FAQs: Updated Guidance for Deferred Action for Childhood Arrivals (DACA) Recipients (9/5/2017)

On September 5, 2017, the Trump administration announced an end to the DACA (Deferred Action for Childhood Arrivals) program by terminating the program created under President Obama. This means that if you already have DACA, your DACA and work permit will continue to be valid until its expiration date. If you have a DACA application (initial or renewal) that was accepted for processing by U.S. Citizenship and Immigration Services (USCIS) through September 5, 2017, the agency will continue with the process of adjudicating your application. If you have a permit that will expire between now and March 5, 2018, you may apply for a two-year renewal of your DACA, but your request must be accepted by USCIS by October 5, 2017.

These FAQs provide information and recommendations concerning the Deferred Action for Childhood Arrivals (DACA) program and proposed legislation to protect Dreamers including those with DACA. The information in this based on what we know today. We will continue to update it with more information once we have it.

Please note that the information in this FAQ is not legal advice. Every person’s situation is different, and you should talk to a qualified immigration lawyer or a Board of Immigration Appeals (BIA)–accredited representative so that you can make the most informed decision for yourself.

Questions and answers provided by National Immigration Law Center.

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On September 5, 2017, the Trump administration announced an end to the DACA program by rescinding the 2012 Deferred Action for Childhood Arrivals (DACA) program created under President Obama.

IMPORTANT: IF YOUR DACA EXPIRES BETWEEN NOW AND MARCH 5, 2018, YOU HAVE UNTIL OCTOBER 5, 2017 TO SUBMIT YOUR RENEWAL PAPERWORK TO USCIS. After this date NO RENEWALS WILL BE PROCESSED.

This is a big update, which may be startling and frightening to you. Please know that there are many resources out there to support you in this time – start by locating an organization near you at Informedimmigrant.com/organizations. If you need immediate mental health support please visit informedimmigrant.com/resources and look under “Mental Health” for available resources.

4 IMPORTANT DACA UPDATES FOLLOWING AG SESSIONS’ SEPT. 5TH ANNOUNCEMENT (Courtesy of United We Dream)

1. YOUR DACA IS STILL VALID UNTIL ITS EXPIRATION DATE. DACA and work permits (Employment Authorization Documents) will remain valid until their expiration date. To determine when your DACA and work permit expires, look at your I-795 Approval Notice and the bottom of your Employment Authorization Document (EAD).

2. NO NEW DACA APPLICATIONS WILL BE ACCEPTED IF SUBMITTED AFTER September 5th, 2017. United States Citizenship and Immigration Services (USCIS) will no longer accept or process first-time DACA applications after September 5th, 2017.

3. DACA ISSUANCES AND WORK PERMITS EXPIRING BETWEEN NOW AND MARCH 5TH, 2018 MUST BE SUBMITTED FOR RENEWAL BY OCTOBER 5, 2017. If you have a permit that will expire between now and March 5th, 2018, you must apply for a two-year renewal of your DACA by October 5th, 2017.

4. ADVANCE PAROLE TO TRAVEL ABROAD IS NO LONGER AVAILABLE. The Department of Homeland Security (DHS) will no longer grant DACA recipients permission to travel abroad through Advance Parole. Any pending applications for advance parole will not be processed and DHS will refund any associated fees.

We will have further and more specific guidance as soon as possible. Please explore Informed Immigrant and the updated FAQ on DACA as more information becomes available.

DACA VALIDITY & APPLICATIONS

Your DACA is valid until it expires. DACA and work permits (employment authorization documents, or EADs) will remain valid until their expiration date. To determine when your DACA and work permit expire, look at your I-795 Approval Notice and the bottom of your EAD.

No new DACA applications will be accepted. USCIS no longer will accept first-time applications after September 5, 2017.

If your application has been received and accepted by USCIS before September 5, it will be processed accordingly. It is unclear if applications received in the lockbox but for which a receipt notice has not being issued will be adjudicated by USCIS.

If you have DACA and your DACA expires between now and March 5, 2018, you can submit your application for a two-year renewal by October 5, 2017. After October 5, 2017, USCIS will no longer accept any renewal applications.

If your DACA expires March 6, 2018, or later, you will not be able to apply for renewal.

