Gap in Employment and Lawful Status in the US if DACA and EAD are not Renewed Before Their Expiration

May 23rd, 2017

An applicant for renewal of Deferred Action for Childhood Arrival (DACA) status and employment authorization (EAD) will incur a gap in lawful presence in the US if his or her DACA and EAD are not renewed before his or her current status expires.

Timely filed applications for renewal of DACA and the EAD do not provide for an automatic extension of lawful presence and work authorization in the US, respectively. In other words, if there is any gap between the expiration of an applicant’s first EAD and the approval his or her renewed EAD under DACA, then the applicant won’t have authorization to work during this gap.

Also, the applicant should be aware that if his or her current DACA status expires before his or her renewal is approved, then the applicant will accumulate unlawful presence in the US if he or she is over 18. Once the applicant accrues more than 180 days of unlawful presence, then if the applicant departs the US he or she cannot reenter for three years (although there are certain waivers available). Also, once the applicant accrues more than one year of unlawful presence, then he or she would be barred for ten years if he or she departed the US (with exceptions). It should be noted that many applicants for DACA would have already accrued the unlawful presence bar before initially filing for DACA.