Rescission of DACA Program: What Employers Need to Know

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals (DACA) and the Department of Homeland Security (DHS) issued the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA). DACA is a program that provides deportation relief and work authorization to certain undocumented immigrants brought to the United States as children.

What is DACA? 

The Deferred Action for Childhood Arrivals (DACA) program was established by the Obama administration to provide relief to undocumented immigrants brought to the United States as children. Through prosecutorial discretion, on June 15, 2012, the Secretary of Homeland Security issued the DACA memorandum, which was entitled “Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children.” DACA allows certain undocumented immigrants to apply for deferred action from deportation and gives undocumented immigrants the ability to apply for work authorization, as well as the ability to apply for advance parole, permitting international travel. An individual granted deferred action under DACA is considered to be lawfully present during the period it is in effect, but deferred action does not provide lawful status, nor does it excuse any previous or subsequent period of unlawful presence. A DACA recipient could obtain an Employment Authorization Document (EAD), which provides work authorization for any employer for the duration of the EAD. The DACA program has provided protection to nearly 800,000 individuals since 2012.

In a letter he sent to the Department of Homeland Security on September 4, Attorney General Sessions reasoned DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Winding down the DACA program, and not ending it immediately, provides an opportunity for Congress to act over the next six months in order to preserve DACA protections.

What Rescission Means for DACA Recipients 

DACA Beneficiaries With Valid EADs

DACA beneficiaries will retain their period of deferred action and their associated EADs will remain valid until current expiration, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

Initial DACA Applications and EAD

Initial applications for DACA protection and associated EAD cards received by U.S. Citizenship and Immigration Services (USCIS) after September 5, 2017, will be rejected. Initial applications filed and accepted by USCIS as of September 5, 2017, will be adjudicated on an individual, case-by-case basis.

DACA Beneficiaries Applying for EAD Extensions

Current DACA beneficiaries whose EAD cards will expire between September 5, 2017, and March 5, 2018, are eligible to apply for an EAD extension at this time. These applications for renewal must be filed and accepted by October 5, 2017. USCIS will adjudicate these applications on an individual, case-by-case basis. USCIS will reject all requests to renew DACA and associated applications for EADs received after October 5, 2017.

Advance Parole

Effective September 5, 2017, USCIS will no longer accept any new Form I-131 Applications for Travel Document (Advance Parole) to permit international travel for DACA beneficiaries. USCIS will close all pending applications for Advance Parole and will refund all associated fees. Those with currently valid Advance Parole documents will generally retain the benefit until the expiration date of the Advance Parole, however, U.S. Customs and Border Protection (CBP) retains the authority to determine admissibility at the border.

DACA Protection After Expiration

DHS has advised that once an individual’s DACA benefits expire, his or her case will not be referred to U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes (unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE as set forth in USCIS’s Notice to Appear guidance).

What Rescission Means for Employers

Employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their I-9 compliance records and completed I-9 form expiration dates to confirm employees’ work authorization expiration dates.

An employer is obligated to confirm timely reverification of an employee’s expiring work authorization under the Form I-9 rules but should not treat DACA beneficiaries differently during the employment reverification process. Employees have the choice to present acceptable identity and work authorization documents, and employers may not restrict an employee’s choice of acceptable documents.

As DACA beneficiaries discover their options in light of the rescission of the program, employers must continue to accept employees’ valid work authorization documents and should not take any unlawful adverse action, such as termination of employment, against these employees. Employers could face significant risk by taking premature action based on the September 5 announcement and should not identify or treat DACA employees differently unless further legislative or judicial action is taken on this issue.

The DHS offers further information in its Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) webpage.

The Ogletree Deakins Immigration Practice Group will continue to monitor and report on developments on this issue and other important immigration-related news as additional information becomes available.