Creator: Frederic J. Brown | Credit: AFP via Getty Images

Editor’s note: This sponsored article was contributed by attorney Charles Kuck as part of Kuck Baxter Immigration’s annual advertising partnership with Global Atlanta. 

A newly updated version of the Deferred Action for Childhood Arrivals (DACA) program is good news for Georgia employers who want to hire the almost 10,000 immigrants who are eligible for the program but have been barred from applying – immigrants who could fill needed jobs in our state. 

After consideration of more than 16,000 public comments, the Department of Homeland Security (DHS) published a final rule in the Federal Register on Aug. 30, 2022, that preserves and fortifies DACA.  

We expect the Fifth Circuit U.S. Court of Appeals in Texas to find that a lawsuit on the legality of the original 2012 DACA program is now moot, given the newly published regulations. Currently, the new August 2022 DACA regulations are set to accept new applications as of October 30. 

At the end of 2021, there were 19,700 DACA recipients in Georgia. Under the new DHS rule, they will be able to continue to renew their work permissions. More importantly, the new rule allows hundreds of thousands of new DACA applicants to file, including those who came of age after President Trump and the Texas court halted new filings in September 2017 and again in May 2021. At least 10,000 of those new applicants live in Georgia.  

The new regulation reinstates the original DACA program to do exactly what it has been doing for more than 10 years – and nothing more: to protect qualifying “Dreamers” from deportation and grant the ability to let them work legally in the U.S. 

The new regulation will: 

  • Allow current, qualifying DACA recipients to renew their status 
  • Resume the processing of 80,000-90,000 pending new DACA applications nationwide 
  • Reopen the application process to 100,000-200,000 more applicants, including another 10,000 in Georgia, who will be eligible to file once the new regulation goes into effect Oct. 30, 2022 
  • Permit current DACA recipients to travel internationally with advanced permission from the United States Citizenship and Immigration Services (USCIS)  

The travel provision is important because most Dreamers entered the U.S. without a visa, and now, if they are married or have a child who is 21, they will be able to travel abroad, get legal entry when they return, and then be eligible to apply for a green card [a legal permit to live and work permanently in the U.S.]. 

DACA recipients who obtained their DACA status before they turned 18.5 years old also remain eligible to be sponsored for a green card by their U.S. employer through a complicated process called “labor certification.”  

Requirements for DACA recipients under the administration’s new regulation remain the same. DACA applicants must have entered the U.S. before age 16 and before June 15, 2007. The last eligible DACA recipient would have come of age to apply for DACA on June 14, 2022, when they turned 15 and entered at one day old. Thus, there are no more newly eligible DACA recipients under the new regulation; their number is finite.  

DACA recipients must also have maintained continuous, physical presence in the U.S. since June 15, 2007. They must have or be working toward a GED or high school diploma or be enrolled in other continuing education, and also display “good moral character.”    

This new regulation is essential for current and eligible Dreamers. The DACA program means the difference between being able to legally work and live in the U.S. — which is often the only home they’ve ever known – and being forced to return to their country of birth, a place of which most have no recollection. It is a lifeline to these young men and women.  

But what DACA means for the business community is almost as critical.  

Dreamers as workforce 

Employers in Georgia and throughout the U.S. already rely on DACA recipients as employees. More than 600,000 Dreamers are currently protected under DACA. But an estimated 3.6 million undocumented immigrants under age 18 – one-third of the total undocumented population – are thought to be residing in the U.S. 

These immigrants comprise the future – and current – workforce of America. But there is a finite universe of potential DACA recipients.  

A third of DACA recipients in Georgia are now married and have children. They typically came to the U.S. more than 20 years ago and are now in their late 20s. Almost 100 percent are employed, 90 percent graduated from high school and one-third have completed some college education. 

Extending DACA to eligible recipients to help solve the labor shortage crisis in our state should be a no-brainer. But obstructive politicians have stood in the way. 

