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Alerts and Updates

DACA Program Ending, but Work Permits Remain Valid

September 6, 2017

DACA Program Ending, but Work Permits Remain Valid

September 6, 2017

Read below

“[T]he Department will provide a limited window in which it will adjudicate certain requests for a DACA and associated applications meeting certain parameters.”

On September 5, 2017, the Department of Homeland Security (Department) announced that the Deferred Action for Childhood Arrivals (DACA) program will be ending. Specifically, President Trump rescinded the June 15, 2012, executive order issued by President Obama. In a memorandum issued with the rescission order, the Department announced how the program will be phased out.

Although the DACA program has been officially rescinded, the memorandum from USCIS provides many helpful provisions to current DACA holders, initial applicants with pending applications and those who will need a renewal in the next six months. The memorandum is clear that all current work permits remain in effect and will not be revoked. The memorandum even allows those with permits that expire in the next six months to be granted an additional extension.

The memorandum states, “Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for a DACA and associated applications meeting certain parameters.” The memorandum places DACA applicants and recipients into several categories:

  1. Those who have filed their initial request as of September 5, 2017;
  2. Those who have extension applications pending as of September 5, 2017; and
  3. Those whose current DACA status will be expiring on or before March 5, 2018.

Initial Applications Currently Pending

For the first category of applicants, those who have initial DACA applications currently pending, the memorandum makes clear that USCIS will adjudicate those applications on a case-by-case basis, as they normally do. Although not clear from the memorandum, it appears that USCIS will continue to grant two-year Employment Authorization Documents to applicants during this transitional period. Therefore, first-time DACA applicants, who already filed their applications, could expect to receive an approval with an Employment Authorization Document valid for two years from the date of their approval.

Note that, as of September 5, 2017, USCIS will not accept any new DACA initial requests. This means that if an applicant has never applied for DACA before, but is eligible, he/she cannot now apply.

Extension Applications Currently Pending

For the second group of applicants, those with pending extension applications, USCIS will continue to make decisions as it normally would in the regular course of business. Although not confirmed, but implied, extensions for two years will continue to be granted as they have since the program’s inception.

DACA Expiring Before March 5, 2018

For the third group of applicants, those who currently have DACA status that will expire on or before March 5, 2018, they can now file applications for extensions of their current status and work authorization cards. However, these applications must be submitted to USCIS on or before October 5, 2017. Although not stated directly, but implied, it appears that applicants in this category will also receive a two-year Employment Authorization Document upon approval of the extension request.

Current Work Permits

USCIS is not terminating any currently approved deferred action status or work permit. All currently issued work permits under DACA will remain valid for the duration listed on the document.

Advance Parole Ended

The memorandum also states that USCIS will no longer grant Advance Parole to any DACA recipient. The agency will be closing all currently pending applications and states that it will refund all fees paid by DACA applicants for Advance Parole. Similarly, it will not accept any new Advance Parole applications from DACA holders. However, it does note that previously issued Advance Parole documents may remain valid and are not automatically being revoked or rescinded. If a DACA recipient has an advance parole, he or she should consult an immigration attorney to determine whether travel is advisable under these new conditions.

I-9s and Employers

Employers do not need to do anything different with regard to DACA employees. All work permits presented at the time of hire and reverification for I-9 purposes remain legally in effect until the ending date of the work permit document. Reverification in the normal course of business, at the conclusion of the date on the previously submitted work permit, will alert the employer to any upcoming ending dates for DACA recipients’ work authorization documents.

Additional information and agency reaction to this memorandum will be available in the coming weeks and as USCIS continues to adjudicate currently pending DACA applications. Duane Morris will continue to monitor all of the developments and provide updates as necessary.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are in regular contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.