On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration will end the Deferred Action for Childhood Arrivals (DACA) program implemented in July 2012 by the Obama administration. According to the attorney general’s announcement, the program will remain in place for nearly six months, until March 5, 2018. The Department of Homeland Security will phase out the program in its entirety over the next two years. A memorandum issued today by acting Homeland Security Secretary, Elaine C. Duke, clarified the following points:
- Department of Homeland Security (DHS) will process initial requests for DACA and work authorization received on or before September 5, 2017;
- DHS will not accept new initial requests for DACA benefits after September 5, 2017;
- DHS will process applications for extension of DACA benefits from current beneficiaries whose benefits will expire on or before March 5, 2018, that have been accepted by DHS as of October 5, 2017. Thus, a current beneficiary whose DACA benefits will expire March 6, 2018, or later is ineligible to file for an extension;
- DACA recipients with current work authorization will remain authorized to work until the expiration date on the employment authorization document (EAD), unless their status is revoked; and
- DHS will not approve any new applications for advance parole (travel document) under the DACA program, although it will generally honor the validity period for previously approved applications for advance parole. Pending applications for advance parole will be administratively closed and the fees will be refunded.
The DACA program has provided work and temporary residency authorization for nearly 800,000 beneficiaries who were brought with their families to the United States as children.1 DACA has allowed these young people—known as the Dreamers—to work and study in the United States free from the threat of deportation. It has been reported that over 97 percent of the Dreamers are in the US work force or in school.
|DACA Renewal Eligibility As of September 5, 2017|
DACA Status Expires On or Before March 5, 2018
DACA Status Expires As of March 6, 2018 or Later
If the DACA recipient is eligible to apply for an EAD renewal by October 5, 2017, then USCIS will grant a new two-year EAD period of DACA eligibility.
DACA status will be protected through the end of the previously issued two-year EAD period but USCIS will no longer grant further renewals.
How Employers Should Respond
1. Do not refuse to hire an applicant solely because they present a valid employment authorization document (EAD) that will expire in the future.
DACA recipients are issued EADs with two-year validity. Employers must be careful not to discriminate against DACA beneficiaries simply because they present an EAD that will expire in the future. In this regard, the Immigrant and Employee Rights Section (IER) of the Civil Rights Division at the Department of Justice advises employers that they “cannot refuse to hire an individual solely because that individual's employment authorization document will expire in the future. The existence of a future expiration date does not preclude continuous employment authorization for a worker and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA [Immigration and Nationality Act].”
2. Do not review I-9 records to validate which employees are DACA beneficiaries.
Unlike H-1B, L-1 or other skilled worker visa holders, DACA beneficiaries are not sponsored by employers. Employers with DACA workers in their population accordingly have no inherent means to detect which workers are covered. The only vehicle likely to yield this information is their I-9 records database. But employers can run afoul of anti-discrimination provisions of the immigration laws by using I-9 information to validate who is a DACA holder.
The INA places limitations on the use of I-9 information. In general, an I-9 and "any information contained in or appended " to the I-9 "may not be used for purposes other than for enforcement of the [INA] and sections 1001, 1028, 1546, and 1621 of title 18 " of US Code. INA §274A(b)(5); 8 C.F.R. §274a.2(b)(4). Indeed, the IER (formerly called the “Office of Special Counsel for Unfair Immigration Employment Practices”) has opined that providing I-9s to third-party vendors to process payroll, for example, may violate this provision. (See TA Letter, Nanda, Deputy Special Counsel, Unfair Immigration Employment Practices (May 30, 2013).)
Using information from the I-9 for DACA verification may also be viewed as violating the E-Verify Memorandum of Understanding, which provides in Art II, C.13 that the information may only be used to confirm employment and may not be disseminated to any person "other than employees of the Employer who are authorized" to conduct E-Verify. Id. Accordingly, we recommend that the I-9 not be used for purposes of identifying those employees who are working pursuant to a DACA-based EAD, other than to comply with the I-9 and E-Verify requirements. Such use could be considered an “Unfair Immigration Employment Practice ” under INA §274B.
3. In determining the length of approved work authorization, rely exclusively on your I-9 records.
Properly completed I-9 forms will include employee-provided expiration dates of their temporary work authorization, if they are subject to such expiration. Employers should rely on the I-9 expiration date to address the length of work authorization rather than on the announcement about DACA termination. The obligation of the employer is to ensure that it engages in timely reverification of I-9s for workers with time-limited work authorization.
4. Make sure that your I-9 recordkeeping is up-to-date, and that you are properly reviewing your Section 3 reverification obligations.
Properly completed I-9 records will protect employers from employer sanctions violations but only if the employer is closely reviewing the reverification obligations. Employers who have not recently audited their files should do so and institute regularly recurring review of I-9 propriety.
5. Be aware that each DACA case is distinct based on individual circumstances.
Each DACA beneficiary will face a unique set of circumstances, even though the rules as to the length of eligibility or the ability to extend are generalized. The unique circumstances include whether the DACA beneficiary has accumulated time in unlawful presence preceding the grant of DACA, but following their eighteenth birthday. If so, the DACA beneficiary may be barred from reentry to the United States for up to ten years. The delicacy of this issue, as well as the personalized circumstances generally, will need to be evaluated closely by counsel for each individual.
On the Horizon
Legislation. The six-month extension of the program is reportedly designed to give Congress an opportunity to pass legislation to protect DACA beneficiaries, putting the issue of protecting individuals brought to the United States as children back in the hands of Congress. There appears to be some bipartisan support for humanitarian legislation, such as the BRIDGE (Bar Removal of Individuals who Dream and Grow our Economy) Act. The BRIDGE legislation was introduced in January 2017 by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL), along with five other senators and by Representative Mike Coffman (R-CO) and seven other members of the US House of Representatives. The BRIDGE Act would give “provisional protected presence” and work authorization to individuals under the same criteria that were applied for DACA beneficiaries. Unlike the Dream Act, which failed to pass in 2011, the BRIDGE Act would not provide a pathway to US citizenship. Rather, it would allow people eligible for DACA to receive work authorization and provisional protected presence for up to a three-year period. As for partisan efforts, the Recognizing America’s Children (RAC) Act, introduced in March 2017 by Representative Carlos Curbelo (R-Florida) and co-sponsored by Representative Leonard Lance (R-NJ), grants DACA high school graduates conditional immigration status if they lack a serious criminal record and do not rely upon public assistance. Most recently, Representative Luis Gutierrez (D-Ill.) on July 28 introduced the American Hope Act, which is currently co-sponsored by 116 Democrats. House Speaker Paul Ryan’s comments prior to, and in anticipation of, the administration’s announcement to end DACA, appeared to support bipartisan action to protect Dreamers. But with the full plate Congress faces currently, including action on the federal budget, it is premature to assess whether a congressional solution is likely to ensue before the March 5, 2018, termination of DACA.
Litigation. The impetus for the White House announcement on DACA was the threat by plaintiffs (including Texas and other states) to amend their 2014 complaint (Texas v. United States) concerning expansion of the DACA program and to challenge DACA’s legality if the White House did not take steps to halt DACA by September 5. In addition, the states of New York and Washington have threatened to sue the Trump administration if it acts to end DACA. New York Governor Andrew Cuomo is quoted in press reports as saying, “if he moves ahead with this cruel action, New York State will sue to protect the ‘dreamers’ and the state’s sovereign interest in the fair and equal application of the law.”
September 5, 2017, Publications from the US Department of Homeland Security