On September 5, 2017, the U.S. Department of Homeland Security (“DHS”) issued a Memorandum and Frequently Asked Questions announcing the winding down of the program known as Deferred Action for Childhood Arrivals (“DACA”). DHS will provide a limited window for handling applications as follows:
- New DACA applications properly filed with DHS on or before September 5, 2017 will be processed.
- New DACA applications filed with DHS on or after September 5, 2017 will be rejected.
- For current DACA beneficiaries whose DACA or Employment Authorization Documents (“EADs”) expire prior to March 5, 2018, renewal applications (DACA as well as for EADs) will be processed but only if the renewal applications are properly filed on or before October 5, 2017.
- DHS will reject all DACA renewal requests and associated applications for EADs filed outside of the parameters specified above.
- DHS will not terminate the grants of previously issued deferred action or revoke EADs solely based on the directives in the Memorandum for the remaining duration of their validity periods.
- DHS will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection (“CBP”) will retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, U.S. U.S. Citizenship and Immigration Services (“USCIS”) will retain the authority to revoke or terminate an advance parole document at any time.
- DHS will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
- DHS will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
What does this mean for current DACA beneficiaries and applicants?
Based on the September 5, 2017 Memorandum, DHS does not plan, at this time, to terminate deferred action grants or revoke EADs already issued to DACA beneficiaries, unless it deems it appropriate in specific cases under its discretionary authority. DACA beneficiaries with valid EADs should continue to monitor the situation closely in the event that DHS issues additional guidance to revoke previously-granted deferred action or EADs.
DHS also plans at this time to continue to adjudicate pending applications for initial grant of DACA as well as for extensions from current beneficiaries, as long as they were filed on or before the date of the Memorandum. DHS plans to adjudicate extension requests for individuals whose benefits will expire between September 5, 2017 and March 5, 2018, but such applications must be properly filed with USCIS on or before October 5, 2017. This means that some DACA beneficiaries would be allowed to apply for one more extension of DACA and the accompanying EADs as long as they meet the parameters above. There is no guarantee that DACA and the EADs for such individuals would be extended as DHS would engage in a case-by-case adjudication of each application.
What about individuals who have not yet filed for initial DACA?
Individuals who have not yet properly filed an initial application for DACA would not be eligible to apply under the program after September 5, 2017.
What does this mean for employers who employ DACA beneficiaries?
Employers should not make any hasty decisions involving DACA beneficiaries without first analyzing the situation. The September 5, 2017 Memorandum does not specifically rescind or revoke previously-granted EADs. Unless the above policy changes, current EADs would be valid until they expire or up until September 5, 2019. Some EADs to be issued in the near future could potentially be valid until March 2020.
Many employers might not even be aware that they employ DACA beneficiaries, unless the employees specifically informed them of the basis for their work authorization. Employers who employ DACA beneficiaries would have prepared a Form I-9 for DACA beneficiaries, as required for all new employees regardless of their immigration status. DACA beneficiaries would most likely have presented an EAD as the acceptable document for I-9 purposes. However, EADs are not exclusive to DACA beneficiaries. There are many other categories of immigrants and non-immigrants who qualify for an EAD. The EAD category for DACA beneficiaries is “C33” – one of many other categories.
Rather than trying to determine the basis of the EAD for each employee who presented one in the course of the I-9 verification process, at this time, employers should ensure that they have a reminder system in place to reverify expiring I-9 work authorization documents. Prior to the expiration of the work authorization documents, employers will need to reverify the Form I-9 in accordance with the normal reverification process, which all employers are required to have. Employers may not require a specific document for I-9 reverification purposes. Employers must allow employees an opportunity to select acceptable documents from the I-9 instructions. Some DACA beneficiaries may have obtained alternative status by the time their EADs expire, so it is important to give them an opportunity to provide acceptable I-9 documents of their choice.
Employers should continue to monitor the issues closely in the event that DHS issues more specific guidance for employers relating to DACA EADs.
What are the long-term options for DACA beneficiaries?
This is a very fact-specific determination and depends on the individual’s circumstances and background. It is important for DACA beneficiaries to explore their options and to begin working on a back-up plan, if any.
Apart from individual-specific options, Congress will now be under increased pressure to enact some form of relief for DACA beneficiaries and those who would have qualified for DACA. President Trump tweeted on Tuesday, “Congress, get ready to do your job – DACA!,” placing the spotlight on lawmakers to come up with a legislative solution. There have been several unsuccessful attempts by Congress to pass a bill addressing the DACA population and there are currently some legislation drafts being considered. Affected individuals should not rely on Congressional action and should actively explore alternative solutions, if any.