News Alert: Trump Administration Announces Decision to End DACA

On September 5, 2017, Attorney General Jeff Sessions announced the Trump Administration's decision to phase out the Deferred Action for Childhood Arrival (DACA) program by March 5, 2018.  Created in 2012, DACA provides deportation protections and employment authorization for individuals who were brought to the U.S. by their parents before the age of 16 and who either never had lawful immigration status, or had remained in the U.S. beyond the expiration of their lawful immigration status.  The approximately 800,000 Individuals covered by the DACA program are commonly referred to as "Dreamers."  The Administration has suggested that the six-month phase-out period will give Congress the ability to enact legislation to provide continued protections and/or benefits to Dreamers if they choose to do so.

A Memorandum and FAQ issued by the Department of Homeland Security outlines how U.S. Citizenship and Immigration Services (USCIS) will manage the DACA phase-out.  Here are the main points:

New DACA Applications and DACA Renewal Applications

  • USCIS will continue to process all new DACA applications that were filed and pending as of September 5, 2017
  • USCIS will not accept any new DACA applications received after September 5, 2017
  • USCIS will continue to process all pending DACA renewal applications that were filed before September 5, 2017.
  • USCIS will continue to accept and process DACA renewal applications for individuals whose DACA expires between September 5, 2017 and March 5, 2018.  However, these DACA renewal applications must be received by USCIS on or before October 5, 2017.
  • DACA beneficiaries whose DACA has already expired are no longer eligible to renew.
  • USCIS will not accept any new or renewal DACA applications after October 5, 2017.

DACA Work Permits

Employment Authorization Documents (EADs) issued to DACA beneficiaries will remain valid until they expire despite yesterday's announcement. Thus, individuals with an unexpired work permit under DACA can continue to work legally up until the EAD expiration date.  They also remain eligible to change jobs during the validity period of their EAD.

DACA Travel Issues

The Administration's phase-out of the DACA program will also impact the ability of DACA beneficiaries to obtain permission to travel outside the country, also known as advance parole.  As of September 5, 2017, USCIS will reject all applications submitted by DACA beneficiaries for advance parole and it will close all pending advance parole applications and refund the filing fees.  Although USCIS has indicated that previously issued advance parole travel documents remain valid and that individuals retain the ability to exit and return to the U.S. during the validity period of the advance parole travel document, U.S. Customs and Border Protection (CBP) retains the discretion to deny entry to anyone seeking entry using an advance parole travel document.  

Since it is not guaranteed that a DACA beneficiary with a valid advance parole travel document will be allowed to re-enter the U.S., we strongly recommend that DACA beneficiaries avoid travelling outside the U.S. without consulting with their immigration attorney to assess the risks.

What Employers Need to Know

If Congress does not come up with a legislative solution for DACA, employers will not be able to continue to employ DACA employees once their work authorization expires (for EADs expiring March 5, 2018 or thereafter).  Continued employment would be considered unauthorized employment and would result in an I-9 violation.  Employers should keep in mind, however, that DACA employees remain authorized to work up until the day their EAD expires, and thus employers who decide to preemptively terminate DACA employees based on their uncertain future work authorization status may run the risk of legal action for unlawful termination based on race or national origin.

Employers interested in advocating for legislation to protect Dreamers should Contact Their Members of Congress to voice their support for DACA legislation.

Questions? Let's Talk: If you have a DACA employee and have questions about their work authorization and/or would like to explore whether any alternative employment authorization options are available, please contact an Ellis Porter attorney through our website or by phone at 248-519-9900 and we will be happy to discuss these issues with you.

What DACA Employees Need to Know

Despite yesterday's announcement, your DACA work authorization remains fully valid until the expiration date listed on your EAD.  If your DACA work authorization expires between now and March 5, 2018, you must file your DACA renewal application with USCIS no later than October 5, 2017.

Driver's Licenses: If you live in a state where DACA beneficiaries are eligible for a driver's license, and you have not yet applied for one, you should apply before your DACA expires.

Travel Issues: Even if you have a valid advance parole travel document, CBP retains the discretion to deny your re-entry to the U.S. if you travel outside the country.  Thus, we strongly recommend against travelling outside the U.S. without speaking to an immigration attorney to assess the risks.

Deportation Protections: Technically, DACA beneficiaries should still maintain deportation protections up until the date their DACA expires, and DACA beneficiaries should not be arrested or deported simply based on the fact that they are participating in the DACA program.  That said, considering the overall increase in immigration enforcement actions by the Trump Administration against people who have no criminal record, it is uncertain how reliable such protections will be in practice.  If you are a DACA beneficiary, you should be careful to avoid any situations that would bring you into contact with law enforcement and you should Know Your Rights if you are confronted by Immigration and Customs Enforcement (ICE) officers.

Questions? Let's Talk:  If you have questions about your DACA, work authorization and/or want to explore any available options for an alternate immigration status, please contact an Ellis Porter attorney through our website or by phone at 248-519-9900 and we will be happy to discuss these issues with you

What Ellis Porter is Doing

Ellis Porter will continue to monitor the progress of any legislative fixes being considered by Congress that would benefit DACA beneficiaries and their employers, and we will keep you updated.  We will also continue our advocate aggressively for a legislative solution that protects the interests of Dreamers so they can continue to contribute their skills and talents to the only country they call home.