If your application is currently pending, it will be adjudicated according to USCIS. It is unclear if applications received by USCIS without having sent a receipt notice to you will be processed.

Unfortunately, USCIS has said that they will not accept or process a renewal application submitted after September 5 if the person’s DACA expiration date is March 6 or later. For example, if your DACA expires on December 7, 2018, and you do not have a renewal request pending, you cannot apply for DACA renewal.

Advance parole to travel abroad is no longer available. The Department of Homeland Security (DHS) will no longer grant DACA recipients permission to travel abroad through advance parole. Any pending applications for advance parole will not be processed and DHS will refund any associated fees.

Employment

Since the Trump administration is not immediately ending any current grants of DACA or work permits, your employer should not ask to verify your work permit again until your current expiration date. At that time, if you qualified for and timely renewed your DACA and work permit or obtained a work permit on another basis, you will need to present your new work permit to your employer to show that you continue to have authorization to work.

If you no longer have a valid work permit, your employer will most likely lay you off when your current work authorization expires, since you will no longer have legal authorization to work. In some situations, you may be able to negotiate with your employer to be placed on a leave of absence until you can show you are authorized to work again; however, your employer is not obligated to agree to this.

More information about DACA and your workplace rights is forthcoming.

You do not have an affirmative duty to tell your employer that you have DACA, that DACA has been terminated or rescinded, or that your work authorization has expired or will expire. You are not responsible for raising the subject at all. Once your work permit expires, your employer has an obligation to ask to see your new work permit. As a general matter, we advise workers not to give an employer any more information about their immigration status than is required.

Typically, once you are hired and have completed the I-9 or E-Verify employment eligibility verification process, your employer should not ask to see your work permit or any other identity or employment eligibility verification document again until the time a document you provided expires. When an employer asks to see such a document again, this is called reverification. Your employer may reverify your employment eligibility only under certain circumstances. Your employer may reverify your employment eligibility — and ask to see your document again — if your document is about to expire or has already expired. (For more information about the reverification process in the DACA context, see “The DACA renewal process.”)

If your employer singles you or a certain group of fellow employees out for reverification without having some legitimate reason — such as the expiration of your document — the employer may be engaging in illegal reverification.

Under immigration law, it is unlawful discrimination for an employer to selectively reverify the employment eligibility of certain employees on the basis of their country of origin, citizenship, or type of immigration status. If employers reverify workers, they must treat those workers the same regardless of their citizenship, immigration status, or national origin. If the employer treats workers differently, such as by reverifying some of them but not others, the employer’s action could be unlawful.

It is also unlawful for an employer to request more or different documents than are required by the I-9 Form to verify employment eligibility, reject reasonably genuine-looking documents, or require certain documents over others. If your employer is engaging in this kind of unlawful conduct, you can call the free worker hotline at the Immigrant and Employee Rights Section of the Department of Justice at 1-800-255-7688. The IER offers a mediation-type process designed to quickly resolve disputes with employers; if that process fails you may file a formal complaint.

In general, unless you are covered by a union or other employment contract, employment in the U.S. is considered “at will” and an employer can fire an employee at any time, as long as the employer is not impermissibly discriminating or retaliating against you. Thus, even if you do have a valid work permit, your employer may still legally choose to fire you.

The new announcement may cause confusion and some employers may assume work permits of DACA recipients are immediately invalid, rather than valid until expiration. If that’s the situation you’re experiencing, refer your employer to:

DHS Memo on Rescission of DACA

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

DHS Frequently Asked Questions (FAQ) on DACA Rescission

https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca

You or your employer can also call the Immigrant and Employee Rights Section of the Department of Justice at the number listed above.

If you continue to work for your employer after your work permit has expired, and your employer does not request further proof of your eligibility to work, you will be working without authorization. You do not have an affirmative duty to tell your employer that your work permit has expired if your employer fails to request a new work permit. Your employer may, if and when it realizes your work authorization has expired, terminate your employment at any time.

But if your employer fails to check and you simply continue to work for the same employer after your work permit expires, without making any false statements about your status, eligibility for employment, or identity in order to keep working and without providing any false documents, then, in general, there should be no additional immigration or criminal consequences beyond those you may already be subject to on account of your immigration status. But you should consult a qualified immigration attorney to assess any risks specific to your personal situation.

