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Administration Announces End of DACA Program: FAQs for Employers

Immigration Law Alert Grant Sovern, Eric D. Ledbetter

The federal government announced today that it would end the Deferred Action for Childhood Arrivals (DACA) program in six months. DACA granted temporary reprieve from deportation and temporary work permits to people who were brought to the U.S. as children without authorization, graduated from high school or were in school, and had not committed crimes. Over 800,000 two-year work permits were granted to people in this situation. No new DACA work permits will be issued unless the applications were already filed. Renewal work permit applications will not be granted if filed after October 5, 2017.

With 800,000 people using these work permits across the country it is possible that many employers will have employees in this situation. The following Frequently Asked Questions and answers will help answer many of those initial questions employers and employees have with this news. 

1. What does the announcement regarding ending DACA mean for our company?

The majority of DACA recipients will not have work authorization to continue working in the U.S. after their employment authorization card expires, unless Congress acts before they expire. So employers should expect to lose employees who are only authorized to work through DACA. Practically, employers have a responsibility to re-verify the Form I-9 when any individual's work permit (Employment Authorization Document - EAD) expires, if the employee presented that document when he or she originally completed the Form I-9 upon hire. Most DACA recipients would have presented an EAD when they originally began working, and they will not be able to renew that EAD after the program is fully rescinded. In limited circumstances, they may have another option for work authorization as discussed in more detail below.

2. When will the work authorization end for our employees who are DACA recipients?

Employees who have already received DACA work permits (EAD) may continue to work according to the validity of their current EADs. DACA recipients with EADs expiring by March 5, 2018 have until October 5, 2017 to file a renewal application under DACA. The DACA EAD renewal application should be filed as soon as possible to minimize any potential gap in work authorization. The renewal can be granted for an additional two years of DACA employment authorization.

3. How will we know if we have any DACA recipients in our employment?

DACA recipients do not have an obligation to inform their employer whether they are a DACA recipient or are working pursuant to an EAD issued on the basis of DACA. What's more, an employer may not ask any employee whether they are a DACA recipient or how they obtained their work permit. If an employee informs an employer about this status an employer may discuss these issues.

4. What are the penalties for continuing to employ a DACA recipient after his or her work permit expires?

If ICE discovers it, an employer may face a civil fine of $375 to $14,050 per employee for knowingly hiring or continuing to employ someone who is not authorized to work in the U.S. The level of fine depends on what percentage of the employees are not authorized to work and whether the employer has been fined previously.

5. What should HR say to DACA employees about their I-9 and E-Verify (if applicable) record?

As with any employee whose temporary work authorization is expiring on the Form I-9, it is the employer's responsibility to approach the employee and see if s/he will have a new basis for work authorization before the expiration date of their current work authorization. Keep in mind that a DACA renewal application must be approved before the current DACA work permit expires in order to avoid a gap in work authorization. In addition, remember that some DACA recipients may have obtained a different basis for an EAD since they last completed their Form I-9. For example, some individuals may have obtained a new EAD or even a permanent green card based on marriage to a U.S. citizen. Under the I-9 rules, an employer may never ask for a specific I-9 document but instead must present the list of acceptable documents to the employee and ask them if s/he has an acceptable I-9 document or combination of documents from the list. The list of acceptable I-9 documents can be found on the last page of the Form I-9. If an employee is able to present a suitable document or combination of documents to demonstrate a new basis for work authorization, the employer must complete Section 3 of the Form I-9 to re-verify the employee's work authorization. Under the E-Verify rules, the E-Verify record should not be updated for an existing employee with a new basis for work authorization.

6. Will people who have had DACA benefits now be deported?

DACA recipients whose EADs will expire because DACA has been rescinded will no longer be protected by administrative relief from deportation (unless they have some other way to stay in the U.S.). While the administration has said it does not have a current plan to specifically target former DACA recipients for deportation, the administration has authorized ICE officers to deport any and all people in the U.S. who are deportable. 

7. As the employer of DACA recipients, are we legally obligated to inform the government when their work authorization ends?

No. Like other foreign nationals whose work authorization expires, employers are NOT legally obligated to inform the government when a DACA recipients' work authorization (EAD) expires. 

8. Is there anything we can do to help our DACA employees gain a lawful status and/or work authorization? 

In the absence of the DACA program, the vast majority of DACA recipients will go back to being deportable, without work authorization in the United States, unless Congress takes steps to create a new legal pathway for them. However, every DACA employee's situation is potentially different and employers should not attempt to give immigration advice about their status in the United States. Instead, employers should recommend that the employee speak to an experienced immigration attorney who can gather all of the relevant information and help them evaluate legal risks and any available immigration options.

9. Why can’t DACA recipients simply return to their home country and get a legal visa?

The majority of, if not all, DACA recipients cannot simply return to their home countries and obtain a legal visa because of the amount of time they've spent in the United States without a valid immigration status. Because of this accrued unlawful presence, a DACA recipient's departure out of the United States would likely trigger a multi-year bar to reentering the U.S., making the majority of DACA recipients practically ineligible for immigrant (green card) or nonimmigrant visas.

10. Why can't DACA recipients rely on the DREAM Act after the President rescinds the DACA program?

The federal DREAM Act never made it through Congress to become an actual law. The DREAM Act was passed by the U.S. House of Representatives in December 2010 but did not survive a filibuster in the U.S. Senate. Following that, the previous administration created the DACA program through Executive Action. With the upcoming repeal of the DACA program, the focus is once again on Congress to pass the DREAM Act or some version thereof. The current DREAM bill is pending in both houses of Congress and has garnered bipartisan support. President Trump's six-month postponement in repealing the DACA program provides an opportunity for Congress to act.

11. May DACA recipients enroll in a college/university and get student work authorization?

Whether or not a DACA recipient may enroll in a college/university after DACA ends completely will be dependent on each college or university's policy for undocumented students. Most DACA recipients will not be eligible to enroll in a college or university as an international student in F-1 or J-1 visa status, and therefore will not be eligible for the work authorization options for F-1 or J-1 international students.

12. What will happen next for people on DACA?

Legally once a person's DACA benefits expire or are rescinded, the person goes back to being deportable (unless they have some other way to stay in the US). While the administration has said it does not have a current plan to specifically target former DACA recipients for deportation, the administration has authorized ICE officers to deport any and all people in the US who are deportable. 

Many companies, business and community leaders, and immigrant advocacy organizations, have called on Congress to take action to protect DACA recipients before the President ends DACA in six months. If Congress acts to protect DACA recipients, they will likely do so with a bill such as the DREAM Act which has been introduced in Congress, but never enacted. 

If you have any questions please contact Grant Sovern at (608) 283-2668 / [email protected], Eric Ledbetter at (312) 715-5018 / [email protected],or your local Quarles & Brady attorney.