Deferred Action for Childhood Arrivals, 53152-53300 [2022-18401]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[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

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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), https://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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \34\ Texas v. United States, 549 F. Supp. 3d 572 (S.D. Tex. 
2021) (Texas July 16, 2021 memorandum and order).
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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 
https://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/.
    \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 https://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), 
https://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.
---------------------------------------------------------------------------

    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\
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    \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).
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    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.
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    \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\
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    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \169\ See new 8 CFR 236.21(d).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
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    \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\
---------------------------------------------------------------------------

    \298\ ICE, Contact ICE About an Immigration/Detention Case, 
https://www.ice.gov/ICEcasereview (last updated June 24, 2022).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
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    \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).
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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.'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \324\ Source: USCIS, Office of Performance and Quality, NPD, C3, 
ELIS, queried Aug. 2021, TRK#8129.
---------------------------------------------------------------------------

    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.
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    \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.
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    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:
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    \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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BILLING CODE 9111-97-P

[[Page 53274]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.023

    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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[[Page 53275]]

[GRAPHIC] [TIFF OMITTED] TR30AU22.024

BILLING CODE 9111-97-C
    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
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    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.

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

[[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.
---------------------------------------------------------------------------

    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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BILLING CODE 9111-97-C
    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.
---------------------------------------------------------------------------

    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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BILLING CODE 9111-97-C
    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\
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    \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).
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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