Just the Facts - Deferred Action for Childhood Arrivals

Justin Storch By Justin Storch September 27, 2018
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Just the Facts - Deferred Action for Childhood Arrivals

The Deferred Action for Childhood Arrivals (DACA) program allows certain individuals who have grown up and gone to school in the United States to remain in the United States, attend school and work legally. The DACA program faces termination if Congress and the administration do not act. Below are the facts on the DACA program, how DACA recipients contribute to the U.S. economy and the dilemmas employers face as the program could be coming to an end.

What is DACA?

The DACA program was created on June 15, 2012, by the Department of Homeland Security (DHS). It allows certain individuals who came to the United States the opportunity to request deferred action (protection from removal) for a period of two years, which can be renewed. DACA recipients are also eligible to receive work authorization and contribute to American employers.

On September 5, 2017, DHS announced it would cease accepting initial DACA applications immediately and would stop accepting applications for two-year renewals after October 5, 2017. Processing of those renewal applications was set to continue through March 5, 2018. However, a series of legal developments have kept DACA renewals alive—for now.

What is the status of DACA litigation?

  • Regents of the University of California, et al. v. Department of Homeland Security, et al.

The United States District Court for the Northern District of California issued a preliminary injunction that required United States Citizenship and Immigration Services (USCIS) to continue to accept DACA renewals after March 5, 2018. The Supreme Court denied a request to hear an appeal directly from the district court. The injunction is still in effect, and USCIS continues to accept DACA renewal applications.

  • Batalla Vidal, et al. v. Nielsen, et al., and State of New York, et al. v. Trump, et al.

The United States District Court for the Northern District of California issued a second preliminary injunction requiring continued acceptance of DACA renewals. This decision has been appealed to the 2nd Circuit Court of Appeals with briefing expected on October 5, 2018.

  • NAACP v. Trump, et al., and Trustees of Princeton, et al. v. United States of America, et al.

The U.S. District Court for the District of Columbia issued a final judgment that would have gone a step further than the prior preliminary injunctions, requiring DHS to vacate the memorandum that rescinded the DACA program, effectively reinstating DACA in its entirety, even for new applications. However, after various new memoranda and legal motions, the court stayed the portions of its decision that would have required USCIS to accept new applications as the case is appealed.

  • Texas, et al. v. Nielsen, et al.

Ten states have challenged the underlying legality of the entire DACA program and filed a motion for a preliminary injunction, asking the U.S. District Court for the Southern District of Texas to halt the program. On August 31, 2018, Judge Andrew Hanen denied the motion but hinted that he is likely to ultimately determine that DACA violates the Administrative Procedure Act when he makes a determination on the merits. This would align with the reasoning used by Judge Hanen in a 2015 case that halted expansion of DACA and created a new deferred action program for certain undocumented parents of Americans.

Ultimately, one or more of these cases is likely to be heard by the Supreme Court after a circuit court decision, meaning that the Supreme Court will have the final word on DACA unless congressional action is taken that would moot the cases. The Supreme Court is unlikely to reach a final decision on any of these cases before June 2019 at the earliest.

Who is eligible for DACA?

To be eligible for DACA, applicants had to demonstrate that they were under the age of 31 as of June 15, 2012, came to the United States before their 16th birthday, and were enrolled in or had completed high school or its equivalent, among other requirements. To qualify, individuals must also not have been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or otherwise pose a threat to national security or public safety.

How many individuals received DACA status? How many currently hold DACA status?

Since 2012, approximately 798,980 individuals have received DACA status. Of those, approximately 689,800 still had DACA status as of September 4, 2017.

How many DACA recipients are currently working in the United States? How has DACA status impacted their pay?

As of the end of fiscal year 2017, approximately 76 percent of DACA recipients were working in the United States. Forty-five percent of DACA recipients saw their earnings increase after receiving DACA status.

Of the approximately 110,000 individuals whose DACA status lapsed, approximately 40,000 adjusted to legal permanent resident status and approximately 70,000 either failed to renew their status or were denied renewal.

How many employers have at least one DACA recipient working for them?

While there is no way to know the exact number of employers that have DACA recipients on their payroll, SHRM has estimated the number to be in the tens of thousands. The exact number is unknown because not all employers that have DACA recipients are aware of that fact. This is because not all DACA recipients self-identify when accepting employment and are not required to do so.

In what industries do DACA recipients work?

DACA recipients can and do work in every sector of the American economy, including education and health services, the nonprofit sector, construction, retail trade, professional services, manufacturing, and the STEM fields.

How would employers be affected should DACA end?

Studies have shown that removing DACA recipients from the American workforce would cost $215 billion in gross domestic product over the next decade. Employers would face $6.3 billion in employee turnover costs, including expenses for recruiting, hiring and training.

If there is no congressional solution, what can employers do to prepare for the end of DACA? What are they prohibited from doing?

  • SHRM advises employers to assess their current workforce to determine who are known DACA recipients and to conduct workforce planning around how those positions will be filled if the employees lose work authorization.
  • However, employers should not terminate employees merely in anticipation that they may lose their work authorization at a future date and should not ask individuals if they are DACA recipients if they have not volunteered that information.
  • Further, employers should not examine their I-9 or employment verification records to determine who is a DACA recipient. Doing so could violate anti-discrimination provisions of employment verification law that are enforced by the Department of Justice.

SHRM calls upon Congress to find a timely bipartisan solution for DACA recipients that provides predictability for employers and employees and gives opportunities for these individuals who grew up in the United States to stay and contribute to America's economy.


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