Immigration update: End of DACA, start of ‘extreme vetting’

Much has been happening with immigration policy since President Trump took office, and employers would do well to keep up. That’s especially true if any of your workers are in the United States on temporary work visas or if you plan to recruit immigrant workers in the near future.

Here’s a breakdown of the latest from the Trump administration.

The end of DACA?

Attorney General Jeff Sessions has announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals program. DACA was implemented in 2012 through an executive order by former President Obama.

DACA allows illegal immigrants who entered the country as minors to receive a renewable, two-year period of deferred action on deportations. In addition, DACA recipients are eligible to receive an employment authorization document (EAD), which allows them to work legally in the U.S.

Currently, about 800,000 individuals have been designated participants in the DACA program.

The Trump administration’s decision to phase out the DACA program will end the work authorization of DACA beneficiaries and open the doors for their deportation.

Organizations that employ individuals with valid DACA EAD documents will want to pay close attention to developments.

The DACA program is scheduled to end on March 5, 2018. As of Sept. 5, 2017, the Department of Homeland Security no longer accepts new DACA/work permit applications.

Individuals whose DACA/work permit expires before March 5, 2018 may apply for a two-year renewal, but the application must have been received by DHS on or before October 5, 2017.

DACA: What you should do

For planning purposes, employers may wish to identify workers who are employed pursuant to DACA work permits by reviewing their I-9 forms and copies of the I-9 documents already on file. Individuals holding DACA work permits will have EADs with a “C33” category. They remain employment-authorized until the expiration date of their EADs.

Employers must reverify the employment authorization of these employees 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 just as any other employee without proper authorization would have to be terminated.

As expected, the Trump administration’s decision to phase out the DACA program is already facing legal challenges. On Sept. 6, 15 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 is also the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program.

We will provide updates regarding the status of the DACA program as they become available.

What ‘extreme vetting’ means

As part of its effort to control the nation’s borders, the Trump administration has signaled that it wants to develop “extreme vetting” of foreigners present in the United States or who wish to visit or work here. What that means is coming into focus.

Recently, a spokesperson for the U.S. Citizenship and Immigration Services confirmed that in-person interviews will now be required for employment-based nonimmigrant visa holders (e.g., H-1B, O-1, etc.) applying to adjust their status to permanent residents—to become so-called green card holders.

This interview requirement was expected to take effect Oct. 1. This mandate appears to be solely the result of the president’s pledge to apply “extreme vetting” to immigrants and foreign visitors. Traditionally, employment-based adjustment of status applicants have not been interviewed as part of the process, unless deemed necessary by the government.

The interview mandate will most likely lengthen the processing times for green card applications, since approximately 130,000 employment-based applications are filed annually with the USCIS. Currently, the USCIS is already taking more than six months to process employment-based green card applications at its various service centers throughout the United States.

There is no word on where the USCIS intends to conduct interviews pursuant to this mandate. We will provide updates as additional information becomes available.

Kseniya Premo is a Bond, Schoeneck & King member, based in Syracuse. Joanna L. Silver is a member in the firm’s New York City office. Alyssa N. Campbell is an associate in the Syracuse office.