The DACA Debate Continues – What Employers Need to Know

The beginning of the end of the Deferred Action for Childhood Arrivals (DACA) program is upon us – or is it? DACA, the program that provided deportation relief and work authorization to certain undocumented migrants who were brought to the United States as children, was formally terminated by the Trump Administration in early September. Effective September 5, 2017, applications for new DACA benefits were no longer accepted. Further, October 5, 2017 marked the deadline for renewal applications by current beneficiaries of the DACA program whose Employment Authorization Documents (EAD) were set to expire before March 5, 2018 . Although each of these new and renewal requests received prior to their respective deadline will be adjudicated by the United States Citizenship & Immigration Services (USCIS) on an individual, case-by-case basis, the DACA program is most certainly winding down. Of course, Congress has been given until March 5, 2018 to amend or extend the DACA program, but will it? Or will President Trump act to save the DACA “Dreamers”?

While we wait to see whether Congress and/or the Trump Administration take any action, employers must understand the impact that the unraveling of the DACA program will have on its affected workforce and must be aware to avoid some legal pitfalls. Here are a few things that employers need to know:

  • Employees who are DACA beneficiaries remain legally authorized to work throughout the validity period of their individual work authorization. DACA benefits are generally valid for two years from the date of issuance.
  • Employers should rely on their Form I-9 compliance records and completed Forms I-9 expiration dates to confirm employees’ work authorization expiration dates.
  • An employer is obligated to confirm timely reverification of an employee’s expiring work authorization under the Form I-9 rules, but must not treat DACA beneficiaries differently during the employment reverification process.
  • Employers may not restrict an employee’s choice of acceptable documents presented for purposes of verifying identity and/or work authorization.
  • Employers must continue to accept employees’ valid work authorization documents and must avoid taking any adverse actions against DACA beneficiaries due to the winding down of the program, as those actions may be interpreted as unlawful discrimination based on national origin or race.
  • Once an individual employee’s DACA and employment authorization documents expire, the individual is no longer considered lawfully present in the United States and is not authorized to work.

The experienced lawyers and HR professionals at Clark & Gotzler will continue to monitor the work of Congress and the Trump Administration as it pertains to the DACA debate. For more information, or if you have questions about employees who are DACA beneficiaries, I-9 forms, etc., please contact Clark & Gotzler lawyers and HR professionals at info@clarkgotzler.com or 1-866-223-8808.