Employers Should Have Plan in Place for End of DACA
Employers who have employees authorized to work under the Deferred Action for Childhood Arrivals (DACA) program should start prepping for change in the next six months. Attorney General Jeff Sessions on September 5, 2017, announced the Trump Administration's decision to begin winding down DACA. The Obama-era program allowed unauthorized immigrants who came to the United States before age 16 to remain in the country to study or work without fear of deportation, provided they met certain requirements.
The Trump Administration cited federal court rulings in litigation over a related policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—as well as a conclusion reached by Attorney General Sessions that DACA is unconstitutional—as the basis for its decision to rescind DACA. Although the program did not grant lawful status to any unauthorized immigrants, it allowed qualifying individuals to apply for renewable, two-year periods of "deferred action"—i.e., protection from removal—and work authorizations.
The Department of Homeland Security (DHS) stopped accepting or processing initial DACA requests and related applications for Employment Authorization Documents (EADs)—a form of I-9 identification—as of September 5, 2017. The agency will continue to process initial requests and applications for EADs—as well as any DACA renewal requests—that were pending as of that date. To preserve the status quo, DHS will also adjudicate any renewal applications from individuals whose DACA status is scheduled to lapse between September 5, 2017, and March 5, 2018, provided that renewal requests are properly submitted by October 5, 2017.
A number of states and the District of Columbia have filed lawsuits challenging the decision to end DACA. Absent a legislative solution by Congress, new executive action from the Trump Administration, or a favorable decision from the courts, immigrants under the DACA program will begin losing deportation protection and work authorization on a rolling basis after March 5, 2018. Ballard Spahr will continue to provide updates on any legislative or other action.
Employers who have employees authorized to work under the program should be mindful of when such employees' authorizations are scheduled to expire. Employers may also want to consider notifying employees of the deadline to submit renewal applications and putting employees in touch with various organizations that can assist with the required paperwork. Employers may also want to explore with employees alternative means of obtaining legal status.