# Deferred Action for Childhood Arrivals > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-18401 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 30, 2022 - **Citation:** 87 FR 53152 ## Text 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. 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: Rená 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 (§ 236.21(c)(1)) 2. Employment Authorization (§§ 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 (§ 236.21(c)(3)) and Unlawful Presence (§ 236.21(c)(4)) 4. Discretionary Determination (§ 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 (§ 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 (§ 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 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: 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). 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 2 Id. 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 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). 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 5 Napolitano Memorandum. 6 Id. 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 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 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); Zenén Jaimes Pérez, 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 Pérez (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). 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 14 Gonzales (2019); Jaimes Pérez (2015); Wong (2020). 15 Roberto G. Gonzales, et al., Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 a.m. Behav. Scientist 1852 (2014); Wong (2020); see also Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred Action for Childhood Arrivals on Unauthorized Immigrants, 143 J. of Pub. Econ. 98 (2016), http://www.econweb.umd.edu/~pope/daca_paper.pdf (hereinafter Pope (2016)) (finding that DACA increased participation in the labor force for undocumented immigrants). 16 Nicole Prchal Svajlenka, What We Know About DACA Recipients in the United States, Center for American Progress (Sept. 5, 2019), https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states ; Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, Migration Policy Institute (Nov. 2017), https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf (hereinafter Zong (2017)). 17 See Gonzales (2019); Nicole Prchal Svajlenka, A Demographic Profile of DACA Recipients on the Frontlines of the Coronavirus Response, Center for American Progress (Apr. 6, 2020), https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response (hereinafter Svajlenka (2020)); Wong (2020); Zong (2017). 18 Tom K. Wong, et al., DACA Recipients' Economic and Educational Gains Continue to Grow, Center for American Progress (Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow (hereinafter Wong (2017)). 19 Svajlenka (2020). 20 Angela Chen, et al., PreHealth Dreamers: Breaking More Barriers Survey Report (Sept. 2019) (hereinafter Chen (2019)), at 27 (presenting survey data showing that 97 percent of undocumented students pursuing health and health-science careers planned to work in an underserved community); See also Andrea N. Garcia, et al., Factors Associated with Medical School Graduates' Intention to Work with Underserved Populations: Policy Implications for Advancing Workforce Diversity, Acad. Med. (Sept. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635 (hereinafter Garcia (2017)) (finding that underrepresented minorities graduating from medical school are nearly twice as likely as white students and students of other minorities to report an intention to work with underserved populations). 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 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. 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 Magaña-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 Magaña-Salgado and Wong (2017)); see also Jose Magaña-Salgado, Money on the Table: The Economic Cost of Ending DACA, Immigrant Legal Resource Center (Dec. 2016) (hereinafter Magaña-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. 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: 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 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. 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. 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. 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). • 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 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 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. BILLING CODE 9111-97-P ER30AU22.006 ER30AU22.007 ER30AU22.008 ER30AU22.009 ER30AU22.010 BILLING CODE 9111-97-C 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 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 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 individuals reporting moderate or worse psychological distress. 43 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 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— 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 citizenship, voluntary self-deportation is unlikely. 53 See U.S. Department of Labor, Findings from the National Agricultural Workers Survey (NAWS) 2017-2018 (2021), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2014.pdf . 54 Ike Brannon and M. Kevin McGee, Estimating the Economic Impacts of DACA (July 5, 2019), https://ssrn.com/abstract=3420511 or http://dx.doi.org/10.2139/ssrn.3420511 (hereinafter Brannon and McGee (2019)). (“Eliminating DACA would merely increase the competition for the kinds of jobs that tend to have an excess supply of workers, while reducing the supply of employable skilled workers in the areas where we have the most acute labor shortages. Overall, we find that eliminating DACA is lose-lose-lose, benefiting virtually no one while hurting pretty much everyone.”). Response: DHS acknowledges and shares commenters' desire to ensure that U.S. workers are not harmed by the DACA policy. As an initial matter, DHS notes that beginning in August 2021 and continuing into 2022, the U.S. economy experienced more job openings than available workers. 