By Jared C. Leung
The state of DACA (Deferred Action for Childhood Arrivals) is in flux. DACA is a program created by President Obama in 2012 by executive action to allow eligible individuals to stay in the U.S. and obtain work permits. DACA recipients do not receive green cards or any visa status. However, under DACA, they would not be deported and could remain in the U.S.
Individuals were eligible for DACA if they:
• Were under the age of 31 as of June 15, 2012, the date DACA was created;
• Came to the U.S. before reaching their 16th birthday;
• Had continuously resided in the U.S. since June 15, 2007, up to the present time;
• Were physically present in the U.S. on June 15, 2012, and at the time of making their request for consideration of DACA with the U.S. Citizenship & Immigration Services (USCIS);
• Had no legal immigration status on June 15, 2012;
• Were currently in school, had graduated or obtained a certificate of completion from high school, had obtained a general education development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.; and
• Had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.
The DACA program has always been controversial. However, this article does not address the arguments for or against DACA. Rather, the discussion here is about what DACA recipients and employers can do to prepare themselves in light of President Trump’s announcement last month that DACA will end on March 5, 2018.
In a statement, Acting Department of Homeland Secretary Elaine Duke said, “With the measures the Department is putting in place today, no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after today will be acted on.”
Preparing for DACA cancellation
Employers and DACA recipients should prepare for the impacts of DACA cancellation. Many school districts, especially those with a high percentage of Hispanic student populations, have made announcements about the cancellation of DACA in an attempt to calm students, their parents, and staff alike who are DACA recipients. Microsoft, Apple, and many employers in the U.S. are opposed to the rescission of DACA as well. By September 11, at least 19 states had filed suits against DACA rescission. Other lawsuits have also been filed, including one from the University of California.
What Can DACA Recipients Do?
• DACA recipients with advance parole travel documents should not travel outside of the U.S. It is uncertain whether they will be allowed to return to the U.S., so the risk is too great. USCIS will return any pending advanced parole applications and refund the filing fees.
• No new initial requests or associated applications filed after September 5, 2017 will be acted on. In other words, if an individual was eligible but never applied for DACA or a work permit before September 5, there is no possibility to now apply. We do not know whether enforcement action will start to take place now, or after March 5, 2018. More details will emerge as DHS implements the rescission of DACA over the next six months. However, President Trump tweeted on September 7: “For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about - No action!”
• DACA recipients with expiring DACA status or work permits between September 5, 2017 and March 5, 2018 must file an extension before October 5, 2017. USCIS will reject all applications to renew DACA and associated applications for work permits filed after October 5, 2017.
• If a DACA beneficiary’s work permit is lost, stolen, or destroyed, he/she may still request a replacement EAD by filing form I-765. However, the replacement work permit will only be valid for the previously approved DACA time period.
• Needless to say, DACA beneficiaries must not get into trouble with the law in any way. Any DACA beneficiaries with pending or final criminal proceedings become a “priority for enforcement action” after March 5, 2018.
What Can Employers with DACA Employees Do?
• Unfortunately, when a DACA employee’s current work permit expires, he/she will lose work authorization and can no longer be legally employed. Employers should plan for that as a “worst case scenario.”
• While employers may have a conversation with DACA employees and provide encouragement and support, employers must not take any adverse employment actions against DACA employees if they still have valid work authorization. Their work permits are valid until they expire.
• Do not change I-9 reverification process for DACA employees. Some DACA recipients might have independently obtained permanent resident status or the “Green Card” since receiving their initial DACA status and work authorization, but have not updated their I-9 forms. Therefore, employers should follow normal I-9 reverification process to ask any employees whose work authorization is ending to provide documents to re-verify their employment authorization, including DACA recipients. DACA recipients who have obtained permanent residence status should be able to provide new documents to demonstrate work authorization. Unfortunately, other DACA recipients will not and their employment authorization will end, requiring that their employment be terminated.
• The burden is now placed on Congress to act in the next six months to enact permanent legislation to protect DACA recipients. Employers who want to support their DACA employees should contact Congress ASAP. Your senators and congressional representatives need to hear from you about how this affects your business. Proponents of cancelling DACA argue that DACA beneficiaries are taking jobs from U.S. citizens. If you disagree with it, as employers, your voice is powerful and should set the record straight.
It is clear that DACA will be cancelled on March 5, 2018. However, it is less clear on what will happen to the estimated 800,000-plus DACA recipients. We do not know at this point whether there will be any permanent legislative fixes to help DACA recipients. For a few days, it seemed that President Trump and Democrats were going to work together on a solution. Unfortunately, that optimism waned rather quickly. However, legislative remedies are the key to resolving this. Legislators respond to the voices of the people and they need to be heard now.
Jared C. Leung is partner at Davis Miles McGuire Gardner, PLCC. He manages the firm’s immigration practice group.