USCIS announced on September 5, 2017, that they are phasing in a rescission of the Deferred Action for Childhood Arrivals program (DACA). The DACA program began in 2012 and granted temporary status and work permits to the “dreamers” who came here as children without visas. Here’s a summary of how the new rules will impact your employees that have DACA status:

  • First-Time DACA Requests: All initial requests for DACA status will be rejected. However, as a practical matter, 99% of the people who qualified for DACA presumably have already filed previously.
  • Current DACA and EAD holders: Those currently holding DACA status and that have employment authorization documents (EAD’s) can continue to use them through the end of their EAD validity. Their employer will not need to prematurely terminate them. If Congress extends DACA before their EAD expires, then they could re-file for a new work permit and upon issuance of the new EAD, then have their I-9 re-verified.
  • Renewals: For those whose DACA and EAD will expire in the next 6 months — on or before March 5, 2018 — they can apply now to renew their DACA and EAD – presumably for 2 years validity however the Administration has not confirmed that it will be for 2 years. The deadline for them to file is October 5, 2017. No renewal applications will be accepted after October 5, 2017.
  • Those Not Eligible for Renewals: Those who currently have EAD’s that will expire on March 6, 2018 or later will not be able to file renewal applications. But their current EAD’s will be good until they expire.
  • Sunset: DACA will completely sunset by March 4, 2020, and much sooner for most DACA holders.
  • Travel: For those who have an approved advance parole travel document, they may use it, but must of course re-enter the U.S. before the expiration date. For those who have pending applications for an advance parole travel document, they will be cancelled and the filing fee refunded.
  • No Automatic EAD Extensions: As in the past, there is no automatic extension of a DACA EAD –which has the code “c (33)” on it. The employee will therefore need to show their employer a new EAD before the expiration of their current EAD in order to keep working.

Background Information: For additional information, see here.

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Greg Berk is a special counsel and part of the Labor and Employment Practice Group at SheppardMullin. He is based in Orange County, California, where he leads the firm's immigration practice.  He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization. This article first appeared on the Labor & Employment Law Blog.