55 Nevertheless, DHS agrees, in principle, that jobs currently held by DACA recipients might potentially be performed by U.S. citizens or noncitizens with lawful immigration status if DACA recipients lost their work authorization. However, myriad factors influence employment rates in a market economy, including prevailing conditions in specific labor markets and unique characteristics of local economies, and importantly, these various factors are interrelated and dynamic rather than independent and static. (In some circumstances, for example, hiring DACA recipients might actually boost employment of citizens and those with lawful immigration status, such as where hiring DACA recipients increases the potential for business expansion and thus leads to increased employment.) For these reasons, it is overly simplistic to predict that elimination of employment authorization for DACA recipients would result in a transfer of jobs and their corresponding wages from DACA recipients to citizens or those with lawful immigration status. 55 Bureau of Labor Statistics data show that as of March 2022, there were 0.5 unemployed persons per job opening. U.S. Department of Labor, U.S. Bureau of Labor Statistics, Number of Unemployed Persons per Job Opening, Seasonally Adjusted (March 2007 through March 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited May 23, 2022). As discussed in further detail in Section II.A.5, DHS cannot quantify the degree to which DACA recipients are substituted for other workers in the U.S. economy since this depends on factors such as industry characteristics as well as on the hiring practices and preferences of employers, which depend on many factors, such as worker skill levels, experience levels, education levels, and training needs, and labor market regulations, among others. As noted, labor market conditions are not static; the hiring of DACA workers might contribute to expansion in business activity and potentially in increased hiring of American workers. 56 As discussed in further detail in Section II.A.5, similar to the citizen population, noncitizens, including DACA recipients, also pay taxes; stimulate the economy by consuming goods, services, and entertainment; and take part in domestic tourism. Such activities contribute to further growth of the economy and create additional jobs and opportunities for both citizen and noncitizen populations. 57 The net effect on employment of citizens is difficult to specify and might turn out to be positive. DHS believes that these investments that DACA recipients have made in their communities and in the country as a whole are substantial. 56 NAS, The Economic and Fiscal Consequences of Immigration (2017), https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration (hereinafter 2017 NAS Report), at 195. 57 86 FR 53801. With regard to wage rates, DHS recognizes that, in general, any increase in labor supply or improvement in labor supply competition may potentially affect wages and, in turn, the welfare of other workers and employers. 58 But the magnitude and even the direction of the effect are challenging to specify in the abstract. As with employment, so with wages: Changes in wages depend on a range of factors and relevant market forces, such as the type of occupation and industry, and overall economic conditions. For example, in industries such as healthcare, agriculture, food services, and software development, labor demand might outpace labor supply. In such sectors, increases in the labor supply might not be enough to satisfy labor demand, resulting in increases in wages to attract qualified workers, thereby improving welfare for all workers in these sectors. The opposite could happen for industries or sectors where labor supply outpaces labor demand. 59 58 86 FR 53800. 59 86 FR 53800. With respect to comments regarding the assumptions and methodology for the labor market impact portion of the NPRM, the bases for DHS's assumptions and estimates of labor market impacts was discussed extensively in Section V.A.4.D. of the NPRM. This section included a discussion of the 2017 National Academies of Sciences, Engineering, and Medicine (NAS) Report, wherein an expert panel of immigration economists examined the peer-reviewed literature on displacement and wage effects of immigrants on native workers and attempted to describe what consensus exists around decades of findings. To the extent that this panel found research indicating that noncitizen workers displace or negatively affect the wages of U.S. citizen workers, most of these effects occur with the lowest wage jobs, potentially affecting teens and individuals without a high school diploma. 60 DHS acknowledged this potential effect in the NPRM, and explained that the literature consistently finds these less favorable labor-market effects were more likely to occur to certain disadvantaged workers and recent prior immigrants, resulting in “very small” impacts for citizens overall. 61 The NPRM also described studies discussed in the 2017 NAS Report's survey of research indicating that highly skilled noncitizen workers positively impact wages and employment of both college-educated and non-college-educated citizens. 62 This is a similar finding to what commenters pointed to in their own studies. 