Consider this timeline: 

  • June 2012: The Obama Administration implemented the DACA program 
  • September 2017: The Trump Administration announced a rescission of DACA, halting new applications and phasing out renewal requests. 
  • January 2018, USCIS resumed accepting DACA requests following a federal court order. 
  • August 2018: A federal district court ruled that no first-time DACA applications would be accepted, but existing recipients could renew their DACA status. 
  • June 2020: The Supreme Court ruled against the Trump Administration’s termination of DACA and sent the case to the Department of Homeland Security (DHS) for reconsideration, meanwhile keeping the program in place. 
  • December 2020: A U.S. District court ordered the DHS to fully reinstate the DACA program. 
  • July 2021: A federal judge in Texas ruled DACA illegal and blocked new applicants, but existing recipients could still renew. 
  • July 2022: The Fifth Circuit Court of Appeals heard the Biden Administration’s appeal of last July’s ruling, requesting to return DACA’s legal status. 
  • August 3, 2022: Pending first-time DACA applications and recipients whose DACA status lapsed over a year ago were denied relief by an Eastern District of New York’s decision. But this decision does not change the status quo; current DACA holders or those whose status lapsed less than one year ago can still file for renewals. 

What now? 

What happens next will be pivotal.  

There were 181,180 DACA recipients whose status was set to expire between now and the end of March 2023 if they had not filed for renewal by August 2021. They are now able to renew under the new regulation.  

Additionally, even if the Fifth Circuit declares the old DACA unlawful (because it was created via a DHS memorandum and not by a formal agency rulemaking process with public notice and comment), the new DACA regulation will still be viable, allowing new applications on October 30.

[pullquote]The reality is that only when we stop demonizing immigrants can we begin to use the immigration process to fix our workforce problem.  [/pullquote]

This is all good news. A better scenario, however, would be if the Biden Administration would adjust DACA entry date requirements with a simple regulatory fix. There is nothing stopping the administration from moving the DACA eligibility dates forward so pending Dreamers could stay eligible. There is no need for approval from Congress to do this. The current administration simply suffers from a lack of imagination and leadership on immigration. 

DACA is a path forward for many people. Until Congress does the right thing — and they will eventually do so — DACA is their lifeline to a quasi-normal life in the U.S.  

Yet, the best-case scenario would be to fix our broken immigration system. Congress has already considered a meaningful solution. The U.S. House of Representatives passed H.B. 6, the American Dream and Promise Act of 2021, which would make 2.7 million Dreamers and 400,000 Temporary Protected Status (TPS) recipients eligible to apply for conditional legal status. Sens. Lindsey Graham (R-South Carolina) and Dick Durbin (D-Illinois) introduced a Senate version of the bill, the Dream Act of 2021, but did not gain the support of nine other Republican senators that are needed to pass the legislation. 

If we had just 10 Republican senators with foresight and political courage, we would have green cards for DACA recipients. Unfortunately, that is unlikely to happen in an era when politicians are looking for somewhere to shift the attention from their own shortcomings and failures.  

The reality is that only when we stop demonizing immigrants can we begin to use the immigration process to fix our workforce problem.  

Immigration as a solution 

Clearly, we have a worker shortage in this country, and it’s not just for picking grapes. We have a shortage of technology experts, manufacturing workers, pilots and almost every occupation. Where could we possibly get more workers? Immigration is the obvious solution.  

First, we could legalize the almost 12 million undocumented immigrants already living in the U.S., 96 percent of whom are employed. 

We could also increase legal immigration. The number of employment and investment-based immigrants permitted annually is fixed at 140,000, which includes their spouses and children. So, that translates to roughly only 60,000 new workers and investors who are allowed to enter per year into an economy of 80 million jobs with almost 11 million positions that need to be filled.  

If we would increase the legal limit to half a million, two things could happen:  

  1. We could reduce our worker shortage, plus control inflation because immigrant labor would theoretically lessen wage advancements.  
  2. We could fix our illegal immigration problem because more immigrants would be able to come here legally.  

Unfortunately, however, self-interest and fear of immigrants (something we as a country have long possessed) is stronger than common sense in our current political system. 

The USCIS is now accepting DACA renewal applications electronically. Contact us at Kuck Baxter Immigration for assistance with navigating your current legal issues.