55.9%] and FY 2029 [51.3%]); 25 to 34 years old average is
82.4 percent (average of FY 2019 [82.9%] and FY 2029 [81.9%]); and
35 to 44 years old average is 82.15 percent (average of FY 2019
[82.1%] and FY 2029 [82.2%]). Previously estimated USCIS age group
distribution of the active DACA-approved population: 16 to 24 years
old is 18 percent; 25 to 34 years old is 46 percent; and 35 to 44
years old is 37 percent. Calculations: Age group adjusted weighted
average is (53.6% * 18%) + (82.4% * 46%) + (82.15% * 37%) = 78.151%
= 78% (rounded) of the DACA recipient population who potentially
will participate in the labor market. Thus, it follows, (1-78.151%)
= 21.849% = 22% (rounded) of the DACA recipients who potentially
will opt out of the labor market.
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DHS calculates the quantified and monetized benefits associated
with this final 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 $67,769,
which is the previously estimated compensation rate of $32.58,
multiplied by 80 hours in a pay period, times 26 pay periods per year.
As previously discussed, DHS assumes that over the analysis period, on
average, 78 percent of DACA recipients will work, so the total
population projections presented previously are adjusted to reflect
this (population * 78 percent). Given the previously delineated
provisions of this final rule and the stated assumptions, there are no
new quantified and monetized benefits relative to the No Action
Baseline. In the No Action Baseline, the same average estimate of 78
percent of DACA recipients will work, which is the same percentage of
people estimated that would work under this final rule.
The unquantified and qualitative benefits of an approved DACA
request are discussed in significantly greater detail in the analysis
below, regarding the benefits of the rule relative to the Pre-Guidance
Baseline.
(7) Transfers of the Final Regulatory Changes
The provisions of this final rule will produce no transfers
relative to the No Action Baseline.
b. Pre-Guidance Baseline
The period of analysis for Pre-Guidance Baseline also includes the
period FY 2012-FY 2020, which includes the period during which DHS has
operated under the Napolitano Memorandum, to provide a more informed
picture of the total impact of the DACA policy. DHS proceeds by
considering the DACA population from this period (given by the
historical data of Table 8 and Table 10), but applying all the
assumptions as presented before (e.g., on wages and age distributions).
In essence, in this baseline, we assume the DACA policy never existed,
but instead of the period of analysis beginning in FY 2021, the Pre-
Guidance Baseline period of analysis is FY 2012-FY 2031, which allows
DHS to analyze the potential effects of the final 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 partial 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 9 and Table 11, while also
adding the historical population numbers presented in Table 8 and Table
10 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
as those presented for the No Action Baseline.
(3) Wage Assumptions
For the Pre-Guidance Baseline, the wage assumptions remain as
presented previously for the No Action Baseline with an overall average
compensation rate for the DACA requestors of $32.58 and an average
compensation rate for preparers of $103.81.
(4) Time Burdens
For the Pre-Guidance Baseline, all the time burdens remain as
presented previously for the No Action Baseline.
(5) Costs of the Final Regulatory Changes
The Pre-Guidance Baseline represents a world without DACA; that is,
all baseline impacts are $0. DHS calculates the final rule's impacts
relative to this baseline of $0 costs, benefits, and transfers. Given
the population estimates, form fees, time burdens, wage assumptions
(including preparers'), biometrics fee, travel costs, and biometrics
time burden information presented in Section III.A.4.a, DHS presents
the requestors' application costs for period FY 2012-FY 2031. The
estimated cost per average DACA request is $1,206.83.\380\ Multiplying
these per-request costs by the population estimates yields the total
estimated cost. The following table presents our quantified and
monetized cost estimates.
---------------------------------------------------------------------------

\380\ The average request cost equals Form I-821D average cost
plus Form I-765 average cost, that is $1,206.83 = $461.24 + $745.59.
Breaking this down, Form I-821D average cost = Preparer average cost
+ DACA requestor average cost + Biometrics cost. Preparer average
cost = ($103.81 (estimated compensation) * 3.83 hours (total time
burden) + $85 (fee)) * 0.44 (application preparer use rate) =
$212.34. DACA applicant average cost = ($32.58 (estimated
compensation) * 3 (time burden)) + $85) * (1-0.44) = $102.33.
Biometrics cost = ($32.58 * 3.67 hours (time burden)) + $27 (50
miles * $.54/mile) = $146.57. Average Form I-821D cost = $212.34 +
$102.33 + $146.57 = $461.24. Average Form I-765 cost = $420.20
(preparer average cost) + $325.39 (DACA requestor average cost) =
$745.59.
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The DACA policy also creates cost savings for DHS that are not
easily quantified and monetized. For instance, the DACA policy
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.'' \381\
---------------------------------------------------------------------------

\381\ See AADC, 525 U.S. at 484 n.8 (citing 16 Charles Gordon,
et al., Immigr. L. and Proc. Sec. 242.1 (1998)).
---------------------------------------------------------------------------

(6) Benefits of the Final Regulatory Changes
There are potential quantified and monetized benefits and
unquantified and qualitative benefits associated with this final rule.
The quantified and monetized benefits stem from the income earned by
DACA recipients who have 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 policy. For this segment of the
DACA-recipient population, DHS would 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

[[Page 53282]]

in the informal labor market and the compensation estimates presented
in this analysis, multiplied by the estimate of this population.\382\
---------------------------------------------------------------------------

