What is the difference between DACA and DREAMers?
DACA recipients refers to those individuals protected under President Obama’s Deferred Action for Childhood Arrivals (DACA). The term “DREAMer” refers to those who would be protected under the Development, Relief, and Education for Alien Minors Act (DREAM Act), a bill in Congress that has been proposed several times but never passed.
How many people are we talking about?
On September 5, 2017, Attorney General Jeff Sessions announced the termination of the DACA program. At that time, there were an estimated 790,148 people with DACA status, and another 1.3 million people eligible under the original outlines of the DACA program.
What’s happening to DACA recipients now?
DACA recipients were given a 6-month grace period before the program’s end. During that time, recipients whose status was due to expire between the termination date and March 6, 2018 (roughly 154,000 individuals), were given until October 5, 2017 to apply for another two-year status extension. According to United States Citizenship and Immigration Services (USCIS), about 22,000 of those individuals, or one in four, did not meet that deadline. Those who had not applied before the October 5 deadline were not allowed to apply afterwards, and therefore their status will end as of their original two-year expiration date–some 5,900 as of the end of November 2017.
What about those applications that were delayed by the Post Office?
According to the New York Times, over 900 applications to renew DACA status were rejected due to an issue with mail delivery. USCIS, in a reversal of their original position of rejecting any late applications, indicated that it will be able to identify delayed submissions, and after notification from USCIS, allow those applicants 33 days to resubmit.
What happens on March 6, 2018?
At the end of the six-month grace period on March 6, 2018, if Congress is unable to codify the program or a variation of it into law, the DACA program will no longer exist. Those with valid DACA status may keep it until their documents expire, but no new applications or renewals will be approved. They may remain employed until their status expires, at which time their employers must end their employment. They may lose other benefits as well, such as drivers’ licenses, depending on the policy in their state.
What happens if a new program for DREAMers is created?
If President Trump were to attempt to “restart” the DACA program after the March 2018 deadline, as he has alluded to doing, agencies would need to know the following in order to implement it:
- Who is impacted
- What to do with individuals who apply and how to treat applications
- If there are changes to eligibility
- What to do with individuals who had been deported after their DACA eligibility expired
If Congress provides a legislative solution to DACA, not only will it have to address the questions above, but it will require another set of considerations, including the following:
- Regulations outlining standards for adjudication (must be published for comments on Federal Register, takes 6 to 18 months)
- New application forms (must be published for comments on Federal Register, takes 6 to 18 months and each question on the form must be proven to be necessary)
- What fees should be charged to cover administrative costs
- Which documents will be required for eligibility
- Where applications will be filed
- What are grounds for denial
- What is the appeals process for denial
- Who is protected from deportation in the interim, if anyone
- Are expired holders of DACA status, since deported, eligible to apply for reinstatement
In short, Congress passing legislation to protect DACA recipients and DREAMers won’t automatically trigger protected status, nor is a program immediately effective. The bills currently introduced all have a minimum time for regulations to be in place of 90 days. To avoid any “gap” in status for those DACA recipients who still have status before March 5, Congress would need to pass legislation before the end of 2017.
Could DREAMers be protected retroactively?
Congress could include a provision stating that DACA recipients be given status retroactively. However, it would be unlikely to make any tangible difference for those whose status expired. For example, retroactively giving work authorization would not mean they could receive back pay or get old jobs back. If recipients are employed, they may remain so until their work authorization expires, at which time their employers must end their employment. Employers are not required to rehire anyone terminated on this basis. Retroactive status would not prevent U.S. Immigration and Customs Enforcement from initiating deportation proceedings against or removing individuals whose status expired before the date of enactment, although it might terminate proceedings against those who have not yet been deported.
Also published on Medium.