The Trump administration has announced that it will end the Deferred Action for Childhood Arrivals (DACA) program, which has provided removal protection (i.e., from deportation) and temporary work permits to nearly 800,000 undocumented immigrants who entered the U.S. as children. The move, which was opposed by many employers, ends speculation about the fate of the controversial Obama-era program.
Fortunately, the Trump administration did not immediately cancel the DACA status of participants, but instead opted to phase out the program over the next couple of years. Although no new DACA applications will be taken after September 5, 2017, 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. However, after October 5, no DACA renewal applications will be allowed.
So what does this mean for employers?
The Trump administration’s decision to roll back the DACA program has raised a number of important questions for businesses that employ DACA workers:
- Do you have to terminate employees who have DACA temporary work permits?
No, at least not initially. Employees who have received work permits – known as Employment Authorization Cards – through the DACA program may continue to work until their work permits expire.
- What about when the work permit expires?
It depends. When an employee’s work permit expires, the employer must re-verify the employee on Form I-9 – just as it would with any other employee having temporary work authorization. If the employee presents documents establishing work eligibility at that time, the employee may continue working. If not, the employer must terminate the employee or potentially face fines for violating federal immigration law. Employers should understand, however, that the employee need not provide another work permit under DACA at the time of re-verification. Work authorization may be established by presenting any form of documentation acceptable for Form I-9 purposes. Many DACA participants have sought green cards or other forms of immigration relief and may be able to present documents that establish work eligibility even without continued DACA protection.
- Can employers terminate DACA employees now, rather than waiting to see if the employees will be able to continue to work later?
No. Some employers may be tempted to terminate employees whose future work eligibility is uncertain (to avoid unnecessary training costs or to prevent staffing issues later) — but don’t do it. Terminating DACA employees with valid work permits could lead to discrimination claims based on national origin or race.
- Could the DACA program be revived?
It’s possible, although uncertain. A number of lawsuits challenging the ending of DACA have already been filed, but it’s not clear how those will play out. If those legal challenges are not successful, the only hope is for a legislative solution that statutorily restores DACA’s protections and benefits. In announcing DACA’s rollback, Attorney General Jeff Sessions noted that the program was being phased out rather than abruptly ended to “create a time period for Congress to act – should it so choose.” And, in the days since the announcement, President Trump has signaled that he’s open to cutting a bipartisan deal to preserve DACA’s protections. However, given the divisiveness that currently exists in Congress, any possible legislative fix will likely face an uphill battle.
- Is there anything an employer can do to reassure an apprehensive DACA employee?
Understandably, some employers will want to help DACA employees during this uncertain time. Employers, however, should avoid making any promises, including promises about future employment, which they may not be able to keep. Of course, employers who are concerned about DACA’s demise, and the impact this will have on their employees, may contact their representatives in Congress and lobby for legislation to maintain the protections that DACA has afforded.