What the End of DACA Means for Beneficiaries and Employers

On September 5, 2017, the Trump Administration announced that it will end the Deferred Action for Childhood Arrivals (“DACA”) program. Following a determination by Attorney General Jeff Sessions that the DACA program likely would be found unconstitutional following a threatened legal challenge, Department of Homeland Security (“DHS”) Acting Secretary Elaine Duke issued a memorandum formally rescinding the program.

Launched in 2012 under President Obama, DACA has provided temporary, discretionary relief from deportation and work authorization for nearly one million people who were brought to the U.S. illegally as children. With the termination of the program by the Trump Administration, those individuals will be subject to deportation unless Congress passes and the president signs legislation offering a path to legalization.

In the rescission memo, DHS indicated that the DACA program would end in six months and established an orderly wind down of the program, as follows:

• No new, initial applications for DACA protection will be accepted after September 5, 2017. Initial applications and renewal applications that were properly filed and pending on September 5, 2017, will be adjudicated to completion.
• Renewal applications for current DACA beneficiaries whose deferred action grants and associated work authorization expire on or before March 5, 2018, must be filed before October 5, 2017. After October 5, 2017, no applications for DACA protection or associated work authorization will be accepted.
• Current DACA beneficiaries and those whose initial or renewal applications are approved as outlined above will be permitted to keep their deferred action grants and associated work authorization until they expire.
• DHS will accept applications to replace lost, stolen, or destroyed EAD cards based on a grant of DACA protection.
• After September 5, 2017, DHS will not grant any new Advance Parole documents based on DACA. Any currently pending applications for Advance Parole will be administratively closed and USCIS will refund the filing fee. DHS will honor the validity period of previously issued DACA Advance Parole documents, however, CBP, as a matter of discretion, may refuse to parole a person with such a document into the U.S.

Assuming there is no legislative solution, current and previous DACA beneficiaries without another basis for relief will be subject to deportation. In the FAQ’s accompanying the rescission memo, DHS stated that information provided in DACA applications “will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings” unless the applicant falls within one of the priority removal categories outlined in previous DHS guidance on enforcement priorities. Those priorities include individuals who pose threats to national security or public safety, individuals arrested for or convicted of a crime, and individuals suspected of committing immigration fraud. However, there has been a significant increase in enforcement actions against individuals who do not fall within the priority removal categories, and we expect the administration to continue its policy of increased interior enforcement.

What This Means for DACA Beneficiaries
It is important to reinforce the point that existing grants of deferred action and work authorization under the DACA program and any future grants based on requests filed under the guidelines above will remain valid until they expire. Once the DACA grant and associated work authorization expires, beneficiaries will no longer be authorized to work and, unless Congress acts, will not be protected from deportation.

Beneficiaries should understand that despite the end of the DACA program, they still have certain rights and are entitled to challenge any deportation action before an immigration judge. The American Civil Liberties Union ("ACLU") provides useful resources explaining how individuals can protect and exercise their rights in various situations.

DACA beneficiaries should consult with competent immigration counsel that can assist them in determining whether they are eligible for any other form of temporary or permanent relief from deportation.

What This Means for Employers
Again, existing grants of deferred action and work authorization based on the DACA program remain valid until they expire. Employers are not required to take and should not take any adverse employment action against an employee with DACA-based work authorization based solely on the rescission of the program. Doing so based on an assumption about continuing work authorization could subject the employer to a charge of discrimination.

Employers must, as always, be sure to reverify all I-9 forms as necessary. If any employee’s work authorization is expiring (not only a DACA beneficiary), the employee must present a new document confirming work authorization no later than the expiration date of the previous document.

Employers who would like to assist any DACA beneficiary employee could explore options for green card sponsorship, employment transfer overseas, access to qualified counsel, etc.

If you or someone you know is affected by the end of the DACA program and would like to explore alternatives, please contact us to schedule a consultation.