DACA Rescission: What you Need to Know

By Tejas Shah, Karlie Dunsky, and Mary Deweese* - Franczek Radelet P.C.

September 6, 2017

On September 4, the Attorney General sent a letter to the Department of Homeland Security (DHS) informing DHS of his determination that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional. On September 5, DHS published a memorandum terminating the DACA program.  This announcement has significant consequences for DACA recipients, educational institutions, and the employers of DACA recipients. The following are answers to questions that are likely to arise.

Is an existing DACA recipient at immediate risk of removal or deportation?

No. The DACA program termination does not call for the revocation of currently-issued DACA benefits, which are generally valid for two years. Any DACA recipient whose status is set to expire between now and March 5, 2018 is eligible to have a renewal application accepted on or before October 5, 2017.

Once a DACA recipient’s status expires, he or she is no longer eligible for deferred action.

Is a DACA recipient’s Employment Authorization Document rendered immediately invalid due to this announcement?

No current DACA recipient who is authorized to work in the United States will lose such authorization due to the DACA program’s termination. A DACA recipient whose work authorization is set to expire between the date of this announcement and March 5, 2018 should file a renewal request and associated application for Employment Authorization Documents (EAD) before October 5. DACA recipients whose work authorization expires after March 5 are currently unable to file for a renewal, but will retain their authorization until it expires.

DACA beneficiaries have work authorization of limited duration. When such protection expires, they will not qualify for continuing work authorization unless they independently qualify for an immigration benefit.

What can an employer legally do if it employs a current DACA recipient?

Current DACA recipients will retain their work authorization at least through March 5, 2018. Employers are advised not to take actions such as attempting to identify DACA recipients based on I-9s or making personnel decisions based on a potential loss of work authorization, as such actions could violate federal non-discrimination laws and result in a charge of employment discrimination.

What should an individual do if his or her DACA protection will terminate prior to March 5?

DACA recipients whose benefits will expire on or before March 5, 2018 are eligible to file for renewal. U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed DACA renewal requests and association applications for EADs that are accepted as of October 5, 2017. Any request received or filed after October 5 will be rejected. As such, current DACA holders whose status will expire on or before March 5 should file a renewal request as soon as possible. However, such requests will be adjudicated on an individual, case by case basis with no guarantee that the renewal will be granted. It is unclear whether the USCIS will change its adjudication criteria and its exercise of discretion in light of this announcement.

Renewal requests will not be accepted for individuals whose DACA status expires after March 5.

What should an individual do if he or she is eligible for DACA protection but never applied?

Effective immediately, initial DACA requests and associated applications for EADs will no longer be considered. An individual eligible for DACA protection who has never applied for such protection is ineligible to apply now.

What happens to an initial DACA application that has already been filed?

USCIS will adjudicate any initially filed DACA applications that were receipted as of September 5, 2017. As noted above, it will not accept any new, initial DACA applications filed after this date.

Can a DACA recipient with travel authorization still travel abroad?

DACA recipients have been eligible to apply for Advance Parole, which is essentially advance permission to travel abroad based on certain compelling circumstances, with the likelihood of readmission to the U.S. Effective immediately, new applications for Advance Parole will not be approved, and pending applications will be refunded and rejected. Previously-approved Advance Parole applications will be honored; however, U.S. Customs and Border Patrol (CBP) retains the discretion to determine admissibility of any person presenting at the border.

What is the deadline for submitting DACA renewal applications?

Current DACA beneficiaries are eligible to retain their DACA status through its expiration (unless otherwise terminated or revoked by immigration officials). DACA renewal requests and associated applications for EADs that were properly filed and accepted as of September 5 will be considered on a case by case basis. Individuals whose DACA status expires between September 5 and March 5 may file for renewal by October 5 to request adjudication of the renewal on a case by case basis.

Will information on DACA recipients whose benefits expire be provided to immigration enforcement?

DACA applicants have submitted extensive documentation of their presence to USCIS to obtain benefits. DHS has stated that USCIS will only proactively provide information it receives from DACA recipients and applicants to Immigration and Customs Enforcement (ICE) or CBP where the requesting agency meets the criteria for the issuance of a Notice to Appear or a referral to ICE.  However, DHS has explicitly stated that this policy may be modified, superseded, or rescinded at any time without notice. While DHS may still honor this existing policy, ICE has eliminated existing priority enforcement memorandums under the new administration. Thus, a former DACA recipient that comes in contact with ICE agents separately could be detained and placed in removal proceedings as an individual lacking lawful status in the U.S. 

Do DACA recipients have any other legal options to remain in the United States?

Individual DACA recipients may be eligible for another lawful status in the United States based on marriage, employment, or on other humanitarian grounds. All DACA recipients are encouraged to seek legal advice about their options in the United States.

Is there a legislative solution for DACA recipients?

The 6-month window in the DACA announcement is ostensibly designed to provide a window for Congress to act. There are currently multiple legislative proposals in Congress that would address the status of DACA recipients – institutions and individuals who wish to take a position on such efforts are encouraged to contact their local representatives.

Where can I find more information?

DHS has published a FAQ at: https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca.

*Mary recently joined the firm as an attorney and is currently licensed to practice law in the District of Columbia.