It has been almost two months since eligible individuals brought to the U.S. as young children began requesting “deferred action for childhood arrivals” (DACA) relief.  To date, USCIS reports that some 80,000-plus cases have been accepted for processing and 29 completed. As many as 1.76 million undocumented immigrants are estimated to qualify. According to USCIS statistics, more than half of the 80,000-plus cases filed thus far have been from Mexican nationals. Young applicants from El Salvador make up another 4,000 and 2,800 from South Korea.

DHS has been proactive in reaching out to the community to provide guidance on the program and documentary requirements, and has issued a number of FAQs to address the various questions that have arisen since the program started, another round of FAQs is expected shortly. One particularly vexing issue is whether a well-intentioned employer who gains knowledge about an employee’s lack of work authorization through the employee’s request for DACA documentation will become liable for employer sanctions penalties. While recent FAQs from DHS state that employers may provide individuals requesting DACA with documentation that verifies employment and that this information will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations or widespread abuses, greater assurances are needed — especially since FAQs do not have the force of law or regulation and can be withdrawn at any time. We hope these and other kinds of issues will be addressed squarely.

In addition to FAQs, DHS announced that it expects to process the initial group of DACA deferred action requests within four to six months of filing; biometrics appointments will be scheduled about one month from filing. USCIS also advises that it will first issue grants of DACA relief, then will process employment authorization applications.  Where requests are not approved on the initial submission, USCIS intends to send either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Outright denials will occur only where the individual is clearly ineligible, such as when the individual was born in 1972 or later. 

As the program picks up, we hope too that DHS can provide leadership and guidance to federal and state agencies about what DACA means.  For example, will a state’s document requirements for a driver’s license be satisfied with a grant of deferred action, documents obtainable through a grant of deferred action, and other documents that DACA beneficiaries are likely to have? Arizona Governor Jan Brewer has already issued an Executive Order barring those individuals eligible for DACA from obtaining driver’s licenses or other state benefits.  We hope other states do not follow suit.