On January 13, 2018, the United States Citizenship and Immigration Services (USCIS) announced that it has resumed accepting requests to renew a grant of deferred action under the Deferred Action for Childhood Arrivals (DACA) program. On September 5, 2017, the Trump administration announced that it would formally end the DACA program. DACA, which commenced five years ago, protects certain undocumented immigrants brought to the United States as children from deportation and allows them to receive employment authorization. The decision to resume accepting applications to renew DACA comes on the heels of a preliminary injunction issued by a federal judge in California on the Trump administration's decision to phase out the DACA program.
The injunction guarantees that safeguards against deportation must remain in place for the nearly 800,000 DACA recipients while a legal challenge to ending the program proceeds, even if beyond the original March 2018 expiration date. USCIS is only accepting renewals, and will not accept requests from individuals who have never before been granted deferred action under DACA. USCIS will also not accept or approve advance parole requests from DACA recipients. Those who previously received DACA that expired on or after September 5, 2017 may also file their DACA request as a renewal.
Practically, this means that employers can continue to employ DACA recipients with valid Employment Authorization Documents (EAD), and note that extensions are currently allowed. DACA recipients whose EADs are expiring should apply for a renewal as soon as possible. Employers should note that DACA recipients are not allowed to work if their current EAD expires, even if they are awaiting an approval of an application to extend it.
Employers should review the expiration dates of employees on DACA and make preparations for workforce replacement in the event Congress fails to enact legislation to protect DACA recipients.
Littler is continuing to monitor this situation and will provide updates on key developments as they become available.
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