Your employer may be audited by the Worksite Enforcement Unit of the Department of Homeland Security (DHS), which is responsible for enforcing the law prohibiting unlawful employment. Nationally, ICE targets approximately 1,200 employers for I-9 inspections each year. According to their webpage, DHS’s Worksite Enforcement Unit concentrates its worksite inspection efforts on “employers conducting business in critical infrastructure and national security interest industries/sectors.” If your employer is audited and is found to have knowingly continued to employ you after your authorization to work has ended, your employer may be subject to liability under federal immigration law. Financial penalties for knowingly continuing to employ an unauthorized worker range from $548 to $4,384, per violation, for first time offenders. DHS considers numerous factors in determining financial penalty amounts, including the size of the employer and the history of any previous violations.

Businesses are not required to check if an independent contractor has work authorization. Generally, a Form W-9 is used by businesses for independent contractors. The independent contractor is required to provide his/her correct name and Social Security Number (SSN) on the W-9, although workers who are not eligible for an SSN may instead use an Individual Tax Identification Number (ITIN). If the worker does not have a SSN or ITIN, he/she can apply for an ITIN and in the interim, fill out “Applied For” in the space on the W-9 for the tax identification number and leave the W-9 certification blank.

However, regardless of whether you are an employee or independent contractor, individuals are not permitted to work in the United States without work authorization. Nor may businesses contract for labor with someone who the business knows is unauthorized to work.

Generally, yes, but it may depend on applicable state laws, some of which distinguish between accrued paid vacation and paid sick time and require that you be paid out the vacation, but not the sick time. You will need to check the laws of the state in which you were employed and performed the work to determine precisely which types of accrued paid time off the employer is obligated to pay you upon termination. For more information, see https://www.workplacefairness.org/ and https://www.lawhelp.org/.

No. To be eligible for unemployment benefits, a person must be ready, willing and able to work. If you are not authorized to work, then you cannot meet the requirement of being “able to work”.

Any vested portions of an employer-sponsored retirement account will remain yours after your employment ends. If you have “vested” savings in your employer-sponsored retirement account, when you leave your employment you are entitled to take out all of your contributions and your employer’s contributions to your account. If you have not yet vested, at a minimum you are entitled under law to take out your contributions to the account (but may not be entitled to your employer’s contribution). This assumes you have a “defined contribution” retirement plan, which the vast majority of U.S. private sector employees have. Some private sector employers, and many government agencies, maintain “defined benefit” retirement plans, which will be governed by different rules and you should consult your human resources department or union representative for information about withdrawals under such a plan.

It bears mention that most savings plans do not require that you withdraw the funds in your account when you leave employment. If you leave the savings in your employer-sponsored account, the account will continue to accrue interest but no additional contributions will be made by your employer. If you chose to take out the savings in your account as cash, you will lose a significant amount of your savings due to penalties and taxes. In order to avoid these penalties, you can open your own retirement account such as an Individual Retirement Account (“IRA”) and “roll over” the money from your employer-sponsored account to your personal account.

There are several steps your employer can take to support you as your work authorization ends. These include:

  • severance pay
  • paying out all accrued leave balances (this may be required in certain states, see above)
  • providing you an opportunity to be reinstated to your prior position if you obtain work authorization in the future
  • providing a positive reference, and/or
  • contributing to a legal defense fund in the event you need immigration legal defense in the future

An employer can call ICE to try and report your immigration status. But ICE is not required to respond to the call. Context can also matter. If the employer made the report because you were engaged in protected activity (like filing a legal claim against the employer, taking protected leave, organizing coworkers to improve working conditions, or some other exercise of your workplace rights), then the report may be unlawful. In limited cases, the employer’s retaliatory reporting may be grounds for a U visa. ICE has also entered into an agreement with various federal labor law enforcement agencies and issued guidance against engaging in investigations or immigration enforcement actions at worksites where an ongoing labor dispute exists or that are being investigated by a federal labor agency. Although these agreements remain in effect, it is unclear how closely they will be followed or implemented by the current administration.

