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Sep 6, 2017

DACA RESCINDED WITH WIND-DOWN PROVISIONS

Dana Imperia, Calyn Arnold and Jonathan A. Grode

Attorney General Jeff Sessions formally announced the termination of the Deferred Action for Childhood Arrivals (DACA) program today, with “wind-down” provisions specifying how the program will be dismantled in preparation for its full expiration on March 5, 2018.  The DACA program provides work authorization to nearly 800,000 foreign nationals who entered the U.S. as children, have completed high school or a GED program, have passed a background check and do not otherwise have lawful status.    The six-month wind-down procedures are meant both to give Congress the opportunity to respond with legislation for immigration reform and to more efficiently bring the program to a close.

What this means for DACA holders and DACA applicants is as follows:

  • No initial DACA applications will be received or adjudicated after today.  All initial DACA applications received after today will be rejected;
  • Those who currently hold DACA status will be able to maintain their status and work authorization to their expiration date;
  • USCIS will continue to adjudicate pending and properly filed renewal applications;
  • USCIS will continue to accept and adjudicate all renewal applications from current beneficiaries whose benefits expire between today and March 5, 2018, if the application has been received by USCIS by October 5, 2017; and
  • For DACA holders who currently hold advance parole (permitting foreign travel), that permission will remain valid as per the parameters as stated on your approval.  However, all pending applications for advance parole will be administratively closed and filing fees will be refunded.  No new applications for advance parole will be accepted.

It is still unclear whether pending applications or soon-to-be-filed applications that are approved will be given the full two-year period of work authorization previously granted under DACA, or whether new work authorizations will expire on the program’s end date of March 5th, 2018.

While any former DACA beneficiary who falls out of lawful status will be at risk of deportation, it is unclear whether ICE will actively pursue former DACA beneficiaries. On the one hand, USCIS stated today that information collected through DACA requests “will not be proactively provided to other law enforcement entities.” However, Department of Homeland Security officials also stated that there will be “no specific guidance” to current or former DACA beneficiaries from removal proceedings.  In general, it is unclear how ICE enforcement will change in response to the expiration of DACA beneficiaries’ statuses and the shifting priorities of the Trump administration.

For employers, the news of a potential loss of approximately 800,000 DACA beneficiaries could have a severe and detrimental effect on their work force and the economy. As employers are required to ensure the legality of their staff through the I-9 process, it is recommended that employers take a careful review of their existing workforce and create a DACA strategy for both business and the individual employees affected.

Despite the fact that Trump’s decision to end DACA was made in part as an effort to fulfill a campaign promise, the decision has many critics from both parties. Green and Spiegel implores Congress to act quickly and decisively to protect the lives of countless young immigrants who have been raised in the United States and consider this country their only home.

Green and Spiegel continues to monitor the response to this decision carefully.  If you hold DACA status or are an employer with DACA staff members and have questions, you can contact us here.  

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