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THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) HAS BEEN RESCINDED

Some of you may recall that the DACA program was implemented in 2012 by an executive order signed by President Barack Obama. Under the DACA program, certain people who entered the U.S. as children were eligible for DACA protection and corresponding employment authorization. Around 800,000 individuals have been granted deferred action under the program.

On September 5, 2017, Attorney General Jeff Sessions announced that DACA is being rescinded.

So far, the Department of Homeland Security has issued some guidance describing how DACA matters will be addressed by the government:

• Initial and renewal DACA petitions filed and accepted as of September 5, 2017, including applications for Employment Authorization Documents (EADs) pending review will be adjudicated 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, will be adjudicated on a case by case basis.

• The government will not terminate grants of previously issued deferred action, nor will the government revoke EADS only based on the rescission directives, for the remainder of their validity periods.

• The government will not end grants previously issued deferred action or revoke EADs solely based on the rescission directives for the remaining duration of their validity periods.

• The government will reject all new DACA initial requests and new associated applications for EADs.

• No new Form I-131 applications for advance parole (travel authorizations) will be granted approval, under standards associated with the DACA program.

• All currently pending Form I-131 applications for advance parole filed under the DACA program will be administratively closed, and all associated fees paid, will be refunded.

Employees in DACA status should carefully consider and review travel plans. Although the government has 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 back into the U.S.

Employers need to be aware that if they have employees who hold work authorizations based on the DACA program, these employees will continue to be authorized to work based on a valid EAD.

Employers who are considering sponsoring DACA/EAD holders for employment-based residency should take action right away, noting that employees with prior unlawful presence, might require a waiver of inadmissibility.