63 Additionally, as a commenter noted, many current and potential DACA recipients would remain in the United States even without deferred action or employment authorization. A lack of access to employment authorization by these individuals would give rise to greater potential for exploitation and substandard wages, which in turn may have the effect of depressing wages for some U.S. workers. 60 86 FR 53801. 61 86 FR 53801. 62 86 FR 53801. 63 See Brannon and McGee (2019). Given the lack of additional evidence provided by the commenter on the impact of DACA recipients participation in the labor force, DHS has not substantially revised its analysis in response to this comment. Impacts on Other Noncitizens Comment: A commenter stated that DHS never elicited public comment or considered reliance interests when it proposed shifting costs from ICE and CBP to fee-paying noncitizens. Some commenters stated that DHS failed to sufficiently articulate why it prioritizes the DACA population over other lawful, well-qualified noncitizens, including international students, F-1 Optional Practical Training (OPT) students with postgraduate degrees, dependents of H-1B highly skilled workers, H-4 dependents, or EB-1 applicants. Commenters said that “hundreds of thousands” of individuals in these other groups face the same mental stress as DACA recipients when unable to work, secure employment authorization or visa status, or faced with deportation. Response: As an initial matter, DHS did elicit public comments and consider reliance interests related to DACA, and so it disagrees with the claim that it did not do so. In the NPRM, DHS specifically and explicitly requested “comments on potential reliance 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 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. 5. Impacts on the Economy, Communities, and States Impacts on the Economy Comment: A number of commenters expressed support for the proposed rule, stating that it would have positive economic effects at local, State, and national levels. The commenters said that the proposed rule would allow recipients to start, own, and contribute to businesses, which could help create jobs for other Americans, and would spur further economic activity. Commenters also noted the proposed rule would allow DACA recipients to contribute to State and Federal tax revenue, and to pursue education that would eventually help them work in critical jobs, which would decrease labor shortages facing the United States. Citing their own research, another commenter stated DACA's implementation increased the education, employment, and wages of DACA recipients while also boosting tax revenue and output. The commenter cited its 2019 study that found that eliminating DACA would result in the DACA population losing about $120 billion in income, the Federal Government losing approximately $72 billion in tax revenue, and States and local governments losing about $15 billion in tax revenue over the 2020-2029 decade. 72 Likewise, a joint comment of 14 States' Attorneys General stated that given the economic contributions of DACA recipients, the effect of a full rollback of DACA would result in a loss of an estimated $280 billion in national economic growth over the course of a decade. Another commenter cited multiple studies indicating that the DACA policy improves labor market prospects of DACA recipients by expanding “above the table” work opportunities. The commenter stated that in some studies this is captured in simple measures like reduced unemployment and better wages, while other studies confirm that DACA recipients find jobs that are experienced as a better “fit” and more satisfactory even at similar wage levels. 73 72 Brannon and McGee (2019). 73 Pope (2016); Wong (2020); Erin R. Hamilton, Caitlin Patler, and Robin Savinar, Transition into liminal legality: DACA's mixed impacts on education and employment among young adult immigrants in California, Soc. Probs., 68(3), 675-95 (2021). In addition to comments noted above regarding potential displacement of workers by DACA recipients, multiple commenters suggested DACA recipients help to fill labor gaps amid labor shortages in the United States, with a joint comment pointing to the 8.4 million job seekers as compared to the 10 million job openings in the United States as of September 2021. These commenters cited statistics that 46 percent of DACA recipients have a bachelor's degree or higher, 74 and as a group they tend to be younger, better educated, and more highly paid than the typical immigrant. 75 As a result, they are poised to contribute to the worker pool for higher-skilled jobs that U.S. employers have reported having difficulty filling with other workers. 76 Another joint comment cited a 2019 survey in which 64 percent of small businesses reported they had tried to hire workers, but of those, 89 percent reported they found few or no qualified applicants, and asserted that DACA recipients have helped to fill these worker shortages, especially during the COVID-19 pandemic. 77 Another commenter wrote that DACA recipients who pursue higher education help offset critical shortages of skilled labor in the United States and become better positioned to support their families, communities, and the U.S. economy. Some commenters stated that if the DACA policy were terminated, then worker shortages would increase. For example, a commenter stated that if DACA recipients were to lose their protections, an estimated 30,000 front line healthcare workers would be displaced. Additionally, a commenter stated that DACA recipients fill a need in the United States for bilingual employees. 74 Tom K. Wong, et al., DACA Recipients' Livelihoods, Families, and Sense of Security Are at Stake This November, Center for American Progress (Sept. 19, 2019), https://www.americanprogress.org/issues/immigration/news/2019/09/19/474636/daca-recipients-livelihoods-families-sense-security-stake-november . 