DHS Issues Regulation to Preserve and Fortify DACA
DHS has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit. Since its inception in 2012, DACA has allowed over 800,000 young people to remain in the only country many of them have ever known, with their families.
The rule continues the DACA policy as announced in 2012 and is based on longstanding USCIS practice. The rule states that DACA recipients should not be a priority for removal. The requirements are the same as stated in 2012.
The final rule:
- Maintains the existing threshold criteria for DACA;
- Retains the existing process for DACA requestors to seek work authorization; and
- Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.
The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021 injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.
USCIS Reaches Fiscal Year 2023 H1B Cap
On August 23rd, USCIS stated that it received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.
USCIS has completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:
- Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
This means that there will not be further lottery picks this year, as there were in past years.
DHS Publishes Fair and Humane Public Charge Rule
On September 8th, DHS has issued a final rule, to be published in the Federal Register, that provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. The rule restores the historical understanding of a ‘public charge’ that had been in place for decades, until the prior Administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.
Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge”, meaning that they are likely to become primarily dependent on the government for subsistence, can be denied admission or lawful permanent residence. Prior to 2019, almost all non-cash government benefits such as Medicaid or nutrition assistance were excluded from consideration. The 2019 rule, which was ultimately vacated and is no longer in effect, resulted in a drop in enrollments in such programs among individuals who are not subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households.
The publication of this rule in the Federal Register avoids these effects by formally codifying the historical understanding of the term. DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.
The final rule will be effective on December 23, 2022.