\382\ 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
could be, on average, 4 percent to 6 percent higher than the wage of an
individual working as an undocumented noncitizen. This phenomenon also
is discussed in a recently published report on the economic benefits of
unauthorized immigrants gaining permanent legal status, which points
out that per-hour income differentials exist when comparing
unauthorized immigrant workers to citizen and legal immigrant
workers.\383\ In contrast, in a survey of 1,157 DACA recipients, Wong
(2020) finds that respondents age 25 and older (n=882) reported wage
increases of 129 percent ($27.17/$11.89 = 2.285) since receiving
DACA.\384\ Such an adjustment would yield a more accurate estimate of
the quantified benefits attributable to the receipt of work
authorization under DACA.\385\ DHS received public comments on the
topic of wage differentials specifically mentioning that, for
undocumented women, wage differentials could be even higher. However,
no comments made suggestions about whether DHS should adjust the
benefit estimates to account for possible wage differentials, or how to
adjust these estimates. Therefore, DHS made no adjustments in this
final rule RIA.
---------------------------------------------------------------------------

\383\ 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.
\384\ See Wong (2020). DHS notes that the intervening years of
experience could explain some of this growth rate.
\385\ Borjas and Cassidy (2019) and Wong (2020) suggest that the
additional earnings from wages presented in this final 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 final rule.
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In addition, DHS considered an additional modification to the
estimated benefits 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 could 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. DHS notes that for many workers, paid work
can also provide subjective value that exceeds and is not adequately
captured by wages; we bracket that possibility here.
Because nonpaid time still has value, a more accurate estimate of
the net benefits of receiving work authorization under the final 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-
based work authorization, it is difficult to estimate the value of that
time. DHS requested public comment on how to best value the non-paid
time of those who were not part of the authorized workforce without
DACA, but did not receive any suggestions as to whether DHS should
adjust the estimated benefits to possibly account for leisure or non-
paid activities, nor how to adjust the estimated benefits. For this
reason, and based on approaches from previous DHS rules,\386\ DHS
estimated that a reasonable proxy of the value of one hour of non-paid
time is equal to the federal minimum wage, adjusted for benefits and in
2020 dollars, at $10.05.\387\ For an annual value, as before, DHS takes
the hourly rate (including benefits), $10.05, and multiplies it by 80
hours in a pay period and further multiplies by 26 pay periods, which
yields an annual value for non-paid time of $20,904.
---------------------------------------------------------------------------

\386\ For example, in prior rules, the DHS position was that the
value of time for those not authorized to be in the workforce still
has a positive value. DHS valued this time as the minimum wage of
$7.25 * a benefits multiplier of approximately 1.45. See Employment
Authorization for Certain H-4 Dependent Spouses, 80 FR 10283 (Feb.
25, 2015), and International Entrepreneur Rule, 82 FR 5238 (Jan. 17,
2017).
\387\ Federal minimum wage equals $7.25. Benefits multiplier
from before = 1.45. Average annual 2021 CPI = 270.970; 2020 CPI =
258.811. Value of non-paid time = (7.25/(270.970/258.811)) * 1.45 =
$10.05 (rounded).
---------------------------------------------------------------------------

For total yearly income earnings calculations, DHS uses the
previously estimated average annual compensation of DACA EAD recipients
of $67,768.79 multiplied by 78 percent of the active population data in
Table 9 and the active population estimates in Table 11. DHS estimated
78 percent of DACA recipients will choose to participate in the labor
market, potentially earning income. This earned income is presented
here as part of the quantified and monetized benefit of this final rule
because of recipients having an EAD and working. The benefit (from
earned income) per working DACA recipient is adjusted by subtracting
the portion that is a transfer from working recipients to the Federal
Government, which ends up being $62,584.47 ($67,768.79 * (1-0.0765)).
These calculations assume that DACA workers were not substituted for
other already employed workers, and that all workers looking for work
can find employment in the labor market. As stated in the NPRM and
discussed below in Section III.A.4.d, DHS cannot predict the degree to
which DACA recipients are substituted for other workers in the U.S.
economy since this depends on many factors. Multiplying this per-
recipient benefit (income earnings) by the population projections
presented earlier in Table 9 and Table 11 yields the results in column
A in Table 13.\388\ Similarly, using the 78 percent rate applied to the
active DACA populations in Tables 9 and 11 yields the results in column
B in Table 13. Subtracting the two columns, A-B, yields our quantified
and monetized net benefits presented in column C of Table 13.
---------------------------------------------------------------------------

\388\ 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 13 by
[1/(1-0.0765)] yields the pre-tax overall total potential income
earned. The section below on Transfers discusses more details on the
calculations and transfer estimates.
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DHS notes that to whatever extent a DACA recipient's wages
otherwise would be earned by another worker, the income earnings and
therefore net benefits in Table 13 would be overstated (see Labor
Market Impacts section 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 final rule would enjoy
additional benefits relative to the Pre-Guidance Baseline. DHS
describes these next along with any other qualitative impacts of this
final rule relative to the Pre-Guidance Baseline.
Some of the benefits associated with the DACA policy 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.\389\
---------------------------------------------------------------------------

\389\ 76 FR 3821 (Jan. 21, 2011).

