Between 2012 and 2017, the U.S. government approved approximately 800,000 applicants for Deferred Status for Childhood Arrivals (DACA).1 According to U.S. Citizenship and Immigration Services (USCIS) statistics, approximately 7,600 DACA recipients reported Wisconsin residences.2 Terminating this program will have devastating effects on these young people, most of whom were born in Mexico or Central America but who know no country but the United States, having arrived here at a young age.
This article discusses the origins of DACA, its five-year history, and its impact on the nation’s economy. Finally, it looks at what its end would mean for employers and Wisconsin as a whole.
The DREAM Act
During the past 15 years, several bills have been introduced in Congress to protect the young people who came to the United States when they were very young and know little to nothing about their countries of origin.3 The DREAM Act was first introduced in 2001; it would have provided a path for permanent residency for undocumented immigrants who arrived in the United States when they were young and met other qualifications.4 These individuals have come to be known as “Dreamers.”
John L. Sesini, Chicago-Kent 1991, is an immigration attorney with Sesini Law Group S.C, offices in Milwaukee and Green Bay. He is also a son of Italian immigrants.
Benjamin M. Crouse, Marquette 2009, practices immigration law with Sesini Law Group S.C. He clerked with the Houston and Chicago immigration courts, where he drafted numerous opinions and decisions for the immigration judges.
When the nonpartisan Congressional Budget Office (CBO) analyzed the cost of the DREAM Act in 2010, it estimated that legalizing the Dreamers would result in a modest net increase in government revenue over the first 10 years of the program.5 In the much longer run, though, the CBO anticipated a modest net increase in social spending as those Dreamers aged, had children, and got sick.6
The DREAM Act came closest to becoming law in 2010. The outgoing Democratic majority in the House of Representatives passed the bill in December 2010, but it stalled in the Senate as there were not enough votes to overcome a filibuster.7 Bills also were introduced in the next Congress in 2011, but they too stalled.8
DACA: An Administrative Stopgap
As a result of this legislative failure, and facing pressure from immigration advocates, on June 15, 2012, President Obama announced the DACA program, which was officially established by a memorandum issued by the Department of Homeland Security and its secretary at the time, Janet Napolitano.9 The memo did not create a new “immigration status” for these individuals, but it did offer protection from deportation (“deferred action”) to undocumented immigrants who came to the United States before reaching age 16. It was justified as an exercise of the executive branch’s prosecutorial discretion to enforce the nation’s existing immigration laws only against higher-priority individuals.10 At the Rose Garden Ceremony announcing the program, President Obama described it as a “temporary stopgap measure” until Congress acted.11
However, not everyone who arrived in the United States before age 16 is eligible for DACA. To qualify, applicants must show the following:
They were under age 31 on June 15, 2012.
They came to the United States before their sixteenth birthday.
They have continuously resided in the United States since June 15, 2007.
They had no lawful status on June 15, 2012.
At the time of applying, they were either currently in school, high school graduates, or GED recipients or honorably discharged military veterans.12
They have not been convicted of a felony or significant misdemeanor13 and do not otherwise pose a threat to national security or public safety.
Applicants for DACA filed requests with USCIS on form I-821D. Applicants were also eligible for employment authorization by filing form I-765 with the filing fees (now $410) and the biometrics fee of $85. Upon approval, USCIS issued a two-year employment authorization document, with which DACA recipients could obtain a valid Social Security number and a Wisconsin state ID card or driver’s license. This document was renewable every two years.
Effect on the Economy
Evidence unequivocally supports that the DACA program helped its recipients contribute positively to the U.S. economy. In a recent survey of approximately 3,000 DACA recipients, the Center for American Progress reported that 91 percent were employed, and that their average hourly wage was $17.46, up from $10.29 before receiving DACA.14 Five percent started their own businesses upon receiving DACA, and that number jumps to eight percent for individuals 25 and older, outpacing the national average of 3.1 percent.15 Moreover, 45 percent of the respondents in the survey were in school, and among those currently in school 72 percent were pursuing a bachelor’s degree or higher.16
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A 2016 study from the same group concluded that the deportation of all individuals with DACA would result in the loss of $460.3 billion to the national economy over the next 10 years and would cost Wisconsin $427 million in annual GDP losses.17 These losses are not hard to imagine when one considers the Dreamers’ increased wages and education and the fact that they are buying automobiles, purchasing their first homes, and creating new businesses.
