Frequently Asked Questions about Deferred Action for Childhood Arrivals (DACA) and What SMBs Need to Know to Prepare

Since 2012, the Deferred Action for Childhood Arrivals (DACA) guidelines have provided certain qualified non-U.S. citizens who came to the U.S. as children the opportunity to request deferred action for a period of two years. This deferred action has been subject to renewal on a case-by-case basis and those who qualify have also been eligible for work authorization.

On September 5, 2017, U.S. Secretary General Jeff Sessions announced an end to the DACA program. Under this directive, Acting U.S. Secretary of Homeland Security Elaine C. Duke has rescinded the 2012 memorandum. The Department of Homeland Security (DHS) has initiated a phase out of the DACA program by providing a limited six-month window to adjudicate certain pending and renewal DACA cases. 

The U.S. Citizenship and Immigration Services (USCIS) is no longer accepting initial (first time) DACA applications.

The issue is starting to get heated and, as of yesterday, at least four separate lawsuits have been filed against the Trump administration’s rescission of DACA. These lawsuits include two in the Eastern District of New York, with one brought by 15 state attorneys general and the District of Columbia and one brought by Martín Batalla Vidal, a Mexican man enrolled in DACA. There have also been two suits filed in California’s Northern District, one brought by the Regents of the University of California and a second that was filed yesterday by California, Maine, Maryland and Minnesota. It’s been widely reported that more than 200,000 DACA recipients live in California.

TriNet will be monitoring changes to the DACA program and how they affect small and midsize businesses (SMBs). In the meantime, here are answers to common questions about how the DACA rescission announcement will affect SMBs and their current employees.

What were the DACA guidelines?
Individuals were previously qualified to apply for DACA if they: 

• Were under the age of 31 as of June 15, 2012
• Came to the U.S. before their 16^th birthday
• Have continuously resided in the U.S. since June 15, 2007 and up until present time
• Were physically present in the United States on June 15, 2012 and at the time of making their request for DACA status with USCIS
• Had no lawful status on June 15, 2012; meaning that they never had a lawful immigration status prior to that date or any lawful immigration status or parole that they obtained had expired as of that date.
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general educational development (GED) certificate or are an honorably discharged veteran of the U.S Coast Guard or U.S. Armed Forces 
• Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

I currently have an employee working for my company under DACA. Does the administration’s announcement mean that this employee immediately loses their work authorization and DACA Status?
No. DACA and work permits will remain valid until they expire. To determine when DACA and work permits expires, the employee should look at their I-765 approval notice and the expiration date on their employment authorization document (EAD).

One of my employees qualifies for DACA but they have not applied with USCIS yet. Can they still apply for DACA?
No. After September 5, 2017, USCIS will no longer accept or process initial (first-time) applications. However, if the employee has already been granted DACA status, they may be eligible for renewal (see below).

My employee’s DACA status expires soon. Can they renew their already existing DACA and work authorization status?
Maybe; USCIS is only adjudicating DACA renewal requests from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018. The deadline to submit the renewal request is October 5, 2017. Additionally, they will also need to meet the below criteria: 

• They must not have departed the U.S. on or after August 15, 2012 without having been granted advance parole (AP)
• They must have resided continuously in the U.S. from the time they submitted the initial request for DACA up until the present
• They must not have been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and must not otherwise pose a threat to national security or public safety.

My employee has DACA status and I’m worried for them. Can I sponsor them to stay in the U.S. like I do for my other immigrant workers?
It depends. The answer is most likely no, however there is a very small category of individuals who may not have been eligible for alternate forms of relief when initially granted DACA status and may now be eligible due to changed circumstances. For this reason, we recommend you engage an attorney to assess whether other forms of relief are now available, even if the DACA recipient was originally determined as ineligible when he or she initially applied for DACA.

We need to send one of our employees, who is under DACA status, to an office abroad. Can they travel outside the U.S. at this time?
It depends. Due to the uncertainty surrounding DACA, we encourage you to seek the advice of an attorney prior to travel outside of the U.S.

The employee can travel abroad if they have been issued an AP document. This is known as Form I-512L. They should take this document with them (the original, not a copy) whenever they leave the U.S. They will need to show this document to travel officials at the airport/land crossing before heading back into the U.S.  and to the U.S. Customs and Border Protection (CBP) officer when they return. It is more important than their passport or any other travel document. It must not be lost or damaged as obtaining a replacement will be challenging at best, impossible at worst.

However, possession of a valid AP document does not guarantee re-entry into the U.S. Carrying a valid AP document does not prevent a CBP officer from subjecting anyone to additional screening or denying foreign nationals admission into the U.S.

If the employee has been granted AP under DACA but they have not yet left the U.S., we encourage you and your employee to speak to an attorney to determine potential risks before travelling abroad.

If the employee has not been granted advance parole, then they should not travel abroad.

DHS will no longer grant DACA recipients permission to travel abroad through AP. Any pending applications for AP will not be processed and DHS will refund any associated fees.

There may be other reasons why a DACA recipient should not travel abroad (such as pending orders of removal). Again, we strongly encourage speaking with an attorney before sending an employee who is under DACA on assignment abroad.

One of my employees, who is a DACA recipient, has been granted advance parole and is currently abroad. Can they still re-enter the U.S. using their current and valid AP document?
Yes. USCIS states that DACA recipients currently outside the country traveling with a valid grant of advance parole should be able to return to the country as long as they do so before their AP period expires. Their expiration date is listed on the Form I-512L.

Please remember that officers at CBP may exercise independent judgment over any foreign national’s request to enter the U.S. at a port of entry (e.g. airport or land border). Carrying a valid AP document does not prevent a CBP officer from subjecting anyone to additional screening or denying foreign nationals admission into the U.S.

If you are a TriNet client with additional questions, or if you’d like to be connected to an immigration expert, please reach out to immigration@TriNet.com for help.

My employee has applied to renew their DACA status but they have not heard back from USCIS. Their status and EAD will expire soon. Do they have a “grace period” to continue working if their DACA and EAD expire before the renewal application has been adjudicated?
No. In this case, there will be a lapse in employment. USCIS has clarified that it will not issue interim EADs or grant grace periods to applicants for DACA renewal, no matter what the circumstance. If the employee’s initial DACA and EAD expire while USCIS is still processing their renewal application, then the employee will likely lose their DACA status and employment authorization until USCIS makes a decision about the renewal application.

It’s important to note that, if this happens, the employee may no longer be considered “lawfully present” in the U.S. and may begin accruing “unlawful presence,” unless they were under age 18 at the time they submitted the renewal application.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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