DHS emphasizes that the goals of this regulation include protection
of equity, human dignity, and fairness, and the Department 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 final rule, 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

[[Page 53284]]

who meet the relevant criteria and are deemed, on a case-by-case basis,
to warrant a favorable exercise of discretion. 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,\390\ (2) an
increased sense of acceptance and 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.\391\ One might attempt 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.
---------------------------------------------------------------------------

\390\ Giuntella (2021).
\391\ 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 be approved for
discretionary advance parole, which permits them to seek parole into
the United States upon their return from travel outside the United
States.\392\ 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 sponsorship) may satisfy the ``inspected
and admitted or paroled'' requirement of the adjustment of status
statute at 8 U.S.C. 1255(a) after being paroled into the United States
upon their return. 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.
---------------------------------------------------------------------------

\392\ 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 provides 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 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. Like the discussion on the
benefits that are derived from being granted deferred action, DHS is
unable to fully quantify and monetize the benefits from having official
personal identification or a driver's license for individuals in the
DACA population.
DHS requested and received public comments on the additional
benefits from forbearance and employment authorization beyond the
estimated potential labor market earnings of the approved DACA
population. A commenter offered some valuable insights as to how to
potentially estimate or proxy for some of these additional benefits.
For example, the commenter suggested looking at the average treatment
costs for anxiety disorders and anxiety reducing services such as
anxiety app downloads and purchases as a proxy for the value that
people might place on the reduction of fear and anxiety. Further, the
commenter suggested looking into the financial and education
investments people make as a possible proxy for the value people might
place on community belongingness; U.S. data on the average amount of
spending for international travel as a possible proxy for the value of
advance parole to the DACA recipient population; and the cost of driver
licenses as a possible proxy for the value of an EAD beyond the labor
market benefits. These are all instructive starting points or proxies
for estimation of perhaps lower bound. At the same time, and as
explained in that analysis, DHS continues to believe that such starting
points and proxies do not permit a full and accurate valuation of these
benefits to this population. DHS continues to believe that these
unquantifiable benefits are of great positive value and that attempts
at fully monetizing them raise serious conceptual, normative, and
empirical challenges. It is nonetheless the position of DHS that
consistent with E.O. 13563, considerations of human dignity are some of
the main drivers of this rule, which is focused on fortifying and
preserving a policy for a vulnerable population in the United States
since 2012, and on protecting a range of reliance interests.
Finally, as discussed above, this 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 receipt of certain Social Security
benefits consistent with 8 U.S.C. 1611(b)(2). The final 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 benefits and the
various ways in which accrual of unlawful presence might ultimately
affect an individual based on their immigration history.
(7) Transfers of the Final Regulatory Changes
Relative to the Pre-Guidance Baseline, the final rule could yield
tax transfers to different levels of government, assuming that DACA
recipients with an EAD who are employed are not substituting their
labor for the labor of workers already employed in the economy, and
that all workers looking for work can find employment in the labor
market. DHS makes this assumption for the purposes of this analysis
only.\393\ 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 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,

[[Page 53285]]

respectively).\394\ 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-tax income earnings) benefits,\395\
which yields our transfer estimates for this section. Table 14 presents
these estimates.
---------------------------------------------------------------------------

\393\ The assumption is based on Section III.4.d, Labor Market
Impacts, which summarizes the research of isolating immigration
effects on labor markets and discusses the relative impact of DACA
recipients entering the work force.
\394\ Internal Revenue Service, Topic No. 751 Social Security
and Medicare Withholding Rates, https://www.irs.gov/taxtopics/tc751
(last updated May 20, 2022).
\395\ The estimated benefit (from pre-tax income earnings) per
applicant is $67,768.79. Multiplying this benefit per applicant by
the population projections presented earlier in Table 9 and Table 11
adjusted (or multiplied) by the labor force participation rate of
78% yields total pre-tax earnings (for example FY 2012 calculation:
$67,768.79 * 2,019 * 0.78 = $106,723,639.90). Multiplying the 15.3%
payroll tax rate to this pre-tax total yields the Table 14 estimates
(e.g., FY 2012 = 106,723,639.90 * 0.153 = $16,328,716.91 or
$16,328,717 rounded).
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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

[[Page 53286]]

certain applicants and petitioners.\396\ 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. For this final rule, DHS considered
other application and fee structures as well as public input on this
topic and decided to re-classify, as proposed in the NPRM, the $85
biometrics fee as an $85 Form I-821D filing fee, and maintain the
current framework requiring all DACA requestors to file both Form I-
821D and Form I-765, for a total fee of $495 after biometrics services.
These fees will allow DHS to recover the Government's costs of
processing these forms in line with USCIS' standard fee-funded
operating structure. As part of the biennial fee review and subsequent
fee setting process, DHS plans to propose new USCIS fees in a separate
rulemaking after evaluating the resource requirements for Form I-765
and other immigration benefit requests.\397\ The fee for Form I-765 may
need to be adjusted in the process because it has not changed since
2016.\398\
---------------------------------------------------------------------------

\396\ See INA sec. 286(m), 8 U.S.C. 1356(m).
\397\ See 87 FR 5241 (Jan. 31, 2022).
\398\ See 81 FR 73292 (Oct. 24, 2016).
---------------------------------------------------------------------------

d. Labor Market Impacts
The projected active DACA population in the No Action Baseline
section of the analysis suggests that about 18,263 new participants
\399\ could enter the U.S. labor force in the first year of
implementation of the final rule as compared to the number of DACA
recipients in the labor market in FY 2020 (based on the 78 percent
labor force participation rate presented earlier). This number
increases annually at a growth rate of 3.6174 percent, reaching up to
26,056 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.\400\ The aforementioned estimate of 18,263 new potential
active DACA participants in the U.S. labor force in FY 2021 would
represent approximately 0.0114 percent of the 2020 overall U.S.
civilian labor force.\401\ These figures could represent an
overestimate, insofar as some individuals otherwise might choose to be
engaged in informal employment.
---------------------------------------------------------------------------

