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Deferred Action for Childhood Arrivals Program is Rescinded, AG Sessions Announces

By Amy L. Peck, Michael H. Neifach and Marcela A. Mendoza
  • September 6, 2017

The Deferred Action for Childhood Arrivals (DACA) program is being rescinded, Attorney General Jeff Sessions announced on September 5, 2017.

The DACA program was implemented in 2012 by an executive order signed by President Barack Obama. Under the program, certain individuals who arrived in the United States as children are eligible for DACA protection and corresponding employment authorization. Approximately 800,000 individuals have been granted deferred action under the program.

The Department of Homeland Security issued preliminary guidance describing how DACA cases will be handled. It also released a Frequently Asked Questions document.

DHS said the government will:

  • Adjudicate on a case-by-case basis initial and renewal DACA petitions filed and accepted as of September 5, 2017, including applications for Employment Authorization Documents (EADs) pending review.
  • Adjudicate on a case-by-case basis applications filed no later than October 5, 2017, from current beneficiaries whose DACA status will expire before March 5, 2018.
  • Not terminate grants of previously issued deferred action or revoke EADs solely based on the rescission directives for the remaining duration of their validity periods.
  • Reject all new DACA initial requests and associated applications for EADs.
  • Not approve any new Form I-131 applications for advance parole (travel authorization) under standards associated with the DACA program.
  • Administratively close all pending Form I-131 applications for advance parole filed under the DACA program and refund all associated fees.

Practical Guidance for Employers

Most DACA recipients are employment age and have received work authorization. Therefore, employers should pay close attention to the upcoming DACA deadlines. The hospitality, retail, and construction industries, which are estimated to employ nearly half of DACA-eligible individuals, are expected to be particularly affected, The Washington Post noted.
 
Employers also should be aware of the following:

  • Employees who currently hold work authorization based on DACA will continue to be authorized to work based on a valid EAD.
  • Employees with DACA/EAD expiration dates before March 5, 2018, may be encouraged to file to renew their status prior to October 5, 2017. Employers considering sponsoring DACA/EAD holders for employment-based permanent residency should act immediately, keeping in mind that employees with prior unlawful presence may require a waiver of inadmissibility.
  • Employees in DACA status should carefully consider and review travel plans. Although DHS stated “it will generally honor the validity period for previously approved applications for advance parole,” admitting officers at the port of entry have broad discretion to deny admission.
  • DHS’s U.S. Citizenship and Immigration Services (USCIS) is only adjudicating DACA extensions and the corresponding EAD renewal requests that have been received or that are received by October 5, 2017. Those that are received between September 5 and October 5 will be accepted only if they are from applicants who already have valid, approved DACA/EAD status that expires between September 5 and March 5, 2018.

Congress

With the rescission of the DACA program, the onus shifts to Congress to agree upon a legislative solution. Bills that would create DACA-like protections by statute being considered in Congress include:

  • Dream Act, sponsored by Senators Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.)
  • Recognizing America’s Children (RAC) Act, sponsored by Representative Carlos Curbelo (R-Fla.)
  • Hope Act, sponsored by Representative Luis Gutierrez (D-Ill.)
  • BRIDGE (Bar Removal of Individual Who Dream and Grow our Economy) Act, which Representative Mike Coffman (R-Colo.) plans to bring to the floor in the House

We will provide updates on any legislative progress. If you have any questions regarding the rescission of DACA, please contact the Jackson Lewis attorney with whom you regularly work.

©2017 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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