75 Ike Brannon and Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato at Liberty (Jan. 18, 2017), https://www.cato.org/blog/economic-fiscal-impact-repealing-daca (hereinafter Brannon and Albright (2017)). 76 William C. Dunkelberg and Holly Wade, Small Business Economic Trends, Nat'l Fed'n of Indep. Bus. (Oct. 2021), https://www.nfib.com/surveys/small-business-economic-trends , at 1; Anneken Tappe, Nearly half of American companies say they are short of skilled workers, CNN (Oct. 25, 2021), https://www.cnn.com/2021/10/25/economy/business-conditions-worker-shortage/index.html . 77 Nat'l Fed'n of Indep. Bus., Small Business Optimism Index (Aug. 2019), https://www.nfib.com/surveys/small-business-economic-trends . Pointing to other labor market and economic benefits of DACA, a commenter cited a large study showing that DACA recipients play a critical role in the creation of jobs and increasing spending in local economies. 78 Commenters also said that the proposed rule would allow recipients to contribute to innovation in the U.S. economy and mitigate aging trends in the U.S. population. 78 Tom K. Wong, et al., DACA Recipients' Economic and Educational Gains Continue to Grow, Center for American Progress (Aug. 28, 2017), https://www.americanprogress.org/article/daca-recipients-economic-educational-gains-continue-grow . Response: DHS acknowledges some commenters' support for the rule and agrees that DACA recipients and their households have made substantial economic contributions to their communities. The communities in which DACA recipients live, and DACA recipients themselves, have grown to rely on the economic contributions this policy facilitates. 79 As noted above, the Napolitano Memorandum contains express limitations, but over the 10 years in which the DACA policy has been in effect, DACA recipients have made major good faith investments in both themselves and their communities, and their communities have made major good faith investments in them. In the Department's judgment, the investments, and the resulting benefits, have been substantial and valuable. 79 Reasonable reliance on the existence of the DACA policy is distinct from reliance on a grant of DACA to a particular person. Individual DACA grants are discretionary and may be terminated at any time, but communities, employers, educational institutions, and State and local governments have come to rely on the existence of the policy itself and its potential availability to those individuals who qualify. DHS also acknowledges some commenters' concerns regarding the economic impact that terminating the DACA policy would have. DHS appreciates the comments regarding the number of healthcare workers who are DACA recipients and the role that DACA recipients play in job creation and spending in local economies. DHS agrees that without DACA, DACA recipients in the labor market would lose employment. Additionally, beyond the immediate impact of job loss to DACA workers and their employers, the impacts to the broader economy would depend on factors such as the nature of the jobs being performed, the level of substitutability with similarly skilled workers, and DACA recipients' ability and willingness to find undocumented employment. Similarly, as with any other population, DACA recipients participate in the local and broader U.S. economy in various employment or consumer roles and thus impact their communities and beyond. DHS has described the assumptions used in the labor market section of the RIA as well as in the estimated costs and benefits. There are many open questions here. It cannot be said with certainty whether all jobs held by DACA recipients are fully replaceable or irreplaceable by other workers, and local labor market conditions can vary such as industry characteristics and preferences for specific types of skills by employers. For example, U.S. employers apply for employment-based immigrant visas for foreign workers on an annual basis. These employment-based immigrant visas are for jobs for which there are not enough domestic workers, domestic workers with the required skills, and/or domestic workers with the required level of education. In these cases, domestic labor is not readily available as a substitute. For example, the medical field exhibits shortages of workers such as physicians, nurses, and other professionals, and nearly 30,000 DACA recipients are employed in the medical field. 80 Indeed, DACA recipients who are healthcare workers are also helping to alleviate a shortage of healthcare professionals in the United States, and they are more likely to work in underserved communities where shortages are particularly dire. 81 Whether jobs that DACA recipients occupy can be easily replaced by other authorized workers is a complex matter that depends on factors such as the nature of the job, the industry, and the employer, among others. Nevertheless, DHS considered evidence presented by these commenters, as well as the empirical findings discussed in the 2017 NAS report. DHS has determined that, on balance, the various positive economic impacts of DACA outweigh the potential adverse impacts to the labor market. 80 See, e.g., Xiaoming Zhang, et al., Physician workforce in the United States of America: forecasting nationwide shortages, Human Resources for Health, 18(1), 1-9 (2020); Svajlenka (2020). 81 Chen (2019) presents survey data showing that 97 percent of undocumented students pursuing health and health-science careers planned to work in an underserved community. Comment: Many commenters cited studies indicating DACA recipients contribute to Federal, State, and local tax revenue, as well as Medicare and Social Security. For example, numerous commenters wrote that DACA recipients pay taxes—$5.6 billion in Federal taxes and $3.1 billion in State and local taxes annually according to one study using 2020 data—and contribute significantly to Social Security and Medicare. 