By: Sharon Barney, Esq.

On September 5, 2017, Attorney General Jeff Sessions announced that the Department of Homeland Security (“DHS”) would begin steps to terminate the Deferred Action for Childhood Arrivals program (“DACA”). DACA was a form of prosecutorial discretion that was created via executive action by President Obama in 2012 to provide immigration benefits to undocumented immigrants who arrived to the United States as children. If eligible, applicants received work authorization and a reprieve from potential deportation for a two-year period, which was subject to renewal.

In a press release issued by the DHS, Attorney General Sessions recommended that DACA be terminated based on his determination that DACA was “an unconstitutional exercise of authority by the Executive Branch.” Based on pending litigation involving the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), another executive action announced by President Obama in 2014, DHS determined that a six-month wind-down of the program would be the “least disruptive option,” rather than facing an immediate injunction of the program in the courts.

While 100 law professors disagree with Attorney General Sessions’ legal analysis of the Constitutionality of the DACA program, it is clear that the announcement has raised questions of next steps for those who are currently protected by DACA. Additionally, fifteen states and the District of Columbia filed a lawsuit in the Eastern District of New York against the Administration to stop the rescission of DACA. President Donald Trump has indicated that is now up to Congress to enact a legislative solution to provide a more permanent solution to DACA holders.

Since its inception in 2012, approximately 800,000 applicants have received DACA. In order to qualify for the program, applicants had to demonstrate:

  • Arrival in the United States before age 16,
  • Current enrollment in school, graduation from school, receipt of a GED, or honorable discharge from the military,
  • No felonies or serious criminal records,
  • Meeting other physical presence requirements,
  • Payment of a $495 filing fee.

As part of the application process, applicants provided their home addresses, their parents’ names and addresses, and other biographic information. Once approved, applicants received “deferred action,” or a reprieve from removal, from the United States for two years, in addition to work authorization.

The DHS issued a memo and Frequently Asked Questions to provide specifics on the wind-down of DACA. The main points include:

  • DHS will not accept any new applications for DACA after September 5, 2017
  • Current DACA holders will retain their period of deferred action and work authorization until their expiration, indicated on their I-797 receipts and Employment Authorization Documents (“EAD”)
  • Those with pending new and renewal DACA applications will continue to be processed
  • If a current DACA holder’s deferred action or EAD card will expire before March 5, 2018, he or she must apply for a DACA and/or EAD renewal by October 5, 2017
  • Once a DACA holder’s deferred action expires, he/ she can be subject to removal from the United States as he or she will be unlawfully present. He/she will also no longer be authorized to lawfully work.
  • While U.S. Citizenship and Immigration Services (“USCIS”), which processes DACA applications, will not “proactively provide” information to Immigration and Customs Enforcement (“ICE”) for immigration enforcement, they may provide information about DACA recipients to ICE if the DACA holder “poses a risk to national security or public safety” or meets Notice to Appear criteria
  • DHS will no longer accept new Form I-131 Advance Parole applications from DACA holders after September 5, 2017
  • DACA applicants or holders with pending I-131 applications will have their I-131 cases closed and filing fees returned

Those DACA holders whose deferred action or EAD will expire by March 5, 2018 should contact an immigration attorney immediately to file for a renewal before October 5, 2017. Additionally, those currently utilizing DACA should also consult with an immigration attorney as soon as possible to determine if another immigration benefit or status may apply to them. It is advisable that those DACA holders with advance parole should not leave the country before speaking with an immigration attorney. Finally, employers who have employees who benefited from DACA should also consult with an immigration attorney and an employment attorney to determine a course of action.

If you have any questions regarding DACA or immigration law updates, please contact Sharon Barney. Sharon is Counsel in Leech Tishman’s Immigration and Family Law Practice Groups. Sharon is based in the firm’s State College office. Sharon can be reached at 814.954.5904 or sbarney@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.

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