Higher Education Law Report
Trump Administration’s Rescission of DACA to Affect Faculty, Students and Staff at Colleges and Universities
September 6, 2017
On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program. The rescission of DACA and the benefits afforded by the program will affect individuals employed by and enrolled in colleges and universities across the country.
DACA, implemented in 2012 through an executive order by former President Barack Obama, allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action. In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S., and advance parole, which allows them to re-enter the U.S. following a trip abroad. Currently, about 800,000 individuals are participating in the DACA program. The Trump administration’s decision to phase out the DACA program will end the work authorization and advance parole of DACA beneficiaries and potentially open the doors for their deportation.
The DACA program is scheduled to end in six months, on March 5, 2018. As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new EAD or advance parole applications from DACA beneficiaries. In addition, any pending advance parole applications are going to be closed by DHS and returned to the respective DACA applicants. Individuals whose EADs expire prior to March 5, 2018 may apply for a two-year renewal, but their applications must be received by the DHS on or before October 5, 2017.
Institutions’ human resources offices may wish to identify those individuals who are employed pursuant to DACA by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file. DACA beneficiaries will have EADs with a “C33” category and will remain employment authorized until the expiration date on their EADs. The employment authorization of these individuals must be reverified by completing Section 3 of Form I-9 no later than the expiration dates on the EADs. Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed at the college or university. With respect to those DACA employees whose EADs expire prior to March 5, 2018, colleges and universities may choose to provide a gentle reminder that renewal applications for a two-year extension must be filed and received by the DHS on or before October 5, 2017.
With respect to DACA students, faculty or staff who were planning to study abroad or attend a conference or other event outside the U.S., colleges and universities may choose to advise these individuals to change their plans and remain in the U.S., even if they have advance parole that has not yet expired since USCIS retains the authority to revoke or terminate an advance parole document at any time.
As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts. On September 6, fifteen states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination. There also is the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program. We will provide you with updates regarding the status of the DACA program as they become available.