Trump Administration Announces Phase-Out of DACA Program

Attorney General Jeff Sessions today announced that the Trump Administration will terminate the Deferred Action for Childhood Arrivals (DACA) program on March 5, 2018.  The six-month delay is intended to give Congress time to pursue a legislative solution for DACA beneficiaries. 

According to a memorandum and FAQ from the Department of Homeland Security (DHS), the agency will phase the program out over the next six months and will cease accepting new initial DACA applications after today, but will continue to process pending cases and will accept some renewal applications for a limited period.

The following are answers to frequently asked questions about the phase-out of DACA. This FAQ will be updated as DHS issues new information.

1. What does the DACA termination mean for current beneficiaries?

Foreign nationals with a previously approved application for DACA benefits and a valid DACA employment authorization document (EAD) will be able to work and receive relief from deportation (known as “deferred action”) until their EAD expires, even if that occurs after March 5, 2018.  However, DHS retains the authority to terminate deferred action on a case-by-case basis at any time it is deemed appropriate.

DACA beneficiaries with a valid advance parole document may continue to travel internationally using this document, though they should do so with extreme caution because reentry to the United States is not guaranteed. 

2. What will happen to DACA beneficiaries whose request for an extension is pending at USCIS?

USCIS will continue to adjudicate – on an individual, case-by-case basis – pending DACA renewal requests and associated EAD applications.  According to the latest official statistics, 71,854 renewal applications were pending at USCIS at the end of the second quarter of FY 2017.

Pending applications for advance parole will not be adjudicated. DHS will close these applications and return their filing fees.

3. Can DACA beneficiaries with expiring EADs still file for renewal?

A DACA beneficiary whose EAD will expire between September 5, 2017 and March 5, 2018, can file an application to renew benefits.  Renewal applications must be received by USCIS by Thursday, October 5, 2017.

No other renewal applications will be accepted.  DACA beneficiaries with an EAD expiring after March 5, 2018 will not be eligible to renew.

4. What will happen to initial DACA applications currently pending at USCIS?

USCIS has indicated that it will continue to adjudicate – on an individual, case-by-case basis –initial DACA requests and related applications for EADs received by the agency as of September 5, 2017. DACA EADs have typically been issued for two years.  According to the latest official statistics, 34,487 initial DACA applications were pending as of the end of the second quarter of FY 2017.

5. Will USCIS accept new applications for initial DACA benefits?

No new applications for initial DACA benefits will be accepted after September 5, 2017.  As noted above, USCIS will accept renewal applications through October 5, 2017 for current beneficiaries whose EAD expires between September 5, 2017 and March 5, 2018.

DHS will not accept any new applications for advance parole.  Pending applications for DACA advance parole will not be adjudicated.

6. What is the likelihood that Congress will pass legislation to aid DACA beneficiaries?

Several bills benefiting DACA beneficiaries and other persons brought to the United States as children are already pending in Congress, including the bipartisan DREAM Act (S. 1615 and H.R. 3440). Some would provide a path to lawful permanent residence, while others would offer temporary protections.  More bills are expected to be introduced in Congress in the next six months.

Several Republican leaders have expressed support for a permanent legislative solution for DACA beneficiaries, but while support within the party has grown, there remains a vocal opposition.  Debate within the Republican party as well as a busy legislative calendar in September means that the prospects for legislation remain uncertain. 

7. What will happen after March 5, 2018 if Congress does not pass legislation to benefit DACA recipients?

Without a legislative solution, beneficiaries will lose their authorization to work in the United States and relief from deportation after their EADs expire.  DHS has said that it does not plan to provide information about expired DACA beneficiaries to U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection unless enforcement actions against an individual are already underway, but it reserves the authority to reverse that policy.

Some DACA beneficiaries may have other immigration options under current law. These should be carefully explored with immigration counsel. 

Fragomen is closely monitoring the DACA program and legislation in Congress.  We will provide updates as developments occur.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.