\399\ Calculation: (FY 2021 projected active DACA population--FY
2020 projected active DACA population) * 0.78 = (670,693--647,278) =
23,415 * 0.78 = 18,263.
\400\ 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.
\401\ Calculation: (18,263/160,742,000) * 100 = 0.0114%.
---------------------------------------------------------------------------

The top four States where current DACA recipients reside represent
about 55 percent of the total DACA-approved population: California (29
percent), Texas (16 percent), Illinois (5 percent), and New York (4
percent).\402\ These States may have a slightly larger share of
potential 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 5,296 (i.e.,
29% * 18,263) additional workers in the first year of implementation;
Texas 2,922 additional workers; Illinois 913 additional workers; and
New York 731 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.\403\ As an example, the
additional 5,296 workers who could be added to the Californian labor
force in the first year after promulgation of this final rule would
represent about 0.0280 percent of the overall California labor
force.\404\ The potential impacts to the other States would be lower.
For Texas, the impact would be about 0.0208 percent; for Illinois,
0.0149 percent; and for New York, 0.0077 percent.
---------------------------------------------------------------------------

\402\ 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).
\403\ 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.
\404\ Calculation: (5,296/18,895,158) * 100 = 0.0280%.
---------------------------------------------------------------------------

As noted above, the analysis of the final rule relative to the Pre-
Guidance Baseline entails consideration of effects going back to FY
2012, when the policy was introduced and the surge of new requestors
occurred. Because the Napolitano Memorandum was issued in June of 2012,
the FY 2012 September 30th count of 2,019 active DACA participants does
not cover a full fiscal year; therefore, DHS adds FY 2012 and FY 2013
together, adjusting by the 78 percent labor market participation rate,
for a count of new active DACA entrants in the U.S. labor market equal
to 370,421. 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 potential active DACA entrants would represent
about 0.2384 percent of the 2013 overall US. civilian labor force of
155,389,000.\405\ As discussed in the preceding paragraph, for
California, the new active DACA entrant population in FY 2012 and FY
2013 would represent about 0.5685 percent of California's April 2021
labor force, 0.4223 percent of Texas's, 0.3013 percent of Illinois's,
and 0.1599 percent of New York's. These figures could represent an
overestimate, insofar as some individuals otherwise might choose to be
engaged in informal employment.
---------------------------------------------------------------------------

\405\ 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. DHS
expects the number of DACA recipients in the labor force to increase in
future years within the period of analysis because, as indicated in
Table 9, 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 746,353, or 0.4643 percent of
the 2020 U.S. civilian labor force.\406\
---------------------------------------------------------------------------

\406\ Calculation: (746,353/160,742,000) * 100 = 0.4643%.
---------------------------------------------------------------------------

Although the estimated annual increases in the active DACA
population in this final 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 growing
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 aide occupations will grow
by about 34 percent over the next 10 years, cooks in restaurants by
about

[[Page 53287]]

23 percent, and software development occupations by about 22
percent.\407\ In growing industries or sectors such as these, holding
everything else constant, increases in the labor supply might not be
enough to temporarily satisfy labor demand. As a result, employers
might offer higher wages to attract qualified workers. The opposite
could happen for industries or sectors where labor supply is greater
than labor demand due to these industries not growing and/or too many
workers entering theses industry relative to labor demand. DHS also
notes the possibility of positive dynamic effects from employing DACA
recipients; hiring DACA recipients might permit businesses to grow and
thus have positive, rather than negative, effects of other workers,
including U.S. citizens. 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.\408\ Current and potential DACA recipients have shown,
over the course of years, that they would remain in the United States
even without deferred action or employment authorization. However,
undocumented noncitizens looking for work without authorization may be
easily exploited, and employers may pay substandard wages, which in
turn potentially depresses wages for some U.S. workers. By reducing
this possibility, the policy may help to protect U.S. workers and
employers against the possible effects of unauthorized labor.
---------------------------------------------------------------------------

\407\ 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.
\408\ 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 (NAS) publication synthesizes the current
peer-reviewed literature on the effects of immigration and empirical
findings from various publications.\409\ Notably, the 2017 NAS Report
addresses a different subject than this final 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.
---------------------------------------------------------------------------

\409\ See supra n.56.
---------------------------------------------------------------------------

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.\410\
---------------------------------------------------------------------------

\410\ Id. at 4.

Whether immigrants are low-skilled or high-skilled workers can
matter with respect to effects on wages and the labor market
generally.\411\ 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 citizens.\412\ In
addition:
---------------------------------------------------------------------------

\411\ Id. at 4.
\412\ 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.\413\
---------------------------------------------------------------------------

\413\ 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.\414\
---------------------------------------------------------------------------

\414\ 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.\415\
---------------------------------------------------------------------------

\415\ 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.\416\
---------------------------------------------------------------------------

\416\ 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
citizen population overall was ``very small.'' \417\ 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, although DACA recipients must at least be enrolled in school or
be an honorably discharged veteran. Therefore, one could expect the
DACA population to have similar economic impacts as the overall
immigrant population, relative to the Pre-Guidance Baseline.
---------------------------------------------------------------------------

\417\ Id. at 5.
---------------------------------------------------------------------------

The 2017 NAS Report also discusses the economic impacts of
immigration and considers effects beyond labor market impacts. Similar
to citizens, 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 citizen and noncitizen populations.\418\ DHS
sought and received public comments on these issues, which it discusses
in detail in Sections II.A.4, II.A.5, and II.A.6 of this rule.
---------------------------------------------------------------------------

\418\ Id. at 6-7.

