The Rescission of the DACA Program

On September 5, 2017, President Trump announced that the Deferred Action for Childhood Arrivals (“DACA”) program will be ending. DACA was put in place by the Obama Administration in June of 2012. It provided a period of deferred action from deportation for people illegally present in the United States who had entered the United States before the age of 16 — commonly called “Dreamers.” DACA also allowed eligible participants to apply for both Employment Authorization and special Travel Authorization called Advance Parole from the United States Citizenship and Immigration Services (“USCIS”). Over the past several years, almost 800,000 people have applied for deferred action under DACA. President Trump’s order provides for a phase out of the DACA program and the President has suggested that he would support Congressional action to provide permanent protection for Dreamers. That being said, given the inability of Congress over the past decade to come together on any immigration legislation, the likelihood of a legislative DACA replacement is not high.

The following is a list of the key components of the phase out of DACA:

1. If You Do Not Already Have DACA or a DACA Application Pending, then as of September 5, 2017, You Can No Longer Apply.

Effective as of the end of the day on September 5th, USCIS will no longer accept new applications for DACA. Note, however, under certain circumstances, USCIS will accept DACA extensions, as described below.

2. If You Have DACA and Employment Authorization That Expires on or Before March 5, 2018.

If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017. Note, however, that in the absence of a legislative fix or some other action by the President, there will be no further renewals of your DACA or work permit after this 2-year extension. Note also that as described below, USCIS is not accepting applications for Advance Parole and will only process the applications for DACA and a work permit.

3. If You Have DACA and Employment Authorization That Expires After March 5, 2018.

If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension. Absent a legislative fix your DACA, work authorization, and protection from deportation will expire on the date shown on your existing DACA approval notice and work permit.

4. If You Have a DACA Application Pending By the End of Day on September 5, 2017.

If you have a new DACA application or extension that was received at USCIS on or before September 5, 2017, your application will continue to be processed. This means that you will get a 2-year grant or extension of DACA and your work permit, but in the absence of a legislative fix or some other action by the President, your DACA and work permit validity will end at that point. Additionally, as will be described below, if you have a pending application for Advance Parole, processing will be closed and the filing fee will be refunded.

5. If You Have DACA and a Valid Advance Parole Travel Document.

If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the Travel Document expires. However, even with a valid Travel Document, CBP can still refuse to let you in under certain circumstances. Traveling on DACA Advance Parole is risky and before doing so, you should speak to a qualified immigration lawyer.

6. If You Have an Advance Parole Travel Document Application Pending.

USCIS will no longer process or approve applications for Advance Parole Travel Documents for DACA recipients. If you have an application for DACA-based Advance Parole pending as of September 5, 2017, USCIS will close the application and return the filing fees to you.

The future for Dreamers is not clear at all. The President suggests he supports some form of legalization or permanent deferred action and has stated that the deportation of Dreamers is not a priority, but his positions both on the campaign trail and on other immigration issues would suggest otherwise. While Congress could pass legislation that would help, the time frame for this (essentially March 5, 2018) is short. Finally, an important open issue is whether the Administration will use the information that has been gained from DACA registrations to aggressively seek to deport Dreamers even though the DACA program promised not to use the information in this way.

To discuss this issue further, please contact Donald Parker, immigration attorney with Parker Gallini LLP.

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