Tag Archives: DACA

How Will the End of the Deferred Action For Childhood Arrival (DACA) Affect Employers?

Contributed by Sara Zorich, September 14, 2017

On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”

Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without documentation, yet met several guidelines, could request consideration of deferred removal proceedings and request authorization to live and work in the United States legally. Currently, the program shields around 800,000 young undocumented immigrants from deportation and allows them to work legally.

U.S. Citizenship and Immigration ServicesU.S. Citizenship and Immigration Services (USCIS) issued new guidance on their website as of September 5, 2017 regarding initial DACA requests and DACA renewals. Here are the key points to note:

  • DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement
  • No new DACA applications will be considered, but applications filed by September 5, 2017 will still be processed
  • Current DACA recipients whose permits and or work authorization expires between now and March 5, 2018, have until October 5, 2017 to apply for renewal of these benefits

In light of this change, employers are recommended to review their Form I-9’s and identify any individual whose work authorization is going to expire on or before March 5, 2018. Employers should notify these employees of the date their work authorization will expire and remind them that the company cannot continue to employ the employee past this expiration date unless the employee is able to provide proof of continued work authorization. To reiterate, any DACA renewals must be filed no later than October 5, 2017 or USCIS will not process them. Read the USCIS announcement for details.

However, some Employment Authorization Document (EAD) categories (other than DACA) have been granted a 180 day automatic extension to the employee’s work authorization deadline. Visit the USCIS website for more information on the eligibility requirements for the Automatic Employment Authorization Document (EAD) Extension. Thus, employers must be careful to follow the applicable guidelines when addressing the proper end date of an employee’s work authorization and reauthorization requirements.

Final Takeaway: Employers must understand that they MAY NOT discriminate and cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.

We anticipate that Congress may now attempt to fast track some type of immigration reform related to those persons that were formerly covered under DACA, but only time will tell.

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.