DACA Quietly Marches On

By Allen Smith Sep 30, 2014

It’s been two years since President Barack Obama announced the United States would not deport certain undocumented youth who had come to the country as children—a move some blame for the current influx of immigrant children at the border.

Under Obama’s program, the children were granted deferred action, a stay for two years from deportation and work permits. The Deferred Action for Childhood Arrivals (DACA) program now is entering a new phase, where children granted a two-year reprieve are applying for two-year renewals.

Program Eligibility

The National Immigration Law Center notes in frequently asked questions about DACA that to be eligible for deferred action under the DACA program, individuals must:

  • Have been born on or after June 16, 1981.
  • Have come to the United States before their 16th birthday.
  • Have continuously lived in the United States since June 15, 2007.
  • Have been present in the United States on June 15, 2012, and on every day since Aug. 15, 2012.
  • Not have a lawful immigration status.
  • Be at least 15 years old.
  • Have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, be an honorably discharged veteran or be in school on the date the deferred action application is submitted.
  • Have not been convicted of a felony or significant misdemeanor, or three or more misdemeanors.
  • Not pose a threat to national security or public safety.
  • Pass a background check.

On average, it takes four to six months for the United States Citizenship and Immigration Services to make a decision on each DACA application.

Since DACA’s inception, DACA applications have been approved for 587,366 individuals, according to the Migration Policy Institute’s (MPI’s) August 2014 report, DACA at the Two-Year Mark.

Approximately 1.2 million were immediately eligible for the program with 426,000 who met the age but not education criteria.

In addition, “MPI estimates there were 473,000 children under age 15 at DACA launch who met the program’s year and age-of-entry requirements but had yet to age into eligibility. Due to the nature of DACA’s requirements, children under age 15 will keep ‘aging in’ to eligibility as of their 15th birthday, provided that they stay enrolled in school,” the report said.

“MPI estimates that 80,000 to 90,000 unauthorized youth will age into eligibility each year through 2015, after which the numbers will begin to decline until the last group of potentially eligible children reaches age 15 in 2022,” it added.

A main reason for not applying among those eligible for the program is the $465 fee as first-time applicants.

No End Date for Program

“There is no specific end date for the program,” noted Andrew Greenfield, an attorney with Fragomen in Washington, D.C. “But the administration, including a subsequent administration, could at any time decide that it no longer wishes to extend favorable discretion to this class of undocumented individuals.”

He added, “It is important to keep in mind that ‘deferred action’ is not a new concept in the law. It essentially means that the government is aware that a person is not in the United States legally, but decides, as a matter of prosecutorial discretion, that it will not seek to deport the person.”

Greenfield said, “The administration could choose to expand its prosecutorial discretion so that additional classes of undocumented individuals could benefit from deferred action—for example, by softening the current age requirements of the current DACA program.”

The program “has helped hundreds of thousands of dreamers get real jobs,” noted David Swaim, an attorney in Dallas. “It is a travesty it took this action to help these kids, but then again our entire immigration system is an utter mess.”

Mira Mdivani, an attorney in Overland Park, Kan., agreed, remarking, “Our law does not provide adequate legal means to employers: there are no legal visas available to employers for most jobs in most industries. Available programs, such as H-2B visas for seasonal employers, just add to employers’ frustration, because with a quota of 66,000 visas per year, these visas are gone without helping most employers in need. U.S. employers are weary of having to choose between moving U.S. jobs to Mexico or China or risking criminal and civil penalties for employing immigrant workers in the United States.”

Mdivani added, “Employers are looking to the U.S. government to provide legal means of employing workers in the United States without having to violate the law. If Congress refuses to acknowledge this reality, then the executive branch steps in with solutions such as DACA.”

Justin Storch, manager of agency liaison with the Council for Global Immigration, said, “Employers have had to thread a fine line—on the one hand, it’s great that DACA recipients can join the workforce. On the other hand, employers need to know what to do if employees already in their workforce come forward that do not yet have documentation.”

He added, “DACA provides both new opportunities and new challenges for employers. The important thing is that, regardless of immigration status, employers take all the proper precautions in employment verification to ensure they have a legal workforce.”

As for how long DACA will last, Peter Asaad, an attorney in Washington, D.C., said that depends on three scenarios. “Under the first, the program would end if Congress passes the DREAM [Development, Relief and Education for Alien Minors] Act or comprehensive immigration reform to create permanent reprieve from removal for “Dreamers,” thereby obviating the need for such prosecutorial discretion. Under the second scenario, the DACA program would end if a newly elected president chooses to reprioritize or end the application-based program,” he remarked. “The third and more immediate scenario is if the Republicans gain the majority in the Senate who then, with the House, defund the program. Under that scenario, the president could veto such a measure, but that would be difficult to do if it is attached to an essential piece of legislation, such as overall funding for the government to keep it running.”

President Obama is expected to take more executive action to defer action to a wider group of immigrants after the upcoming fall elections—a controversial plan that has been widely criticized by House Republicans. Asaad said that the DACA program might be expanded, not only by raising the age thresholds, but by granting deferred action to certain individuals other than the young, such as parents of U.S. citizens, parents of DACA-eligible individuals and individuals who have lived in the United States for a certain number of years.

As for threats to DACA, Asaad remarked that “employers too are beneficiaries of the DACA program, benefitting from the employment of hundreds of thousands of individuals.” He added that, “If the program ends, the rug gets pulled out from underneath a great number of employers, not just the Dreamers.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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