On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program.
DACA was implemented in 2012, through an executive order by former President Barack Obama. DACA allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action. In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S. Currently, about 800,000 individuals are participating in the DACA program. The Trump administration’s decision to phase out the DACA program will end the work authorization of DACA beneficiaries and open the doors for their deportation.
The DACA program is scheduled to end in six months, on March 5, 2018. As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new DACA/work permit applications. Individuals whose DACA/work permit expires prior to March 5, 2018 may apply for a two-year renewal, but their application must be received by the DHS on or before October 5, 2017.
Meanwhile, for planning purposes, employers may wish to identify those individuals who are employed pursuant to DACA work permits by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file. The individuals with DACA work permits will have EADs with a “C33” category and will remain employment authorized until the expiration date of their EADs. Employers must reverify the employment authorization of these employees by completing Section 3 of Form I-9 no later than the expiration dates on the EADs. Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed.
As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts. On September 6, 15 states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination. There is also the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program. We will provide you with updates regarding the status of the DACA program as they become available.