Jan 10, 2018

DACA: What it is. What may happen.

In 2012, President Obama created the Deferred Action for Child Arrivals (DACA) initiative by executive order. DACA allowed individuals under the age of 16 who arrived illegally in the U.S. before 2007 to apply for permission to live and work legally in the U.S. for renewable two-year periods. Only applicants without serious criminal histories were eligible under DACA. These individuals are sometimes referred to as “Dreamers” because the DACA executive order was created after Congress failed to pass the Development Relief and Education for Alien Minors (DREAM) Act, which would have offered individuals who entered the U.S. illegally as children the opportunity to become permanent legal U.S. residents.

Many lawmakers agreed with the concept of DACA but took exception to the fact that it came about through an executive order as opposed to actual legislation.

In April 2017, President Trump expressed to the media that DACA recipients could “rest easy.” However, in September 2017 the Trump administration announced that it will end DACA through a phase-out program. After Oct. 5, 2017, no renewal applications have been accepted but DACA recipients with a work permit set to expire before March 5, 2018, still have the opportunity to apply for a two-year renewal.

The March 5 deadline, however, has been shelved for the time being. On Jan. 9, 2018, U.S. District Court Judge William Alsup of the Northern District of California issued an injunction which prevents any Dreamers from being deported while a lawsuit challenging the termination of the DACA program is pending. The order also provided that anyone who had DACA status when the program was rescinded on Sept. 5 can renew it. White House spokeswoman Sarah Huckabee Sanders called the decision “outrageous.”

As the DACA situation proceeds in court, there is bipartisan support in Congress for taking action. As of this writing, there are three possible options.

First is the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act sponsored by Rep. Mike Coffman, a Republican from Colorado with 32 co-sponsors both Republican and Democrat. This would provide Dreamers a three-year visa that must be renewed by Congress. It would cover the same individuals who were protected under DACA and would restrict travel outside the U.S. during the three-year period. The BRIDGE Act is only an interim approach and requires further action three years from now.

Second is the Solution for Undocumented Children through Careers, Employment, Education, Defending our Nation (SUCCEED) Act, sponsored by Sen. Thom Tillis, a Republican from North Carolina with two Republican co-sponsors. This goes much further than the BRIDGE Act because it allows individuals who have lived continuously in the U.S. since at least 2012 and earned a high school diploma or GED to apply for citizenship but only after 15 years of conditional permanent residency while maintaining a green card.

Third is an updated version of the DREAM Act, reintroduced in 2017 by Sen. Lindsey Graham, a Republican from South Carolina (with 211 bipartisan sponsors), known as the Clean DREAM Act, which would apply to individuals who entered the U.S. before the age of 18 and have lived in the U.S. for four years prior to the enactment of the law. After five years as a legal permanent resident, applicants can apply for U.S. citizenship.

All of these developments are in an obvious state of flux and are further complicated by the President’s current demand that any revived DACA protection must be tied to funding for the construction of a wall on the southern border of the U.S. The President’s position as to the extent of any wall appears to be evolving as well.

Please contact a Chuhak & Tecson Employment attorney with any questions. 

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Daniel J. Fumagalli, Principal

This alert originally appeared in the January 2018 Employment Focus newsletter.