Trump Cancels DACA Program: What It Means for DACA Recipients and Their Employers
On September 5, 2017, the Trump Administration announced its decision to cancel the Deferred Action for Childhood Arrivals (“DACA”) program. This program was created by the Obama Administration in June 2012 to provide certain undocumented persons who entered the United States prior to age 16 protection from deportation/removal, and eligibility to apply for employment authorization and international travel authorization. The Trump Administration’s stated reason for terminating DACA is its belief that the program was created beyond former President Obama’s executive authority, and is therefore unconstitutional.
In order to ensure a proper “winding down” of the program for the roughly 800,000 DACA recipients, Attorney General Jeff Sessions announced that the DACA program will be “phased-out” over a six-month period starting September 5, 2017 and ending March 5, 2018. According to the Administration, this will allow Congress time to enact legislation to replace DACA as a part of more comprehensive immigration reform legislation, if Congress chooses.
The announcement canceling DACA leaves many unanswered questions on how DACA recipients will be affected both during and after the “winding down” period. We have provided FAQs below which provide the answers we do know, and we will provide additional information as it becomes available.
Q: Will DACA recipients immediately lose DACA benefits on March 5, 2018?
A: No, but this policy could change. According to the Department of Homeland Security (“DHS”)’s Memorandum on the rescission of the DACA program released on September 5, 2017, DHS will not terminate or revoke previously issued DACA benefits based solely on the rescission of the DACA program. Current DACA recipients will be able to retain the validity period of deferred action and employment authorization until expiration, unless USCIS determines termination is appropriate.
Q: Will USCIS reject any pending DACA applications?
A: Probably not. Although the USCIS will reject new DACA applications, according to the DHS’ announcement, it will continue to process DACA applications and DACA renewal applications that were accepted as of September 5, 2017. Deferred action and employment authorization under the DACA program are generally granted for a two-year period.
Q: How will the USCIS handle extension applications set to expire between September 5, 2017 and March 5, 2018?
A: According to the DHS, DACA recipients whose current DACA grant and associated employment authorization document are set to expire within the 6-month period between September 5, 2017 and March 5, 2018, are still eligible to file a request for DACA renewal and renewal of the associated employment authorization until October 5, 2017. Any requests for renewals filed after October 5, 2017 will be rejected.
Q: Will a DACA recipient still be able to travel outside the United States with an advance parole travel document, and reenter before the expiration of their travel document?
A: Yes, but this policy could change, as all attempts to reenter the United States with advance parole are subject to DHS discretion, and reentry is not guaranteed.
The DHS Memorandum released September 5, 2017 states that USCIS will not accept or approve new or pending applications for advance parole under the DACA program, and any pending applications will be administratively closed and fees refunded to the applicants.
Previous grants of advance parole will still retain the validity period until expiration. However, the DHS stated that the USCIS retains the authority to revoke or terminate an advance parole document at any time, and entry with advance parole into the United States is at the discretion of the DHS’ Custom and Border Patrol (“CBP”). We strongly recommend that any DACA recipient contact our office or other qualified immigration attorney prior to leaving the country.
Q: Will USCIS refer DACA recipients to ICE for deportation/removal after the validity period of already-granted DACA benefits expire?
A: No, but this could change at any time. After the validity period of a DACA grant and the associated employment authorization document expires, the individual will no longer be protected from deportation/removal or eligible for lawful employment. Although the DHS FAQ says it will not use information collected from the DACA program to deport DACA recipients, it qualifies this statement by saying that the policy can change at any time, and without notice.
Q: Will legislation be passed by Congress to replace DACA before the March 5, 2018 deadline?
A: We do not know. The Trump Administration has hinted that any DACA-replacement bill would be vetoed unless it is part of a more comprehensive enforcement-minded immigration bill. Given Congress’ failure to pass comprehensive immigration reform over the last decade, and the Trump Administration’s lack of legislative successes thus far, it is far from certain that Congress will be capable of enacting a new law to protect DACA recipients by the March 5, 2018 deadline.
For further details on the DACA program termination, please see FAQs published by DHS here or contact our office.