DACA Phase Out: What Employers Need to Know

With mounting pressure from a collection of states threatening legal action, the Trump Administration announced on Tuesday a “wind down” of the Deferred Action for Childhood Arrivals (DACA) program.

Some key details released by USCIS regarding the phase out of the program:

• Effective immediately, no new applicants will be accepted under the DACA program
• Any DACA benefits that are set to expire after March 5, 2018, when the program officially sunsets, will be terminated upon lapsing
• DACA benefits expiring between September 5, 2017, and March 5, 2018, are renewable, but applications for such must be submitted prior to October 5, 2017
• Current pending initial/renewal applications for DACA benefits will be considered on a case-by-case basis

With the Trump Administration’s action, Congress will now be tasked with formulating legislative solutions relative to current DACA beneficiaries. What those future plans entail are uncertain; however, it has been generally understood that DACA beneficiaries will not be a high-enforcement priority even if Congress is unable to reach an agreed upon solution in the next six months.

Important notes for employers:

• Employers can continue to employ DACA beneficiaries during the validity period of the individual’s current Employment Authorization Document (EAD).
• Applications for renewal of EADs relative to DACA benefits can be extended for a period of two years if the current EAD expires prior to March 5, 2018. However, the application for such must be applied for prior to October 5, 2017. All applications after this date will be rejected.
• If a DACA recipient is not eligible for an EAD renewal (i.e., no pending renewal application and current expiration date is not before March 5, 2018) the employee’s lawful work authorization in the U.S. will lapse upon expiration of current EAD. At this point, pending any further legislative actions by Congress in the meantime, the employee will no longer be eligible for gainful employment in the U.S. at the time of expiration.
• DACA beneficiaries can still travel internationally throughout the duration of their advance parole validity. It should be noted, however, that USCIS will no longer approve any DACA-related applications for advance parole effective immediately, and all pending Form I-131 applications from DACA recipients will be denied with filing fees returned.
• Note: Although DACA recipients are eligible for international travel throughout the validity period of their current advance parole, it is suggested that they exercise extreme caution when leaving the U.S. with the intent to return. U.S. Customs and Border Protection (CBP) retains discretion to render decisions on an individual’s admissibility on a case-by-case basis.

Aires will continue to monitor the developments in Congress relative to DACA. Should you have further questions regarding this matter, please contact your Aires immigration representative or immigration@aires.com.