Impact of Termination of DACA on Employers
Employers with employees working pursuant to employment authorization under the Deferred Action for Childhood Arrivals program will likely have their workforce impacted by the termination of DACA. Since 2012, the DACA program provided deportation relief and work permits to certain young people who came to the US as children without proper immigration documentation. To qualify for the DACA program, the individual had to meet certain age, educational and criminal criteria.
On September 4, 2017, the Trump Administration began the process to terminate DACA. As a result, the federal government is winding down the DACA program.
When Will Employment Authorization Terminate For DACA Recipients?
Employment authorization was issued to DACA recipients with two year validity periods based on when the application was approved, so there is no blanket expiration date. Employment Authorization for DACA recipients will terminate when their currently valid employment authorization document, Form I-766, expires. Unless the employee can show a valid form of employment eligibility for Form I-9 Employment Eligibility Verification purposes when the employer re-verifies employment eligibility, the employee must be terminated.
DACA Recipients Whose Benefits, Including Employment Authorization, Expire Between Sep. 5, 2017 and March 5, 2018, May Be Eligible for A Two Year Renewal
Individuals who have already received DACA benefits and have DACA benefits that will expire between Sep. 5, 2017 and March 5, 2018 can file for DACA renewal and the associated employment authorization renewal no later than October 5, 2017. The federal government has indicated that those individuals may be granted an extension under the DACA program, including work authorization, for a two year period. If an employee qualifies for this process, that employee’s work authorization should be valid for an additional two years, to sometime in 2019 or 2020. Again, the expiration date on the employment authorization document, Form I-766, controls employment eligibility.
How To Know Whether An Employee Is A DACA Recipient
Employees are not required to disclose the basis of their employment authorization because a valid employment authorization document (Form I-766) is sufficient evidence to show eligibility for employment. Although the employment authorization document (Form I-766) contains a code which identifies the basis for the grant of employment authorization, employers should not examine those codes to determine whether an employee is a DACA recipient and employers should not ask employees whether they are DACA recipients. This could raise issues of discrimination and employers should be careful to treat all employees consistently. Employers should not attempt to identify individuals working pursuant to the DACA program, but may instead want to provide information that would be available to the entire workforce, such as a notice of the opportunity to file for DACA renewal no later than October 5, 2017 for individuals who have already received DACA benefits and have DACA benefits that will expire between Sep. 5, 2017 and March 5, 2018.
DACA Recipients May Be Eligible For Other Forms of Employment Authorization
An employer is required to track the expiration of employment authorization for all employees working pursuant to an employment authorization document (Form I-766 from List A of the Form I-9 Employment Eligibility Verification). If an employee is able to show employment eligibility during the employment eligibility reverification process, then the employer may lawfully continue to employ the worker. Otherwise, employment must be terminated. DACA recipients should contact legal counsel to determine whether they are eligible for any other forms of employment authorization.
Efforts to Reinstate DACA Or Other Relief for DACA Recipients
A number of individuals and groups are lobbying Congress to propose legislation that would extend the DACA benefits or even provide a permanent solution for these young individuals, so a legislative fix is possible, but perhaps not probable. Further, fifteen states have so far sued the federal government to block the plan for the termination of DACA. Whether such lawsuits will be successful is uncertain.
Plans to Avoid Disruptions To Business Without Raising Discrimination Issues
In view of not knowing whether DACA will be reinstated as well as the possibility of other employment authorization programs being in jeopardy with the current Administration (such as Temporary Protected Status), employers may want to review and update their training plans to ensure that the adverse impact of a change in the workforce will not unduly harm the business. A best practice is to have flexibility with regard to employee skill sets. Do not target specific employees or discrimination issues may be raised. Further, as noted on the Form I-9, “the refusal to hire or continue to employ an individual because the documentation presented as a future expiration date may also constitute illegal discrimination.” Employers should not terminate the employment of workers with valid work authorization, or refuse to hire workers, including DACA recipients, if the sole reason for termination or refusal to hire is that the work authorization will expire in the future because the employer may face a possible discrimination claim.
If you have any questions regarding the termination of DACA, other immigration-related matters or labor-related matters, please contact Nancy A. Noonan, Darrell S. Gay, or the Arent Fox attorney you usually work with.