The End of DACA and the Serious Risks Faced by Employers
Recently, the Trump Administration announced it was going to end the Deferred Action for Childhood Arrivals Program (DACA), which provided remedial protection (i.e. from deportation) to nearly 800,000 undocumented immigrants who entered the U.S. as children.
DACA was first implemented in 2012 to defer deportation enforcement against certain undocumented individuals who entered the United States as children and met other qualifying criteria. With the demise of DACA as we know it, no new DACA applications will be taken after September 5, 2017, but current DACA participants will keep their deportation protection status and temporary work permits until those benefits expire. In addition, until October 5, 2017, individual applications for renewal of DACA status will be accepted for those persons whose existing DACA status expires on or before March 5, 2018. Estimates are that at least 97% of all DACA participants are a part of the mainstream workplace already. If they were to suddenly disappear, the impact on business would be crippling.
So, what does all this mean for employers that may be employing a DACA worker?
- Does an Employer have to terminate an employee that has a DACA temporary work permit? ABSOLUTELY NOT (at least not right off the bat). Employment authorization issued to a DACA eligible recipient carries with it a 2 year validity period, depending on when the work authorization was initially granted or renewed. However, unless an employee can show a valid form of employment eligibility for Form I-9 purposes when an employer re-verifies employment eligibility, then the employee must be terminated.
- How to Know if 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. An employer who asks an employee if they are a DACA participant runs the risk of potential discrimination. Employers must treat all employees equally.
- What should an Employer do when the work permit expires? When an employee’s work permit expires, the employer must re-verify the employee on Form I-9.If an employee presents documents establishing work eligibility at that time, the employee may continue working. If not, that employee must be terminated.
- Violations of Immigration Employment Practices – Overly Premature Activity: One area of extreme caution surrounds employers who start pulling all I-9 forms to determine who is a DACA beneficiary. Employers need to recognize that this can lead to violations of DACA’s antidiscrimination provisions as it results in creating two “classes” of employees – those that are DACA Beneficiaries, and non-DACA Beneficiaries. Similarly, an employer that refuses to hire a DACA employee simply because he or she presents a valid Employment Authorization Document (EAD) Card that has a future expiration may also run afoul of DACA’s anti-discrimination provisions.
Employers have a substantial responsibility in implementing a detailed, comprehensive, non-discriminatory policy that protects the rights of all employees – citizen, non-citizen, DACA beneficiary (current and future job applicants) or those in other non-immigrant or immigrant employment visa statuses. Understandably, some employers will want to help DACA employees during this uncertain time. Employers, however, should avoid making promises, including promises about future employment, which they may not be able to keep.
The lines in employment related immigration issues are very fine… a minor mistake that just slightly crosses the line could open the door to years of litigation, fines, media attention, investigations, and more importantly, just unneeded headaches in general. Given this, it is critical that employers work with experienced labor and employment counsel, such as Boznos Law from now to ensure proper compliance at every step of the way.
With over 33 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.