Washington, DC. On September 5, 2017, the Department of Homeland Security (DHS) initiated the wind down of the program known as Deferred Action for Childhood Arrivals (DACA). On June 29, the attorneys general of Texas and several other states sent a letter to U.S. Attorney General Jeff Sessions asserting that the DACA program is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding an expansion of the DACA program and the now-rescinded program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Yesterday, Attorney General Jeff Sessions sent a letter to Acting Secretary of DHS Elaine Duke articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” Attorney General Sessions recommended that the Department wind down the program in an efficient and orderly fashion, and his office reviewed the terms of DHS action.
The program had been started on June 15, 2012 by the Secretary of Homeland Security, allowing certain undocumented immigrants to apply for work authorization, deferred action from deportation, and advance parole (permitting travel internationally). An individual granted deferred action under DACA was considered to be lawfully present for the duration of the granted period, but was not granted lawful status or excused for any previous or subsequent period of unlawful presence.
What This Means for DACA Recipients
DACA Beneficiaries With Valid EADs
Current DACA beneficiaries will retain their privileges until current expiration, unless terminated or revoked. DACA benefits are typically valid for two years from the date of issuance.
Initial DACA Applications and EAD
Applications for DACA protection and associated EAD cards received after September 5, 2017, will be rejected. Those filed and accepted by USCIS as of September 5, 2017, will be determined on a case-by-case basis.
DACA Beneficiaries Applying for EAD Extensions
Current DACA beneficiaries whose EAD cards will expire between September 5, 2017, and March 5, 2018, may apply for an EAD extension by October 5, 2017. These applications will be renewed on a case-by-case basis. All requests to renew DACA and associated applications for EADs after October 5, 2017 will be rejected.
Effective September 5, 2017, USCIS will no longer accept any new Form I-131 Applications for Travel Document (Advance Parole) to permit international travel for DACA beneficiaries. Pending applications will be terminated and fees refunded. Those with currently valid Advance Parole documents will generally retain the benefit until the expiration date of the Advance Parole; however, U.S. Customs and Border Protection (CBP) has the ultimate authority to determine admissibility at the border.
Protections After Expiration
The Department of Homeland Security (DHS) claims that once an individual’s DACA benefits expire, his or her case will not be referred to U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE as set forth in USCIS’s Notice to Appear guidance.
What This Means for Employers
Employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their I-9 compliance records and completed I-9 form expiration dates to confirm employees’ work authorization expiration dates.
An employer should confirm timely reverification of an employee’s expiring work authorization under the Form I-9 rules but should not treat DACA beneficiaries differently during the employment reverification process.
Employers must continue to accept employees’ valid work authorization documents (and may not restrict an employee’s choice of acceptable documents), and should not take any unlawful adverse action, such as termination of employment, against these employees. Taking premature action based on the September 5 announcement is risky is not recommended and employers should not identify or treat DACA employees differently unless further legislative or judicial action is taken.
Further reading can be found in the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA) and the DHS Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) webpage.