If approached by an immigration officer, you should remember that you do not have to answer questions. You should not run away or give false information. You can ask if you are free to leave and walk away if you are not under arrest. You can say that you want to first consult with an attorney and then seek legal assistance before answering any questions. You can find out more about your rights when stopped by immigration officers here.

DRIVER’S LICENSE

Driver’s license rules, including eligibility and document requirements and procedures for renewing a license, vary from state to state. All 50 states allow DACA grantees to get a driver’s license if they are otherwise eligible. In most states, a driver’s license expires when the deferred action grant or work authorization document expires. Depending on the state’s rules, you may need to show new proof that you are lawfully present in the U.S. or have a specific immigration status (other than DACA) when you renew your license.

Twelve states (CA, CO, CT, DE, HI, IL, MD, NV, NM, UT, VT, WA), the District of Columbia, and Puerto Rico issue driver’s licenses to eligible residents, regardless of their immigration status. About 44 percent of DACA recipients live in a state that issues driver’s licenses to eligible state residents regardless of their immigration status. These states issue at least two types of licenses: a REAL ID license that is acceptable for certain federal purposes, and a non–REAL ID license that cannot be used for these purposes. If you have a REAL ID license from one of these states, you will likely need to apply for a non–REAL ID license when your current license expires. If you already have a non–REAL ID license, you may be able to keep/renew your current license.

You will need to check with your state’s department of motor vehicles for the specific requirements in your state.

HEALTH CARE

If you have health coverage through your employer, you should remain covered as long as you are employed.

If you have health coverage through your spouse’s or partner’s employer, you should remain covered. There are no immigration status requirements for such coverage.

DACA recipients are not eligible for health insurance through the health insurance marketplaces established under the Affordable Care Act (ACA) (e.g., Covered California), so the rescission of DACA does not affect their access to ACA plans. Anyone who doesn’t have another source of coverage can buy private health coverage directly from insurance companies and brokers, regardless of their immigration status. However, no financial assistance is available, and coverage can be purchased only during an open enrollment or a special enrollment period.

In California, Massachusetts, Minnesota, and New York, low-income DACA recipients may be eligible for comprehensive health coverage through a state program (e.g., Medi-Cal). In Washington, DACA grantees with disabilities may be eligible for medical coverage. After your DACA expires, you may still be eligible for state health programs. Check back here for updates, or check with a trusted advocacy organization in your state.

Washington, DC, provides health services to all income-qualified residents of the district. You will not lose your health care when your DACA expires.

Many states provide coverage for the treatment of certain diseases, or to certain populations, regardless of an individual’s immigration status. Access to this coverage will not be affected by the rescission of DACA. In most states, low-income DACA recipients’ eligibility for Medicaid coverage is limited to treatment for emergencies, including labor and delivery services. This Medicaid for emergencies is available regardless of an individual’s immigration status and will not change.

In many states, income-qualifying pregnant women are eligible for pregnancy-related services through the state’s Children’s Health Insurance Program (CHIP) or through a state program, regardless of their immigration status. Services available include prenatal care, labor and delivery services and, in some cases, postpartum care. Access to this program will not be affected by the rescission of DACA.

In the other states, pregnant women whose immigration status makes them ineligible for full-scope Medicaid are eligible for restricted-scope or emergency Medicaid for labor and delivery services. Children born to mothers covered by Medicaid (including restricted scope) are automatically eligible for Medicaid. DACA rescission will not affect eligibility for these programs.

California, Illinois, Massachusetts, New York, Oregon, and Washington provide full-scope health coverage to all residents under age 19, regardless of immigration status, if they meet the income eligibility requirements for the state Medicaid and/or CHIP program. Washington, DC, provides health services to all income-qualified residents of the district.

Many cities and counties provide health services for their residents who are ineligible for comprehensive coverage, regardless of their immigration status. Access to those programs will not be affected by the rescission of DACA.

