Update: On January 9, 2018, a federal district judge ordered the Department of Homeland Security (DHS) to resume the DACA program while the legal challenges to the current administration’s rescission of DACA continue. The order allows foreign nationals who have obtained DACA benefits to renew such protections, but does not require DHS to accept first-time DACA applications. DHS has not issued any updated instructions on accepting DACA applications under the order. For any questions related to a specific case and potential strategies and alternatives, please feel free to reach out to us. We will continue to monitor and provide updates as additional information is available and if Congressional action is taken.
Update: On November 15, 2017, USCIS reversed the rejection of DACA renewal applications that were delayed by the U.S. Postal Service (USPS). Although DACA was rescinded, USCIS was permitted to continue to authorize DACA extensions received by DHS on or before October 5, 2017, as noted below. However, USCIS previously rejected filings that were delivered after October 5, 2017, due to USPS mailing error. Applicants that submitted DACA renewals but whose filings were rejected due to USPS error are now being accepted by USCIS when accompanied by individualized proof of USPS mail service error. Further, USCIS is reaching out to additional applicants that received erroneous rejections of their filings that were delivered before the renewal deadline. For any questions related to a specific case and potential strategies and alternatives, please feel free to reach out to us. We will continue to monitor and provide updates as additional information is available and if Congressional action is taken.
Update: On September 5, 2017, Attorney General Jeff Sessions announced that DACA is being rescinded. In his announcement, Attorney General Sessions deferred to the Department of Homeland Security (“DHS”) to effectuate the rescission. Accordingly, DHS issued a memorandum rescinding DACA and indicating that they will act as follows:
- DACA Initial Requests with Employment Authorization Document (“EAD”) Requests to be Rejected. DHS will adjudicate properly filed DACA initial requests and associated EAD filings that have been accepted as of September 5, 2017. Initial requests and associated EAD requests will be rejected effective September 5, 2017.
- DACA Renewals with EAD Requests for 6 Month Window. DHS will adjudicate DACA renewals and EAD requests for individuals whose benefits expire between September 5, 2017, and March 5, 2018, that are accepted by DHS by October 5, 2017. DHS will reject requests that do not align with the above.
- Existing DACA and EADs Remain Intact. DHS will not terminate previously granted DACA requests or EADs for the remainder of their validity periods.
- Advance Parole for DACA Applicants Rejected. DHS will not approve any new Advance Parole documents and will close Advance Parole petitions currently pending for DACA beneficiaries, but will generally honor Advance Parole documents that have been granted with the caveat that either U.S. Customs and Border Protection or U.S. Citizenship and Immigration Services may choose to not accept, revoke, or terminate an Advance Parole document at their discretion.
DHS also indicates that it will retain discretionary authority on terminating or denying current DACA grants. Employers should carefully note the expiry listed on any EADs used for employment and should continue to follow I-9 re-verification procedures as the EADs expire. If employees are unable to provide documentation of work authorization at the time of re-verification, action regarding the individual’s employment may need to be taken. For any questions related to a specific case and potential strategies and alternatives, please feel free to reach out to us. We will continue to monitor and provide updates as additional information is available and if Congressional action is taken.
Update: On June 29, 2017, a letter from Texas Attorney General Ken Paxton and several other State Attorneys General to U.S. Attorney General Jeff Sessions requested the elimination of DACA and DAPA. The letter specifically requests that Attorney General Sessions agree to rescind the Obama Administration’s memorandum that established the DACA and DAPA programs by September 5, 2017, in return for dropping the lawsuit noted below. If the request is granted, individuals that are currently working pursuant to DACA or DAPA may be required to cease employment immediately once the DACA and DAPA memorandum is rescinded. We will continue to provide updates as additional news is available.
On June 23, 2016, the U.S. Supreme Court deadlocked in the case of United States v. Texas, effectively blocking two of President Obama’s executive actions on immigration. In November 2014, President Obama announced steps to expand the Deferred Action for Childhood Arrivals (“DACA”) program and to create a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Shortly thereafter, a group of states challenged such actions, with a lower court issuing an injunction halting these two executive orders. The U.S. Supreme Court decision upheld the lower court’s injunction to halt the expansion of DACA and creation of DAPA. The original DACA program remains in place: the original DACA program allows certain individuals who came to the United States as children and who meet certain criteria to request deferred action (removal from the United States) and apply for employment authorization. Again, the original DACA program continues to remain in place.