On September 5, 2017, the Trump Administration announced the end of the Deferred Action for Childhood Arrivals (DACA) program, which was created by the Obama Administration in 2012 through an Executive Order. Through DACA, nearly 800,000 undocumented individuals have been granted temporary work authorization and deferred action (which offered some protection from deportation). DACA recipients are immigrants who arrived in the U.S. in 2007 or earlier as children under the age of 16, who had no legal immigration status when the DACA program started in 2012.
The Department of Homeland Security (DHS) issued a memorandum and accompanying FAQs that rescind the 2012 memorandum that established DACA and explain how and when its protections will end. DACA recipients are protected from deportation proceedings and are granted work permits and sometimes also advance parole, which grants the right to return to the U.S. after international travel. Here’s how yesterday’s rescission of DACA impacts these individuals:
Deferred Action and Employment Authorization:
Current DACA recipients will keep their work permits and deferred action grants until they expire (two years after issuance). Initial DACA applications and associated applications for employment authorization that are pending will be processed, but no new initial DACA requests received after September 5, 2017 will be accepted.
Renewal DACA applications and associated applications for employment authorization that are pending will be processed. USCIS will also continue accepting renewal applications through October 5, 2017, for existing DACA recipients whose benefits expire March 5, 2018 or earlier. DACA recipients can still apply to replace a valid EAD that has been lost, stolen, or destroyed.
Advance Parole Travel Authorization:
USCIS will not approve any more DACA-based applications for advance parole. Pending applications for advance parole will be administratively closed, and USCIS will refund the filing fees. While existing advance parole may be honored, DACA recipients should seek counsel before departing the U.S. with the intention to return. DHS may revoke or terminate advance parole at any time, including while the recipient is outside the U.S., resulting in the individual being denied re-entry to the U.S.
DHS confirmed that it would not terminate or revoke previously approved grants of DACA or work permits solely based on its decision to rescind the DACA program. It also stated that “information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).” Thus, it remains to be seen whether USCIS will collaborate with ICE in identifying DACA recipients whose deferred action has expired so that they can be put into removal proceedings to be deported.
Bottom Line
Unless Congress acts to provide a legislative remedy, hundreds of thousands of members of the American workforce will lose their work authorization over the next two and a half years. In the meantime, employers should treat these workers normally and should accept their unexpired work authorization documents as satisfactory evidence of work authorization to complete or re-verify an I-9 form. Employers should not single out or inquire whether any specific employee is a DACA recipient, but may provide information about the end of the DACA program to their workforces.
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