President Trump rescinded the Deferred Action for Childhood Arrivals (DACA) program today, September 5, 2017. The program, originally put into place on June 15, 2012, gave people who had entered the U.S. as children and satisfied certain qualifications the ability to work in the U.S. in return for registering with the government. The program has allowed more than 800,000 young people to enter the workforce or attend college with the hope of working when they graduate.
DACA process now
Going forward, the following procedures will be followed:
- Pending DACA/EAD (employment authorization document) applications and renewal requests will be processed;
- All new initial DACA/EAD requests will be rejected;
- New renewal requests will be accepted from current DACA holders whose EAD expires by March 5, 2018, if they are filed by October 5, 2017. All other renewal requests will be rejected.
- All pending applications for advance parole (travel documents) will be closed and filing fees refunded;
- Currently valid advance paroles will be honored at the discretion of Customs and Border Protection (CBP);
- Current DACA status and EADs will continue to be valid (DACA status will not be terminated) generally. However, the government has discretion to terminate DACA in certain situations. DACA itself is not a protection from removal (deportation).
Please also review the FAQ released by the government.
What should employers do?
In the short run:
To complete the I-9, DACA recipients would have presented valid EADs (employment authorization documents) with an expiration date. The rescission of DACA is not grounds to check documents or make personnel decisions at this time.
In the ordinary course of I-9 compliance, DACA EADs will expire. As with any expiring work authorization document, employers should provide the employee the opportunity to present a new valid work authorization document. If one is not available, employment must be terminated.
Employers should encourage any DACA recipients who qualify to apply for an EAD extension by October 5, 2017. Note that only those with EADs that expire by March 5, 2018, are eligible to apply. Also, remember that a DACA EAD is not automatically extended. A new valid EAD is required for the employee to continue working.
For the long run:
Employers who will lose valued workers because of the termination of this program should reach out to their members of Congress immediately. The Dream Act of 2017 has been introduced in both the House and the Senate (H.R. 3440 and S. 1615). Passage of this or a similar law would provide a permanent fix to this untenable situation.
We cannot emphasize enough the importance of phone calls or personal meetings if DACA employees are important to your business. Many people will be lobbying Congress to prevent a legislative solution.
We stand ready to assist you in any way in this effort. Our government relations attorneys can arrange calls or meetings, and we can provide coaching on messaging as well.
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