United States: Rescission Of DACA: Faqs For Employers Of DACA Beneficiaries (A.K.A. Dreamers)

Q. When is the DACA program ending?

A. The Trump Administration rescinded the DACA program on September 5, 2017, but is phasing out the program over a six-month period that will end on March 5, 2018.

Q. We have an employee who is a DACA beneficiary who presented a DACA-based Employment Authorization Document (EAD) when completing Form I-9. The EAD is still valid and will remain valid after March 5, 2018. May we continue to employ this individual until the expiration date of the EAD?

A. Yes, you may employ a DACA beneficiary until the end date on his/her EAD.

Q. We have an employee who submitted a DACA renewal application including an application for a new EAD. What will happen to these pending applications?

A. USCIS will continue to adjudicate all properly filed DACA renewal applications, including EAD applications received by October 5, 2017.

Q. We have an employee whose current DACA status will expire by March 5, 2018.  Can our employee still submit a DACA renewal application along with a new EAD application?

A. USCIS will accept properly filed applications until October 5, 2017, for DACA and EAD renewals from applicants whose DACA benefits will expire on or before March 5, 2018.

Q. How can we ensure that our employee has submitted or will submit a "properly filed" DACA renewal and EAD renewal application? 

A. It is prudent for immigration counsel to review the DACA renewal application for sufficiency to ensure it is complete and properly filed since the window for renewal applications is closing on October 5, 2017.

Q. Our DACA beneficiary employee's EAD expires next week and he/she still has not received the new EAD card. If the new card does not arrive by the time the current card expires, may we continue to employ this individual?

A. No, there is no "grace period" for continuing to employ a DACA beneficiary with a pending EAD renewal application beyond the end date on his/her EAD. You must take the employee off payroll the day after the EAD expires but the employee can resume employment upon presenting a new, valid EAD.

Q. Our employee's DACA status will expire after March 5, 2018, and he/she has not yet submitted a renewal application. May our employee still submit a DACA renewal application along with an EAD renewal application?

A. We doubt that USCIS will accept a DACA renewal application or related EAD application if the applicant's DACA status and EAD is invalid beyond March 5, 2018.  With this caveat, and understanding that the application will likely be rejected, there should not be a downside to attempting to renew the DACA status.

Q. Is it safe for our DACA beneficiary employee to travel abroad?

A. Generally we recommend that DACA beneficiaries do NOT leave the United States, even if they have valid Advance Parole documents.

Q. We would like to sponsor our DACA beneficiary employee for a work visa and/or permanent residence. Are we permitted to do so?

A. Whether a DACA beneficiary is eligible for a temporary work visa or for permanent residence requires immigration counsel to conduct an in-depth analysis. If you wish to sponsor your employee for a work visa or for permanent residence, consult your Mintz Levin immigration attorney who will conduct an in-depth analysis of the employee's eligibility for non-DACA immigration benefits.

Q. Our DACA beneficiary employee is planning to marry a U.S. citizen. Will he/she be able to secure lawful permanent residence status based on marriage to the U.S. citizen?

A. Whether the DACA beneficiary will be able to secure permanent residence status as a result of marrying a U.S. citizen requires an in-depth analysis by immigration counsel. If you have an employee in this situation, it is prudent for the employee to seek counsel before taking any steps to file for a non-DACA immigration benefit.

Q. Is there a chance that the law will change between now and March 5, 2018, so that DACA beneficiaries will be protected and able to stay in the U.S.?

A. It is unlikely that the Trump Administration will take any actions to protect DACA beneficiaries and other Dreamers beyond what was announced on September 5, 2017. If by March 5, 2018, Congress passes, and the President signs, legislation that protects DACA beneficiaries and offers them a pathway to regularize their immigration status, then it is likely they will be eligible to remain legally in the U.S.

Q. What happens if Congress passes legislation to protect DACA beneficiaries but it happens after March 5, 2018?

A. If legislation is passed and signed into law to protect the DACA beneficiaries and other Dreamers, it is likely that most will be able to benefit from the new law and remain in the U.S.  However, some DACA beneficiaries may be vulnerable to removal/deportation in the interim period. While the Trump Administration has stated that it will not prioritize removing DACA beneficiaries from the U.S., if their DACA status has lapsed and they are brought to the attention of Immigration and Customs Enforcement (ICE), they will likely be processed for removal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Susan J. Cohen
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