Trump Administration Rescinds DACA Program

The Deferred Action for Childhood Arrivals (DACA) program will be discontinued, according to an announcement made by Attorney General Jeff Sessions last week.   The program, which blocked the deportation of undocumented individuals who came to the United States as minors, was created by the Obama Administration in 2012.
 
The DACA program allowed individuals to be eligible to receive work permits if they:
 
  • Were under age of 31 as of June 15, 2012;

 

  • Came to the United States before turning 16;

 

  • Have continuously resided in the United States since June 15, 2007, up to the present time;

 

  • Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;

 

  • Had no lawful status on June 15, 2012;

 

  • Are currently in school, have graduated, or obtained a certificate of completion from high school or a 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, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
 
In deciding to rescind the DACA program, the Trump Administration explained that the program’s creation exceeded the scope of executive authority and, as such, was subject to legal challenge by multiple states.  The Administration took the position that since creation of this kind of program falls squarely within Congress’ legislative authority, it would defer the complete wind-down of DACA for six months to give Congress time to act on the matter.
 
Considering these developments, employers with workers who are DACA recipients should keep a few things in mind.  According to a FAQ issued by the Department of Homeland Security:
 
  • New DACA initial applications will not be accepted or processed moving forward.

 

  • New requests for travel authorization (submitted on a Form I-131 application for advance parole) will not be granted moving forward.

 

  • Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

 

  • Properly filed pending DACA renewal requests and associated applications for EADs will be processed for current beneficiaries that have been accepted as of September 5, 2017, and for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.

 

  • USCIS will reject all requests to renew DACA and associated applications for EADs filed after October 5, 2017.

 

  • No person should lose benefits prior to March 5, 2018 if they properly file a renewal request and associated application for employment authorization.

 

  • Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.  This means that when such an individual’s EADs expire or are terminated, their removal will no longer be deferred and they will no longer be eligible to work in the United States.
 
As the foregoing suggests, this area of law is complicated and employers should consult with legal counsel before taking employment action related to a worker’s DACA status.