January 26, 2021

Volume XI, Number 26


January 25, 2021

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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.

Copyright © by Ballard Spahr LLPNational Law Review, Volume VII, Number 256



About this Author

Louis Chodoff, Labor, Employment, Harassment, Discrimination, Ballard Spahr, Law FIrm

Louis L. Chodoff handles labor and employment law counseling and litigation associated with harassment, discrimination, wage and hour, whistleblower, wrongful discharge, and restrictive covenant disputes.

Mr. Chodoff litigates in state and federal courts as well as in various administrative agencies such as the New Jersey Department of Labor, New Jersey Division on Civil Rights, New Jersey Office of Administrative Law, Pennsylvania Human Relations Commission, and the Equal Employment Opportunity Commission. He counsels his clients on the employment and labor law implications of...

Amy Bashore, Litigator, Employment Discrimination, Ballard Spahr Law Firm, New Jersey

Amy L. Bashore represents employers in all aspects of employment law. Ms. Bashore regularly litigates employment discrimination claims, wage and hour lawsuits, common law claims, and disputes regarding non-competition/non-solicitation agreements. She has served as second chair at several trials involving claims of retaliation, discrimination, and breach of contract.

Ms. Bashore is also experienced in counseling clients on a variety of workplace issues, including employee hiring, performance management and termination, reductions in force, OSHA issues, creating and implementing...

Katherine Atkinson, Employment, Litigator, Philadelphia, Ballard Spahr, Law Firm

Katherine J. Atkinson represents public and private employers in employment litigation involving claims under federal and state law. Her practice also focuses on counseling employers on a wide range of labor and employment issues.

Ms. Atkinson assists clients in the development and implementation of personnel policies, drafts employment agreements, conducts workplace trainings for employees, and advises clients on compliance with various employment laws, including Title VII, PHRA, FLSA, ADEA, FMLA, ADA, and the Pennsylvania Wage Payment and Collection Law. Ms. Atkinson also counsels...