On September 5th, the Trump administration announced that the Deferred Action for Childhood Arrivals (DACA) program will end in six months, on March 5, 2018, unless Congress agrees on a replacement for the program. Employers should be aware of the impending changes to the DACA work permit renewal process, the legal risks that these changes to DACA may heighten, and the best practices for I-9 compliance. The Department of Homeland Security has posted frequently asked questions on the rescission of the DACA program.
DACA Program Wind Down
DACA grants temporary deportation relief and authorization to work in the United States to certain undocumented immigrants who came to the United States as children and who meet certain age, criminal background, and educational criteria.
Before the September 5 announcement: Individuals with DACA status and an employment authorization document (EAD or work permit) could use their work permits for two years and renew their work permits for consecutive two-year periods.
Now: DACA participants may use their work permits until their current expiration date, but only participants whose work permits expire on or before March 5, 2018 may apply for renewal. These participants must apply for renewal by October 5, 2017. The Trump administration has not announced if these renewed permits will be effective for a full two-year period.
Employer Legal Risks
The uncertainty surrounding DACA’s future and the work permit renewal process heightens certain legal risks:
- An employer could face civil and criminal penalties if a DACA-participating employee’s work permit expired and the employer continued to employ the person. Employees whose work authorization expires cannot be retained as contractors if the employer knows that they are not authorized to work.
- Terminating or declining to offer employment to an authorized DACA participant based on their DACA status could lead to claims of discrimination against the employer. This also means employers should not prematurely terminate DACA participants before expiration of their work authorization.
- Employees are not required to disclose their DACA status or upcoming work permit expiration date to their employers, and employers should not ask about DACA status or otherwise single out DACA status employees. Once a work authorization expires, employers are obligated to request to inspect the new work authorization document for I-9 reverification purposes.
To avoid these risks, employers should have thorough I-9 compliance. Best practices to ensure compliance include having a written immigration compliance plan that provides for:
- I-9 administrator training;
- Internal I-9 audits on a regular basis with proper correction of identified deficiencies; and
- A tickler system to alert the employer six months in advance of an expiring work authorization permit.
Congress may pass legislation to provide lawful work authorization for DACA participants. Employers should continue to monitor developments in this area.