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

[[Page 53288]]

e. Fiscal Effects on State and Local Governments
In this section, in consideration of the Texas court's discussion
of fiscal effects (as described in the next section of this RIA), DHS
briefly addresses the final rule's potential fiscal effects on State
and local governments. It would be extremely challenging to measure the
overall fiscal effects of this final 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 final 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 final 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.\419\
---------------------------------------------------------------------------

\419\ Id. at 28.

In addition, second-order effects also clearly occur; analysis of
such effects also presents methodological and empirical
challenges.\420\
---------------------------------------------------------------------------

\420\ Id. at 342.
---------------------------------------------------------------------------

For example, as with the citizen population, the age structure of
immigrants plays a major role in assessing any fiscal impacts. Children
and young adults contribute less to 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
citizen 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.\421\
---------------------------------------------------------------------------

\421\ 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.\422\
---------------------------------------------------------------------------

\422\ 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 final 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.\423\ For example, some
States may allow DACA recipients to apply for subsidized driver's
licenses or allow DACA recipients to qualify for in-state tuition at
public universities, which may not be available to similarly situated
individuals without deferred action. These costs to the State will
depend on choices made by States and will be location specific and are,
therefore, difficult to quantify let alone predict.
---------------------------------------------------------------------------

\423\ DHS notes that DACA recipients are not considered
``qualified aliens.'' See 8 U.S.C. 1641(b). As noted elsewhere in
the 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 final rule suggest that any burden on State and local fiscal
resources imposed by the final rule is unlikely to be significant, and
the rule may well have a positive net effect. 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
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.\424\ Under the final 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, this rule could have the
effect of increasing tax revenues, with uncertain outcomes on the
reliance on safety net programs, as effects on specific programs may
vary based on a range of factors including eligibility criteria that
may exclude DACA recipients.
---------------------------------------------------------------------------

\424\ 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

[[Page 53289]]

evolving conditions of their respective populations.
In short, DHS acknowledges that though the final rule may 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 sought and received public
comments on these issues, which it discusses in detail in Section
II.A.5.
f. Reliance Interests and Other Regulatory Effects
In the Texas 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,\425\
although the court noted that many of these considerations were matters
raised by parties and amici in the course of Texas (2015) and Texas
(2021), 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.''
\426\ DHS has assessed the considerations presented by the district
court and sought public comment on these and any other potential
reliance interests. DHS discusses the reliance interests raised by
commenters, including from States, in Section II.A, and it presents its
views in this section as relevant to this analysis.\427\
---------------------------------------------------------------------------

\425\ 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.''
549 F. Supp. 3d at 622. DHS has addressed this issue in the
Regulatory Alternatives section below.
\426\ 549 F. Supp. 3d at 623-24.
\427\ 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 is required to consider the various
considerations raised by the district court, with respect to this
final rule or any other final rule.
---------------------------------------------------------------------------

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.\428\
---------------------------------------------------------------------------

\428\ 549 F. Supp. 3d at 622.

In developing this final 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, in-state tuition, State-funded healthcare benefits,
and professional licenses.\429\
---------------------------------------------------------------------------

\429\ 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);
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, as discussed in detail in the
NPRM, that the executive branch has long exercised, even prior to 2012,
various forms of enforcement discretion with features similar to
DACA.\430\ DHS is aware of such interests and has taken them into
account, as discussed in Section II.A.5. However, DHS does not believe
they are sufficient to outweigh the many considerations, outlined above
and in Section II.A.5, that support the final rule.
---------------------------------------------------------------------------

\430\ See 86 FR 53746-53749.
---------------------------------------------------------------------------

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 policies 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 \431\); and
---------------------------------------------------------------------------

\431\ See 140 S. Ct. at 1916 (Justice Sotomayor's opinion,
dissenting in part and noting that she would have permitted
respondents to develop their equal protection claims against DACA's
rescission on remand).
---------------------------------------------------------------------------

6. the costs DACA imposes on the States and their respective
communities.\432\
---------------------------------------------------------------------------

\432\ 549 F. Supp. 3d at 622-23.

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.\433\
---------------------------------------------------------------------------

\433\ Id. at 623.

DHS sought comment on these reliance interests and discusses them
in detail in Section II.A.7 (as to effect on migration and the border),
Section II.A.4 (as to effect on other populations, including U.S.
workers), and Section II.A.5 (as to effects on communities and States).
In those sections, and in this RIA specifically, DHS has addressed
several of these issues relative to both baselines.
With respect to item (1), the benefits bestowed by DACA recipients
on this country and the communities where they reside are numerous, as
discussed in detail in the preamble and 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 discussed in greater detail elsewhere
in the final rule, available data supports DHS's determination that
DACA does not act as a significant material ``pull factor'' (in light
of the wide range of factors that contribute to both lawful and
unlawful

[[Page 53290]]

immigration into the United States).\434\ The final rule codifies
without material change the threshold criteria that have been in place
for a decade, further reinforcing DHS's clear policy and messaging
since 2012 that DACA is not available to individuals who have recently
entered the United States, and that border security remains a high
priority for the Department.\435\ Because the final rule codifies
criteria in place for a decade and does not expand consideration of
deferred action under DACA to new populations, nor would it increase
irregular migration as explained elsewhere in this rule, DHS does not
believe it necessary to address items (7) and (8) above.
---------------------------------------------------------------------------

\434\ See, e.g., Amuedo-Dorantes and Puttitanun (2016) (``DACA
does not appear to have a significant impact on the observed
increase in unaccompanied alien children in 2012 and 2013.'').
\435\ For example, DHS continues to invest in new CBP personnel,
including hiring more than 100 additional U.S. Border Patrol (USBP)
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.
---------------------------------------------------------------------------