Further, current DACA recipients, like other undocumented workers, pay Social Security taxes but have no right to the benefits of those payments. Undocumented immigrants generally are not eligible for most public benefits under federal law, such as Medicaid, food stamps, and Supplemental Security Income (SSI).18 However, DACA recipients can claim the earned income tax credit (EITC),19 a major tax benefit for lower-income earners. DACA recipients are also allowed to participate in Social Security20 and Medicare but so far are too young to receive these benefits.
Litigation and the Effect on the Economy
In 2014, the Obama administration sought to expand DACA, by creating a similar program for the parents of U.S. citizens, a program it would call DAPA. This action prompted several states’ attorneys general (including Wisconsin’s) to sue, alleging that the President’s newest memorandum violated the U.S. Constitution as well as federal regulatory law.21 Applying this same reasoning to DACA, the Trump administration issued a memo on Sept. 5, 2017, stating that it could not defend the legality of DACA itself and would begin to wind it down over the next six months.22
Terminating DACA will cause many of these young people to lose their jobs. USCIS will stop renewing two-year employment-authorization documents issued under DACA on March 5, 2018.23 After that, the Dreamers’ existing work permits expire over the next two years. But it is important to understand that these documents will remain valid until their stated expiration dates. In the meantime, a few Dreamers may qualify for other immigration benefits, so those who have DACA should seek experienced immigration counsel to explore which options may exist.
Therefore, if Congress takes no further action, Wisconsin employers will have to terminate good workers, pursuant to their companies’ employment eligibility verification (or I-9) compliance policies when the employees’ work permits expire.24 Otherwise the employer may be subject to DHS prosecution and civil penalties for knowingly employing unauthorized workers.25 This undoubtedly will cause hardship for U.S. businesses, given that 72 percent of the Fortune 500 companies hire DACA recipients.26
To deport DACA recipients fails to make sense for economic reasons; deportation would also be incredibly cruel. Most of these individuals were brought to the United States when they were very young and had no choice. Indeed, some of our clients were brought to the United States as infants or toddlers and do not know any other country. Some do not speak Spanish well and would have great difficulty assimilating into a culture they do not know. They are “Americans” in every sense except they were not born in the United States.
Against the Dreamers, one sometimes hears the same nationalistic, xenophobic rhetoric that has been spewed against previous immigrants. These fears endure even though all of us can point to the major contributions that Italians, Germans, Greeks, Indians, Africans, Arabs, and all the other immigrant groups have made to our country in the past century.
But ultimately even xenophobic rhetoric rings hollow against the Dreamers – given their personal stories. Perhaps that explains the broad public support for these young people. A Sept. 5, 2017, POLITICO poll shows that of respondents who self-identify their political affiliation, 84 percent of Democrats, 74 percent of independents, and 69 percent of Republicans think that DACA recipients should be allowed to stay in the United States and be able to obtain some type of status.27 Given the broad support that this particular issue has, a solution for these individuals may be on the horizon.
Meet Our Contributors
What was the oddest case you’ve ever been associated with?
I served as a consultant in an immigration case in which the client had an order of removal. However, he was eligible to obtain legal permanent residence through his wife’s petition for him. He was needlessly taken into custody, and Immigration and Customs Enforcement (ICE) transferred him far away from his family to an ICE holding facility in the far south. On the day he was to be deported, he refused to go. He grabbed and hung on to everything that he could, scuffled with the ICE agents, and simply refused to be put on a plane. Ultimately, his perseverance paid off as he was not put on that plane, but he was battered and bruised. Several weeks later he was even released from custody and returned to his wife and family.
His application for legal permanent residence was approved. Today, he is employed, and living happily with his family. He beat all the odds.
John L. Sesini, Sesini Law Group S.C, Milwaukee.
What is one thing you never leave home without?
I started off answering, “What are you reading?”
But it could just as easily be “I never leave home without my Kindle.”
