Immigration Law Insights

On September 5, 2017, the Department of Homeland Security ("DHS") issued a memorandum rescinding an Obama-era program known as Deferred Action for Childhood Arrivals ("DACA"). DACA permits certain undocumented aliens that came to the United States before their sixteenth birthday to remain in the United States and apply for renewable two (2) year periods of work authorization. DACA does not provide beneficiaries with lawful immigration status, but many view the program as the first step on the path to citizenship for "Dreamers." DHS will "wind down" DACA over the next six (6) months, and there are some issues employers should consider in the interim.

Previously Issued DACA/Work Authorization Will Remain Valid

More than 800,000 individuals have received work authorization through DACA since the program began in 2012. Immediate revocation of DACA-related work authorization would drastically reduce the workforce. DHS has indicated DACA beneficiaries will be permitted to continue to work until their Employment Authorization Document ("EAD") expires despite the program ending. As a result, employers need not be concerned with whether an EAD presented for I-9 purposes was issued pursuant to DACA or some other program.

New DACA Requests and Renewals Still Being Processed

DHS will continue to process DACA initial requests, renewals, and associated work authorization applications received by September 5, 2017. Additionally, DACA beneficiaries whose work authorization expires between September 5, 2017, and March 5, 2018, may file to renew their EAD until October 5, 2017. The Trump administration has confirmed that any newly issued EADs will be valid for a two (2) year period. Employers might consider notifying all employees of DACA's rescission and encourage employees to contact legal counsel with questions. Employers should not deny an offer of employment or terminate its employment relationship with an employee because of their status as a DACA recipient due to potential discrimination claims.

Continue to Reverify EADs

When employees present an EAD for Form I-9 purposes, employers are required to reverify that work authorization after the EAD expiration. Ultimately, DACA's rescission could lead to thousands of individuals losing work authorization, and employers should terminate the employment relationship if a worker is unable to provide proper work authorization following the EAD expiration. Employer penalties for employing an individual without work authorization can range from $539.00 to $4,313.00 per occurrence. Additionally, employers should remember that an employee previously issued DACA may show different documentation to demonstrate authorization to work. Employers should prioritize I-9 training for individuals completing Form I-9 to ensure compliance.

Potential Legislation?

While DACA is officially set to end in March, the President has invited Congress to consider legislation that would continue to permit DACA beneficiaries to work in the United States. At this point, it is too early to tell how potential legislation might look, but legislators will have to hurry if they are going to have it in place before DACA ends.