Trump Administration Phase-Out of DACA: What It Means for Employers

The Trump Administration announced on September 5, 2017, that it is terminating DACA. The program, Deferred Action for Childhood Arrivals, administered by the Department of Homeland Security (DHS), has permitted people who came to the United States as children to remain here and be eligible for employment though they lack legal status. Bipartisan legislation has been introduced in the Senate that could replace DACA. A measure to replace DACA also has been introduced in the House of Representatives.

DACA has been available for persons who have met the following requirements:

• Came to the United States before reaching their 16th birthday;
• Were under the age of 31 as of June 15, 2012;
• Have continuously resided in the United States since June 15, 2007, up to the present time and did not depart the United States on or after August 15, 2012 without DHS authorization;
• Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety.

As a “deferred action” program, DACA did not grant legal status to anyone, but it enabled beneficiaries to live, work, and pursue education in the U.S., and apply for driver licenses or a state identification card, without the fear of deportation. Applications for employment authorization documents (EAD cards) are submitted to U.S. Citizenship & Immigration Services (USCIS).

Now, DACA is ending. Effective September 5, 2017, no applications for new DACA benefits, including EAD cards, will be accepted. However, there is a one-month period to apply for a two-year renewal, with a deadline of Thursday, October 5, 2017. This grace period applies only to those whose DACA benefits and protections expire within six months, up to March 5, 2018.

What does the rescission of DACA means for employers? The options depend to some extent on whether a person is seeking DACA benefits for the first time, or renewing:

• Current DACA recipients, as well as those eligible to apply by October 5, 2017, will be permitted to retain both the period of deferred action and, for DACA extensions, their EAD cards until they expire, unless terminated or revoked.
• DACA beneficiaries must possess valid EAD cards to work.
• USCIS will process new DACA EAD applications received before September 5, 2017.
• USCIS will not process new DACA EAD applications received September 5, 2017 or thereafter.
• DACA and EAD renewal applications that were properly filed prior to September 5, 2017 will continue to be processed.
• USCIS will process two-year DACA EAD renewal applications received by October 5, 2017 for individuals whose current DACA EAD expires between September 5, 2017 and March 5, 2018. Individuals who meet these criteria should file their renewal applications as soon as possible to preserve their work authorization.
• DACA beneficiaries with EAD applications pending renewal for at least 75 days should contact USCIS to request that the agency act to approve the application.
• DACA employees should not be terminated on the basis of a future expiration of an EAD card.
• DACA beneficiaries should not depart the United States, even with DHS authority to do so, without contacting immigration counsel to assess implications.
• DACA beneficiaries may have other options available, through political asylum claims, marriage to a U.S. citizen, employment sponsored immigration, or other legal immigration avenues.

To read the full text of the DHS memorandum on rescission of the DACA program, click here.

For the FAQs on the phase-out process, click here.

Please contact us if you have any questions or desire further information regarding the DACA phase-out.