82 Another commenter pointed to studies that in California alone, DACA-eligible noncitizens make $905.4 million in Federal tax contributions and $626.6 million in State and local tax contributions, 83 and that “reversing” the DACA policy would result in a $351 billion loss for the U.S. economy and a $92.9 billion loss in tax revenue. 84 Another commenter, however, said that DHS could not establish these estimates without the names and tax returns of the affected populations. 82 See Svajlenka and Wolgin (2020). See also Hill and Wiehe (2017) (analyzing the State and local tax contributions of DACA-eligible noncitizens in 2017). 83 Higher Ed Immigration Portal, California—Data on Immigrant Students, https://www.higheredimmigrationportal.org/state/california (last visited June 9, 2022). 84 Logan Albright, et al., A New Estimate of the Cost of Reversing DACA, Cato Inst. (Feb. 15, 2018), https://www.cato.org/publications/working-paper/new-estimate-cost-reversing-daca (hereinafter Albright (2018)). Commenters identified other economic contributions of DACA recipients beyond tax payments. Some commenters cited statistics that DACA recipients hold $25.3 billion in spending power. 85 Many commenters also provided statistics and general information on other ways DACA recipients contribute to the economy by increasing consumer spending, purchasing homes and making $566.7 million in annual mortgage payments, paying $2.3 billion in annual rental payments, buying cars, applying for lines of credit, and opening businesses. 86 Commenters stated that recipients' purchasing power increases once they receive DACA, citing surveys stating that a majority of DACA recipients reported having purchased their first car after receiving DACA. 87 85 See Nicole Prchal Svajlenka and Trinh Q. Truong, The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition, Center for American Progress (Nov. 24, 2021), https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition . 86 See Svajlenka and Wolgin (2020). 87 See Wong (2020). Numerous commenters stated that many DACA recipients have been employed in essential industries such as education, the military, and healthcare during the COVID-19 pandemic. A commenter wrote that DACA recipients form a critical, stable, and reliable workforce that enables retailers to continue to provide goods and services throughout the pandemic. Some commenters stated that DACA recipients are critical members of unions and workforces across many sectors of the economy. Several commenters cited studies stating that DACA recipients boost wages and increase employment opportunities for all U.S. workers. 88 Others wrote that there are significant business and economic reasons to preserve DACA as its recipients drive innovation, create breakthroughs in science, build new businesses, launch startups, and spur job growth. Another commenter stated that more than two-thirds of farmworkers are immigrants and most of them lack work authorization. The commenters continued that DACA is therefore necessary to protect immigrants from employer exploitation and abuse. The commenters further stated that the presence of an easily exploitable workforce depresses wages and working conditions for all farmworkers, including the hundreds of thousands of U.S. citizens and lawful immigrants who work in agriculture. 88 See, e.g., Brannon and Albright (2017); Albright (2018); Brannon and McGee (2019); Ike Brannon and M. Kevin McGee, Estimating the Economic Impact of the 2021 Dream Act (June 6, 2021), https://ssrn.com/abstract=3861371 or http://dx.doi.org/10.2139/ssrn.3861371 (hereinafter Brannon and McGee (2021)); Martin Ruhs and Carlos Vargas-Silva, The Labour Market Effects of Immigration, Migration Observatory (Feb. 2021), https://migrationobservatory.ox.ac.uk/resources/briefings/the-labour-market-effects-of-immigration ; Matthew Denhart, America's Advantage: A Handbook on Immigration and Economic Growth, George W. Bush Inst. 118-19 (3d ed. Sept. 2017), http://gwbcenter.imgix.net/Resources/gwbi-americas-advantage-immigration-handbook-2017.pdf ; Ryan D. Edwards and Mao-Mei Liu, Recent Immigration Has Been Good for Native-Born Employment, Bipartisan Pol'y Ctr. (June 2018), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Recent-Immigration-Has-Been-Good-for-Native-Born-Employment.pdf ; Gretchen Frazee, 4 Myths About How Immigrants Affect the U.S. Economy, PBS NewsHour (Nov. 2, 2018), https://www.pbs.org/newshour/economy/making-sense/4- myths-about-how-immigrants-affect-the-u-s-economy; Alex Nowrasteh, Three Reasons Why Immigrants Aren't Going to Take Your Job, Cato at Liberty (Apr. 22, 2020), https://www.cato.org/blog/three-reasons-why-immigrants-arent-going-take-job . Response: DHS appreciates commenters' recognition of DACA recipients' contributions, both prior and ongoing, tangible and intangible, to the U.S. economy. DHS agrees members of the DACA population carry substantial spending power, generate billions in tax revenue, and fill vital roles across a broad array of industries. DHS disagrees with the comment that DHS is not able to establish various estimates without the names and tax returns of the affected populations. To develop estimates of the quantified costs and benefits presented in this rule, DHS did not need the names and tax returns of individuals in the estimated population. Moreover, DHS's methodology for the analysis is clearly presented in the RIA of this rulemaking. Commenters, in DHS's view, correctly note that the DACA policy and DACA recipients improve economic conditions broadly in the United States by driving innovation, starting businesses, and employing themselves and others, 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-18401. Public record. Not legal advice.