On September 5, 2017 the Trump Administration announced its decision to end the Deferred Action for Childhood Arrivals program (DACA). Enacted during the Obama Administration, DACA protected certain undocumented immigrants brought to the United States as children from deportation and allowed them to receive employment authorization. Over 800,000 work permits were granted under this program, and many workplaces have employees who are currently covered by the DACA program. DACA is set to expire on March 5, 2018, although Congress may enact new legislation before that time. DACA recipients with Employment Authorization Documents (EAD or work permits) expiring before March 2018 have until October 5, 2017 to file a renewal application under DACA, possibly extending their work eligibility until early 2020.
Once an employee’s work permit expires, he or she will no longer be eligible to work in the United States. Employers can (and should) continue to employ DACA recipients with valid work permits, but once the permit expires it will be unlawful to do so. Employers should expect to lose employees who are only authorized to work in the United States through DACA.
DACA recipients do not have an obligation to inform their employer whether they are a DACA recipient or are working pursuant to a work permit issued on that basis. Employers also cannot ask employees whether they are DACA recipients or how they obtained their work permits. If an employee voluntarily informs an employer about this status an employer may then discuss these issues.
Employers may face civil fines for knowingly hiring or continuing to employ someone who is not authorized to work in the United States. In order to protect themselves, employers should speak with employees whose work permit is set to expire and let them know that they will need to show proof of their work authorization when the permit expires. The employer should request acceptable I-9 documents but should not specifically mention DACA or nationality. Employers also should not conduct random or selective checks on employees who are immigrants or whom they perceive to be immigrants.
While it is illegal to employ DACA recipients after their work permit expires, employers should not terminate DACA recipients before the expiration date on the basis that their work permit is expiring at a future date and cannot be extended. Employers also should not decline to hire an employee or rescind an outstanding job offer because that person’s work authorization is set to expire in the future.
Copyright 2017 by Noland, Hamerly, Etienne & Hoss, Lindsey Berg-James
This article is intended to address topics of general interest, and should not be taken as legal advice.