[NOTE: The following is a client advisory prepared by my law firm this afternoon advising clients and the broader public on the DACA revocation from earlier today]
On September 5, 2017, President Trump announced via a statement from Attorney General Jeff Sessions that he is winding down the Deferred Action for Childhood Arrivals (DACA) program. The DACA program, including associated travel and work benefits, will not terminate immediately. This advisory will help you determine how your being in the DACA program is affected by this news.
DACA is being phased out as follows:
- Those individuals who had not yet been able to file DACA applications (such as people who were not old enough yet) will not be able to file in the future.
- Those with initial applications pending on September 5, 2017 will have their cases adjudicated on a case by case basis as has always been the case for DACA.
- Those who have DACA that will expire between September 5, 2017 and March 5, 2018 (including people expiring on March 5th) will be permitted to file extension applications of up to two years as long as their renewal application is filed on or before October 5, 2017.
- Those with DACA that expires after March 5, 2018 will not be permitted to extend their DACA approvals.
As long as people remain in DACA and don’t violate their DACA eligibility (such as by committing a crime), they are protected from deportation and can continue working.
Individuals who lose their DACA eligibility, will no longer be authorized to work or be insulated from deportation on the basis of DACA. Some individuals may have other options and should consult their lawyer about such possibilities. DHS has indicated that it will not use DACA application data for enforcement purposes except in limited cases where DHS is assisting with a criminal or security investigation, though it has reserved the right to change this policy at any time with no advanced notice.
Some DACA recipients have advance parole documents which permit travel abroad. DHS has indicated that they will no longer adjudicate advance parole I-131 applications for DACA recipients. Those with approved applications can continue to use those travel documents though DHS has noted that CBP officials may make determinations in individual cases that a person is inadmissible and DHS reserves the right to revoke an advance parole document. Note, however that this is already the current law.
Employers need to be cautious about taking adverse actions against DACA recipients. In general, employers are not permitted to “look behind” a valid work card and while an employee has a valid employment authorization document, an employer cannot terminate them or otherwise discriminate against them based on assumptions regarding the ability to continue working for the employer for the long term. Employers who have been told by their employees already that they are in the DACA program should be able to talk to them about subjects like helping the employee with green card sponsorship, transfers abroad, helping with getting access to an immigration lawyer, etc.
The President has indicated the phase in process is designed to allow Congress time to deal with putting in a legislative solution. There are three proposals pending which have been summarized by Greg Siskind on his blog at http://wp.me/p4cKmJ-1h8 . Obviously, given the history regarding congressional action on immigration, Congress approving a legislative fix is far from certain.
Siskind Susser strongly warns people to be careful when it comes to following advice from “notarios” who are non-lawyers practicing law without a license and who are engaging in criminal acts that can result in serious harm to their victims. If you are receiving advice from a non-lawyer, the person should be working for a USCIS accredited non-profit organization.
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