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 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 a
scenario where EADs are terminated and DACA recipients lose their labor
market compensation, the estimated monetized benefits in the Pre-
Guidance Baseline, 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 discussed in greater detail throughout the final rule,
prioritization and discretion are necessary strategies to fulfill the
DHS mission, and the use of deferred action for this purpose is
consistent with decades of practice of DHS and the former INS.
With respect to item (5), DHS does not believe that the DACA policy
as embodied in this final rule would violate the equal protection
component of the Fifth Amendment's Due Process Clause. The rule
preserves and fortifies DACA as opposed to rescinding it. Thus, Justice
Sotomayor's equal protection concerns over rescission are not
implicated. The rule also continues the longstanding practice of
treating DACA recipients the same as other recipients of deferred
action in that all such recipients are subject to forbearance from
removal while they have deferred action, may obtain discretionary
employment authorization based on economic need, may obtain advance
parole to travel, continue to be deemed ``lawfully present'' for
purposes of receiving certain Social Security benefits identified in 8
CFR 1.3(a)(iv), and do not accrue unlawful presence for purposes of INA
sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). Therefore, DHS cannot
discern a basis for any equal protection claims, much less whether they
would have any legal merit.
With respect to item (6), DHS addresses the issue in Section
III.A.4.e above. In short, although such an analysis is challenging for
a variety of reasons, multiple aspects of this rule suggest that it 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.
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.'' \436\ DHS
agrees on the importance of evidence and data and has addressed the
resource implications of DACA throughout the final rule, including at
Sections II.C and III.A.4.b.(5).
---------------------------------------------------------------------------

\436\ 549 F. Supp. 3d at 623.
---------------------------------------------------------------------------

g. Discounted Direct Costs, Cost Savings, Transfers, and Benefits of
the Final Regulatory Changes
The quantified impact categories are direct costs, benefits, and
transfers. The drivers of quantified direct costs stem from the
opportunity cost of time associated with requesting deferred action and
work authorization under the DACA policy by the requestor population,
application fees for Forms I-821D and I-765, and biometrics travel
costs. The drivers of quantified direct benefits stem from the total
compensation received by those DACA recipients that are employed due to
the EAD granted through the DACA policy less the value of non-paid
time. The drivers of quantified direct transfers stem from the federal
taxes (Social Security and Medicare) paid by the employed DACA
recipients.
To compare costs over time, DHS applied a 3 percent and a 7 percent
discount rate to the total estimated costs, transfers, and benefits
associated with the final rule. Relative to the No Action Baseline,
there are no new quantified and monetized costs, benefits, and
transfers associated with this final rule. The following tables present
the costs, benefits, and transfers relative to the Pre-Guidance
Baseline. Table 15 presents a summary of the potential costs relative
to the Pre-Guidance Baseline in undiscounted dollars and discounted at
3 percent and 7 percent.
BILLING CODE 9111-97-P

[[Page 53291]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.030

Table 16 presents a summary of the potential net benefits relative
to the Pre-Guidance Baseline in undiscounted dollars and discounted at
3 percent and 7 percent.

[[Page 53292]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.031

Table 17 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.

[[Page 53293]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.032

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, 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 final rule, including alternatives
related to a policy of forbearance from removal without employment
authorization or the benefits associated with so-called lawful
presence. As discussed in detail in Section II.B, the authority to
forbear from removal is an undisputed feature of DHS's enforcement
discretion, whereas the district court in Texas held that DHS lacked
authority to provide employment authorization and benefits such as
Social Security benefits to DACA recipients.\437\
---------------------------------------------------------------------------

\437\ As the court stated in Texas 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.'' 549 F. Supp. 3d at 620-21.
---------------------------------------------------------------------------

The analysis of this forbearance-only alternative is in a sense
relatively straightforward. Like the final 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 final 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 extent, although a forbearance-only approach would still have
value, such an alternative would have substantially lower net benefits,
consistent with the numbers discussed above.
For instance, as discussed in Section II.C.2.a, 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, schools, 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. Any change that eliminates
employment authorization for the DACA population, whether a
forbearance-only policy or a wholesale termination of the DACA policy,
would result in hundreds of thousands of prime-working-age people
remaining in the United States while lacking authorization to work
lawfully 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.
Nonetheless, as explained elsewhere in this preamble, DHS believes that
if a

[[Page 53294]]

court finds certain provisions of this rule to be contrary to law, it
is preferable to sever and strike only those provisions found unlawful
while retaining the remaining provisions. Doing so has significant
disadvantages relative to retaining the entire policy, but the
remaining provisions will remain workable and are preferable to a
regime in which none of the provisions operate at all.
A possible alternative to the policy in the final 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 carefully considered
this alternative and sought public 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 not a
universal concept but rather is a term of art, referring to eligibility
for certain limited Social Security, Medicare, and Railroad Retirement
benefits, or the lack of accrual of unlawful presence for purposes of
determining inadmissibility under INA sec. 212(a)(9), 8 U.S.C.
1182(a)(9). It could not and does not mean ``lawful status.'' But DHS
believes that this alternative approach also may be inferior, 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.
As discussed in greater detail in this rule, DHS also has carefully
considered comments related to DHS's authority to confer work
authorization and whether the Department should codify a forbearance-
only alternative in this rule. The majority of commenters who discussed
work authorization supported DHS's proposal that the final rule
maintain DACA requestors' ability to request employment authorization,
and provided persuasive reasoning for rejecting a forbearance-only
alternative, including the substantial reliance interests of DACA
requestors, their families, employers, schools, and broader communities
in their ability to engage in lawful employment and receive a
government-issued ID in the form of an EAD. Upon careful consideration
of data available and public comments received, DHS has determined that
policy and reliance interests weigh strongly in favor of maintaining
forbearance and work authorization in promulgating this rule.
Finally, consistent with the Texas 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 final
rule only to existing DACA recipients. Existing DACA recipients have
clearer reliance interests in the continuation of DACA than do
prospective requestors who have yet to request DACA. On the other hand,
the benefits of the policy are equally applicable to those who have yet
to request DACA, and some who might have benefited under the Napolitano
Memorandum but have yet to ``age in'' to eligibility to request DACA,
given the limitations on initial requests in recent years due to
litigation. DHS has determined that restricting the ability to request
consideration for DACA to existing recipients would not be desirable or
maximize net benefits.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA),\438\ as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA),\439\ 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.\440\
---------------------------------------------------------------------------

