On September 5, 2017, the Trump Administration announced it will end the Deferred Action for Childhood Arrivals (“DACA”) program. This decision has left many employers uneasy about how to handle employees whose employment authorization was granted through the DACA program and if they are still eligible to work in the United States.
The Saqui Law Group has compiled the following Questions and Answers regarding concerns employers may have following the announcement.
1. Q. What is DACA?
A. The DACA program was created by President Barack Obama on June 15, 2012. It allowed for undocumented immigrants who came to the United States before the age of sixteen and who met certain criteria to enroll in the DACA program and enjoy (1) a period of deferred deportation action and (2) eligibility to request employment authorization. Currently, there are approximately 800,000 DACA participants.
2: Q. What Does President Trump’s Announcement Mean for DACA?
A. Nothing right away. The Trump administration gave Congress a six-month window to pass appropriate legislation before current DACA recipients are potentially affected. Further, if a person’s DACA authorization is set to expire within six months (i.e., before March 5, 2018), they can seek to renew their permit; however, they must do so by October 5, 2017. United States Citizenship and Immigration Services (“USCIS”) will reject any new renewal request after October 5, 2017. A renewal is typically valid for two years.
Companies that employ DACA recipients will need to review employee’s Employment Authorization Documents (“EAD”) to confirm the date the authorization will expire consistent with existing I-9 reverification requirements. Once an individual’s DACA eligibility and EAD expire, the individual is no longer considered lawfully present in the United States and is not authorized to work.
3: Q. What Happens if Congress Does Not Pass Anything?
A. Once recipients’ DACA status expires, they will no longer be considered lawfully present in the United States, and they will no longer be eligible to work.
From August through December 2017, 201,678 individuals are set to have their DACA/ EADs expire. Of these individuals, 55,258 have already submitted requests for renewal of DACA to USCIS.
In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. Of these 275,344 individuals, 7,271 have submitted requests for renewal to USCIS.
From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.
By March 2020, there should be no more DACA recipients unless Congress acts to keep the program in place in some capacity or another.
4: Q. When an Employee’s DACA Expires, Will that Employee be Deported?
A. The Department of Homeland Security (“DHS”) has stated that immigration agents will continue to prioritize for deportation those individuals who have committed crimes, as opposed to former DACA recipients whose only crime is being in the country illegally. DHS has also stated that information provided to USCIS as part of the DACA application process will not be provided to immigration agents.
5: Q. What Should Employers Do in Response to the DACA Announcement?
A. Employers should be prepared to review their employee’s DACA status and have a system in place to ensure current work authorization. An employer is under an obligation to re-verify an individual’s employment authorization if the employee has an EAD by completing Section 3 of Form I-9 in accordance with the guidance in the USCIS Handbook for Employers M-274 available here.
Form I-9 Verification
For purposes of preparation and planning, employers in general should keep track of when an employee’s work authorization is set to expire. Therefore, if a DACA recipient’s EAD has expired and they fail to provide any other acceptable method of employment verification, then the employer must terminate the employee. If the employer knows of the expiration date and the DACA recipient does not provide another form of employment eligibility then the employer will be responsible for fines that are associated with knowingly employing an individual who is here illegally.
6: Q. Should Employers Terminate Known DACA Recipients?
A. No. Current DACA recipients are allowed to keep both their period of deportation protection and their work permits until they expire. If an employer were to fire an employee because of their DACA status, it would likely lead to a lawsuit alleging unlawful discrimination because the employee was work-eligible at the time of termination.
7: Q. Do Employers Need to Automatically Re-Verify DACA Employees?
A. No. Neither the USCIS nor the California Labor and Workforce Development Agency require an immediate re-verification of work authorization for employees with DACA status.
COUNSEL TO MANAGEMENT:
Employers should continue to follow I-9 verification and re-verification requirements and review new and current employee’s EADs. If the EAD is expired, then the employer should ask for an alternative form of workplace authorization, as explained in Form 1-9. If an employee fails to provide additional authorized verification within a reasonable time, then the employer should terminate the employee as the employee is no longer legally allowed to work in the United States.
Until a DACA recipient’s EAD expires, employers must continue to accept employees’ valid authorization documents. In addition, DACA recipients should not be treated differently during the Form I-9 re-verification process, and employers should not restrict an employee’s choice of acceptable documents, as stated on Form I-9.
Please contact The Saqui Law Group should you have any additional questions about the termination of DACA or have questions about your Company’s I-9 verification and re-verification process.