In addition, the following health programs are available regardless of immigration status in all states, and remain an option for uninsured immigrants, including people who have DACA or whose DACA expired:

  • Emergency-room care
  • Community health centers and free clinics
  • Public and safety-net hospitals
  • Public health services (immunizations, treatment of communicable diseases such as tuberculosis, HIV, sexually transmitted diseases)
  • Emergency treatment under emergency Medicaid, including labor and delivery for pregnancy
  • Hospital and community health center financial assistance programs (also known as “charity care”)

ACCESS TO HIGHER EDUCATION

Below is some information about access to higher education for students whose DACA grant has expired. Some answers will vary depending on the state, college, or university system. And some answers could change depending on what your state, institution, or scholarship program decides to do. Advocacy in coordination with your college or university could be very important in ensuring that you and other students can continue your education.

Almost every state allows students, regardless of immigration status, to enroll in public colleges and universities. Alabama and South Carolina are exceptions and do not allow undocumented immigrants to attend public institutions. Advocacy would be needed to try to ensure that students currently enrolled can complete their education.

A few selected colleges in Georgia deny enrollment to students with DACA as well as to undocumented immigrants (thus there would be no change for students losing DACA in that state). In all other states, former DACA grantees should be able to enroll in public colleges and universities.

At least 20 states and the District of Columbia have “tuition equity” laws or policies, allowing students who attended high school for a certain number of years in the state and who meet other criteria to qualify for in-state tuition rates, regardless of their immigration status. About 76 percent of DACA grantees live in a state with a tuition equity law or policy. Former DACA grantees who meet these criteria can continue to pay in-state tuition rates.

DACA grantees in some other states, including Alabama, Arizona, Idaho, Massachusetts, Maine, New Hampshire, Ohio, and Virginia, have been able to pay in-state tuition rates if they meet the state’s residence criteria. (Litigation on this issue is ongoing in Arizona and Georgia). Individual colleges in some other states also allow DACA grantees to pay in-state tuition. But undocumented immigrants generally are not eligible to pay in-state tuition in these states. Advocacy would be needed to ensure that students already paying in-state rates can continue to do so—or to secure other resources for students who may be charged higher tuition rates. Students could also press these states to adopt tuition equity laws.

Several states, including but not limited to Georgia, Missouri, North Carolina, South Carolina, and Tennessee, already deny in-state tuition rates to DACA grantees. Eligibility for students losing DACA would not change in these states.

DACA grantees (and former DACA grantees) are not eligible for federal financial aid. However, at least 8 states and the District of Columbia offer state financial aid to students who meet certain criteria, regardless of their immigration status. And universities in some states offer institutional aid or scholarships to students regardless of their status. Former DACA grantees should continue to be eligible for state financial aid in these states or institutions.

Some private scholarships are available to students regardless of status, while others may be available only to DACA grantees and other students who are lawfully present in the U.S. Advocacy would be needed to persuade groups administering these private scholarships to make them available to students regardless of their status—including former DACA grantees.

FINANCES & TAXES

As you continue to plan your financial future, we recommend that you remember to do the following:

  • Enlist someone at your job who can pick up your paycheck.
  • Have a list of banks and accounts opened.
  • Have a list of all utilities/bills.
  • Enroll someone in your bank account who can deposit, withdraw, or potentially close your bank account.
  • Start a savings account.
  • Have someone listed on your utility bills who can close accounts and collect deposits.
  • Add someone to your lease who can terminate it if need be and collect deposits.
  • Add someone to your mortgage who can continue making payments on your mortgage, close it, or sell your property for you.
  • Add someone to your car lease who can continue payments, terminate purchase, or sell your vehicle for you.
  • Begin a savings plan immediately even if it’s not much, at least for each month. It might come in handy later.

Once you receive a Social Security number (SSN) from the Social Security Administration, you must use your SSN for tax filing purposes and discontinue use of an Individual Taxpayer Identification Number (ITIN) if you had previously been issued one. If your work authorization is rescinded, your SSN remains valid for tax purposes, so you should continue to use your SSN for that purpose.

Note that this applies only to a valid SSN that has been assigned to you. You are required to file all your taxes under that single SSN going forward. It is important not to present false information on tax forms—such as filing the return with an SSN that was not assigned to you—as this could affect your immigration case in the future.

If you have questions about tax filing, you can visit a local tax clinic. In general, if you earn less than $54,000 a year, you are eligible for free services at Volunteer Income Tax Assistance (VITA) sites. You can find a local VITA site here: https://www.irs.gov/individuals/free-tax-return-preparation-for-you-by-volunteers.

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