\438\ 5 U.S.C. ch. 6.
\439\ Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 601
note).
\440\ 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).
---------------------------------------------------------------------------

This final 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 final rule regulates individuals, and individuals are not defined
as ``small entities'' by the RFA.\441\ Based on the evidence presented
in this analysis and throughout this preamble, DHS certifies that this
final rule would not have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------

\441\ 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. The inflation-
adjusted value of $100 million in 1995 is approximately $177.8 million
in 2021 based on the CPI-U.\442\
---------------------------------------------------------------------------

\442\ See BLS, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month (Dec.
2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.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 (2021); (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 2021-
Average monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] *
100 = [(270.970-152.383)/152.383] * 100 = (118.587/152.383) * 100 =
0.7782 * 100 = 77.82 percent = 77.8 percent (rounded).
Calculation of inflation-adjusted value: $100 million in 1995
dollars * 1.778 = $177.8 million in 2021 dollars.
---------------------------------------------------------------------------

The term ``Federal mandate'' means a Federal intergovernmental
mandate or a Federal private sector mandate.\443\ The term ``Federal
intergovernmental mandate'' means, in relevant part, a provision that
would impose an enforceable duty upon State, local, or Tribal
governments (including as a condition of Federal assistance or a duty
arising from participation in a voluntary Federal program).\444\ The
term ``Federal private sector mandate'' means, in relevant part, a
provision that would impose an enforceable duty upon the private sector
(except as a condition of Federal assistance or a duty arising from
participation in a voluntary Federal program).\445\
---------------------------------------------------------------------------

\443\ See 2 U.S.C. 1502(1), 658(6).
\444\ 2 U.S.C. 658(5), 1555.
\445\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------

This final 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.

[[Page 53295]]

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.\446\ 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. While DHS welcomed public comment in the proposed rule about
the UMRA with regard to this analysis, it did not receive any comments.
---------------------------------------------------------------------------

\446\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act of 1996

OIRA has designated this final rule as a major rule as defined by
section 804 of SBREFA.\447\ Accordingly, this final rule will be
effective no earlier than 60 days after the date on which this Rule is
published in the Federal Register as required by 5 U.S.C. 801(a)(3).
---------------------------------------------------------------------------

\447\ See 5 U.S.C. 804(2).
---------------------------------------------------------------------------

E. Executive Order 13132: Federalism

This final 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 final 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 rule was drafted and reviewed in accordance with E.O. 12988,
Civil Justice Reform. This 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 rule
meets the applicable standards provided in section 3 of E.O. 12988.

G. Paperwork Reduction Act--Collection of Information

Under the PRA,\448\ all Departments are required to submit to OMB,
for review and approval, any reporting or recordkeeping requirements
inherent in a rule. In compliance with the PRA, DHS published a notice
of proposed rulemaking on September 28, 2021, in which comments on the
revisions to the information collections associated with this
rulemaking were requested for a period of 60 days. DHS responded to
those comments in Section II of this final rule. Table 18, Information
Collections, below lists the information collections that are part of
this rulemaking. In this final rule, DHS invites written comments and
recommendations for the proposed information collection within 30 days
of publication of this notice to https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function.
---------------------------------------------------------------------------

\448\ Public Law 104-13, 109 Stat. 163.
[GRAPHIC] [TIFF OMITTED] TR30AU22.033

This final rule requires non-substantive edits to the form listed
above where the Type of PRA Action column states, ``No material change/
Non-substantive change to a currently approved collection.'' USCIS has
submitted a Paperwork Reduction Act Change Worksheet, Form OMB 83-C,
and amended information collection instruments to OMB for review and
approval in accordance with the PRA.
USCIS Form I-821D
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.

[[Page 53296]]

(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
whether certain noncitizens who entered the United States as minors
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 (paper) information collection is 221,167, and
the estimated hour burden per response is 3 hours; the estimated total
number of respondents for the I-821D renewal requests (electronic)
information collection is 55,292, and the estimated hour burden per
response is 2.5 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 1,593,287 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; I-765WS
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
2,178,820 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 107,180 annually, and the estimated
hour burden per response is 4 hours; the estimated total number of
respondents for the I-765WS information collection is 302,000 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 2,286,000 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 11,881,376 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 $400,895,820.