I have spent much of my legal career riding the Amtrak to and from the Immigration Court in Chicago. So for the past eight years, I have been direct depositing my paycheck to Amazon, which keeps my Kindle stocked with books. Right now, for instance, I am 43 percent of the way through Moonglow by Michael Chabon and 30 percent through 1-2-3- Magic by Thomas Phelan. The latter, a technical manual on parental discipline, is a nod to my life at home with twin toddlers. The former is part of my weakness for good storytelling. In fiction or nonfiction, I just love following good storytellers wherever they go.
From my usual seat on the Amtrak, a good book (and Moonglow fits the bill) still feels like it did when I was nine or ten, holed away in my room with Gary Paulsen’s Hatchet, avoiding chores or homework and my own parents’ version of 1-2-3 Magic.
Benjamin M. Crouse, Sesini Law Group S.C., Milwaukee.
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1 U.S. Citizenship & Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (March 31).
3 See Development, Relief, and Education for Alien Minors (DREAM) Act, S. 1291, 107th Cong. (2001); DREAM Act of 2005, S. 2075, 109th Cong. 2005; DREAM Act of 2007, S. 2205, 110th Cong. (2007) (ending in a cloture vote 52-44 on Oct. 24, 2007); DREAM Act of 2010, S. 3963, 111th Cong. (2010).
4 The DREAM Act, S. 1291, 107th Cong. (2001).
5 Congressional Budget Office, Cost Estimate: S. 3992 Development, Relief, and Education for Alien Minors Act of 2010 (Dec. 2, 2010).
7 The DREAM Act was part of the Removal Clarification Act of 2010, H.R. 5281, 111th Cong. (2010) (after passing the House it ultimately failed in a Dec. 18, 2010, cloture vote, 55-41).
8 DREAM Act of 2011, H.R. 1842, 112th Cong (2011); S. 952, 112th Cong. (2011).
9 Janet Napolitano, Sec’y Dep’t Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
11 See The White House, Remarks by the President on Immigration (June 15, 2012).
12 Consideration of Deferred Action for Childhood Arrivals (DACA) (last visited Sept. 17, 2017).
13 USCIS defines a significant misdemeanor as a sentence in which an applicant actually served more than 90 days in jail except traffic violations and immigration detention. Id. DHS guidelines also state that a significant misdemeanor must impose a sentence of at least five days in jail. Moreover, the DHS will deem the following convictions as a significant misdemeanor regardless of the sentence imposed: burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, and drug distribution or trafficking.
14 Tom Wong et. al., Center for American Progress, DACA Recipients’ Economic and Educational Gains Continue to Grow (Aug. 28, 2017). The dataset and a description of the survey methodology are available here.
15 Id. As has been the case for years, immigrants are more apt to start their own business than native-born U.S. citizens.
17 Nicole Svajlenka et. al., Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars. The article relies heavily on a prior report, Ryan Edwards & Francesc Ortega, Center for American Progress, The Economic Impacts of Removing Unauthorized Immigrant Workers.
18 Eligibility turns on an agency-level interpretation of the phrase “lawfully present.” Here, the director of Health and Human Services’ Centers for Medicaid and Medicare Services promptly issued a policy letter stating that DACA recipients were not eligible for Medicaid. Cindy Mann, Director of Centers for Medicaid & Medicare Services, SHO# 12-002, Re: Individuals with Deferred Action for Childhood Arrivals (Aug. 28, 2012).
19 26 U.S.C. § 32(c)(1)(A), (c)(1)(E), (m) (eligibility based on valid Social Security number issued to alien whose status permits employment).
20 42 U.S.C. § 405(c)(2)(B)(i)(I). But see 8 U.S.C. § 1611(a), (b)(2) (benefits available to those “lawfully present”).
21 See Texas v. United States, 787 F.3d 733 (5th Cir. 2015) (denying the preliminary injunction). See also Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d without opinion, 136 S. Ct. 2271 (2016). States alleged standing to sue because, in part, issuing state-subsidized driver’s licenses to DACA recipients caused states to incur a cost.
22 Elaine Duke, Sec’y Dep’t Homeland Sec., Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017).
24 See 8 U.S.C. § 1324a(b)(1)(A)-(2) (banning the hiring and continued employment of unauthorized workers).
25 See, e.g., 8 C.F.R. § 274a.2(a)(3).
26 Wong, supra note 14.
27 Steven Shepard, Poll: Majority Opposes Deporting Dreamers, Politico (Sept. 5, 2017).