2.9.21

Before his inauguration, President Biden expressed his commitment to keeping the Deferred Action for Childhood Arrivals program alive. On his first day in office, he issued an Executive Order directing the Department of Homeland Security and the Attorney General to “preserve and fortify” the DACA program.

President Biden’s Executive Order protecting and preserving the DACA program provides employees with more certainty in planning their careers and employers with more certainty in hiring foreign-born talent already living in the United States. It also signals the view of the new Administration that individuals who were brought to the United States as undocumented children, typically without understanding of the consequences of their caregivers’ actions, deserve protection from removal and the opportunity to thrive.

There are an estimated 1.3 million DACA-eligible residents living in the United States, and approximately 650,000 are already participating in the program. However, many have avoided registering, fearful that releasing their identities would put them at increased risk of deportation should the program ever be terminated.

DACA proponents argue that the program strengthens the U.S. economy, and are eager to build on its momentum, especially amid a pandemic. Data shows that DACA has enabled its beneficiaries to pursue higher education, leading to their employment in many professional-level occupations such as IT, manufacturing, and health care. Increased earning potential arguably enables Dreamers to invest in their communities.

Building on the new Administration’s commitment to strengthen DACA, Sens. Dick Durbin (D-Ill.) and Lindsay Graham (R-S.C.) have recently introduced a bipartisan bill, The Dream Act of 2021. It features a provision that would make those who have already registered for DACA eligible for green cards immediately, assuming they still meet the requirements. First-time applicants would essentially need to meet DACA criteria, including entry to the United States at age 17 or younger, continuous residence for at least four years before the bill’s enactment, no history of multiple misdemeanor or felony convictions, and pursuit of a high school diploma or equivalent, or admission to a college or university.

Although some lawmakers still oppose the portion of the bill that forgives illegal entry into the United States, the legislation is likely to pass in some form.

President Biden’s January 20 Executive Order, coupled with the bipartisan support for the Dream Act of 2021, provides renewed hope that DACA recipients, as well those who have not yet registered for the program but are otherwise eligible, will be able to obtain lawful permanent resident status in the United States. Until legislation is enacted, the Administration’s commitment to DACA should provide those who have not yet benefited from the program with the sense of security they need to come out of hiding, register, start contributing to Social Security, and rebuilding the economy in keeping with its aim.

DACA’s precarious history

In 2012, during the Obama Administration, the Secretary of Homeland Security issued a memorandum establishing the DACA program. DACA enabled undocumented immigrants, or “Dreamers,” who were in the United States before the age of 16 to seek employment authorization and temporary protection from removal, or deportation. To be eligible, Dreamers also had to pass a criminal background check, provide proof of education or military service, and meet other continuous residency requirements. Initial DACA approval and corresponding employment authorization was valid for a two-year period, subject to renewal for the same amount of time. In 2014, the Obama Administration attempted to expand DACA to allow for three-year work permits and introduced the Deferred Action for Parents of Americans plan, which would have conferred similar benefits to parents of lawful permanent residents or U.S. citizens. The State of Texas obtained a preliminary injunction against the expansion of DACA and creation of DAPA, ultimately taking its challenge to the U.S. Supreme Court. The Supreme Court was deadlocked, leaving the injunction in place.

Meanwhile, the Administration changed hands. President Trump criticized the DACA program for taking jobs from unemployed U.S. workers competing for the same positions. Eventually, on September 5, 2017, the Trump DHS issued a memorandum rescinding the DACA program altogether. Meanwhile, several states and former Attorney General Jeff Sessions argued that the initial 2012 program violated the Administrative Procedure Act because the Obama Administration had sidestepped the requisite notice and comment rulemaking procedures.

The end of DACA sparked a cascade of lawsuits challenging the authority of the Trump DHS to terminate the program. While the litigation was pending, only DACA recipients who had already been already approved could apply for extensions, and the U.S. Citizenship and Immigration Services accepted no new applications. Finally, on June 18, 2020, the U.S. Supreme Court ruled 5-4 that the decision to end DACA was “arbitrary and capricious.” In response to the Court’s ruling, the USCIS reinstated DACA to its 2012 Obama-era status. But then, on July 28, 2020, Acting DHS Secretary Chad Wolf issued a memorandum stating that the Agency would “consider” the future of DACA. In the interim, Acting Secretary Wolf instructed the USCIS to reject all new and future DACA requests, and limited the program by mandating that employment authorization be renewed annually and restricting Dreamers’ ability to travel.

Again, a series of lawsuits ensued, which essentially asserted that the DHS narrowed DACA instead of fully reinstating it. A federal judge in New York agreed, and on December 4, vacated the Wolf memorandum and ordered the DHS to fully reinstate the DACA program. As a result, effective December 7, the USCIS resumed accepting new DACA applications and fully reinstated the program.

States step in

It is important to note that states cannot individually determine the legal status of Dreamers.  However, in the intervening years many states have addressed some of the collateral issues that stem from being undocumented. For example, all 50 states and the District of Columbia permit DACA recipients to obtain driver’s licenses.  Numerous states have also enacted legislation to help many Dreamers overcome barriers to higher education and employment, such as the ability to attend state universities and qualify for in-state tuition or financial aid and qualify for certain professional or trade licenses. The patchwork of state rules over the years is a signal to Congress of the growing consensus among employers, trade groups, and other organizations to create a legal pathway to status for Dreamers through federal legislation.

The Dream is alive

It is unclear exactly what modifications the Biden DHS will make to the existing DACA program.  Possibilities include an extension in the employment authorization validity period to three years instead of two, or an attempt to provide relief to undocumented parents, as attempted with President Obama’s 2014 expansion. But for the time being, Dreamers can rest assured that DACA and the corresponding two-year work authorization period it provides remain very much intact.

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