H. Family Assessment

DHS has reviewed this rule in line with the requirements of section
654 of the Treasury and General Government Appropriations Act,
1999,\449\ enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999.\450\ DHS has systematically
reviewed the criteria specified in section 654(c)(1) of that act, by
evaluating whether this 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 regulation may negatively affect family well-being, then
the agency must provide an adequate rationale for its implementation.
---------------------------------------------------------------------------

\449\ See 5 U.S.C. 601 note.
\450\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

DHS has determined that the implementation of this rule will not
negatively affect family well-being, but rather will strengthen it.
This regulation creates a positive effect on the family by helping
certain mixed-status 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.\451\ DACA provides recipients with U.S.
citizen children a greater sense of security, which is important for
families' overall well-being and success. It also makes recipients
eligible for employment authorization and motivates DACA recipients to
continue their education, graduate from high school, pursue post-
secondary and advanced degrees, and seek additional vocational
training, which ultimately provides greater opportunities, financial
stability, and disposable income for themselves and their
families.\452\ DHS received comments on the family assessment. Those
comments are discussed earlier in the preamble.
---------------------------------------------------------------------------

\451\ Svajlenka and Wolgin (2020).
\452\ Gonzales (2019); Wong (2020).
---------------------------------------------------------------------------

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

This 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 rule does not
have Tribal implications that require Tribal consultation under E.O.
13175.

[[Page 53297]]

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 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. The
Instruction Manual establishes categorical exclusions that DHS has
found to have no such effect. 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 extraordinary
circumstances exist that create the potential for a significant
environmental effect.
As discussed earlier in this preamble, DHS does not believe the
rule triggers NEPA obligations in the first instance because it simply
codifies existing policy toward a population already in the United
States and thus does not alter the environmental status quo. As
discussed above, many DACA recipients have lived in the United States
for nearly their entire lives and are unlikely to voluntarily leave.
And because DACA recipients would be at very low priority for removal
even absent DACA, it is very unlikely that DACA recipients would be
involuntarily removed. That said, DHS continues to believe that
speculating about the difference in the population effects between the
existing DACA policy and the DACA rule--or between existing DACA policy
and no DACA--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 does apply to this action, the action would
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. This
rulemaking implements, without material change, the 2012 DACA policy
addressing exercise of enforcement discretion with respect to a
specifically defined population of noncitizens and is not part of a
larger DHS action. 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. DHS considered the potential environmental impacts of this
rule with respect to an existing population that has been present in
the United States since at least 2007 and determined, in accordance
with the Instruction Manual, that this rule does not present
extraordinary circumstances that would preclude application of a
categorical exclusion. This rule, therefore, satisfies the requirements
for application of categorical exclusion A3(c) in accordance with the
Department's approved NEPA procedures.

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

This 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.

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 amends 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; 48 U.S.C. 1806; Pub. L. 115-218; Pub. L. 116-159.

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
subpart 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

[[Page 53298]]

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 reenter 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, USCIS may grant employment authorization pursuant to 8 CFR
274a.13 and 274a.12(c)(33) to DACA recipients who have demonstrated an
economic need.
(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.
(d) This subpart rescinds and replaces the DACA guidance set forth
in the Memorandum issued by the Secretary of Homeland Security on June
15, 2012. All current grants of deferred action and any ancillary
features previously issued pursuant to the Memorandum remain in effect
and will expire according to their existing terms. All such current
grants of deferred action and any ancillary features, as well as any
requests for renewals of those grants and new requests, are hereafter
governed by this subpart and not the Memorandum.

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 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 requestor 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. 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, public safety, and national security. 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 this paragraph
(b)(6) only, expunged convictions, juvenile delinquency adjudications,
and convictions under State (including U.S. territory) laws for
immigration-related offenses are not considered disqualifying
convictions. For purposes of this paragraph (b)(6) 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.

[[Page 53299]]

(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 must
also contain a request for employment authorization filed pursuant to 8
CFR 274a.12(c)(33) and 274a.13.
(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.
(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. Related work authorization granted pursuant to 8 CFR
274a.12(c)(33), if approved in DHS's discretion, will be issued,
subject to DHS's discretion, for the period of the associated grant of
Deferred Action for Childhood Arrivals.
(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 USCIS
determines that 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. USCIS will provide a Notice of Intent to Terminate and an
opportunity to respond prior to terminating a grant of Deferred Action
for Childhood Arrivals, except USCIS may terminate a grant of Deferred
Action for Childhood Arrivals without a Notice of Intent to Terminate
and an opportunity to respond if the Deferred Action for Childhood
Arrivals recipient is convicted of a national security-related offense
involving conduct described in 8 U.S.C. 1182(a)(3)(B)(iii), (iv), or
1227(a)(4)(A)(i), or an egregious public safety offense. If USCIS
terminates a grant of Deferred Action for Childhood Arrivals without a
Notice of Intent to Terminate and an opportunity to respond, USCIS will
provide the individual with notice of the termination.
(2) Departure without advance parole and reentry without
inspection. USCIS may terminate a grant of Deferred Action for
Childhood Arrivals, in its discretion and following issuance of a
Notice of Intent to Terminate with an opportunity to respond, for DACA
recipients who depart from the United States without first obtaining an
advance parole document and subsequently enter the United States
without inspection.
(3) Automatic termination of employment authorization. Any grant of
employment authorization pursuant to Sec. 274a.12(c)(33) of this
chapter will automatically terminate upon termination of a grant of
Deferred Action for Childhood Arrivals, rather than in accordance with
Sec. 274a.14(a)(1)(ii) of this chapter. 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) and Sec.
274a.12(c)(14) and

[[Page 53300]]

274a.12(c)(33) are intended to be severable from one another, from this
subpart and 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. 2022-18401 Filed 8-24-22; 4:15 pm]
BILLING CODE 9111-97-P