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Sep 7, 201712:05 PMOpen Mic

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The end of DACA and how it will affect employers

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When does DACA terminate?

Not everyone’s DACA/EAD terminates at once. The Trump administration is not revoking existing DACA/EADs. Individuals who already have valid DACA/EADs will continue to have work authorization until their EAD expires.

In addition, thousands of DACA recipients are able to renew their existing DACA for another two years after Sept. 5, 2017. USCIS will continue to process DACA/EAD renewals that were already pending on Sept. 5, 2017. Moreover, USCIS will continue to accept DACA/EAD renewal applications until Oct. 5, 2017, for individuals whose DACA/EAD is set to expire between Sept. 5, 2017 and Mar. 5, 2018.

Avoid discriminatory practices!

Once employers ask employees to present re-verification of their employment authorization per the I-9 rules, many employees whose right to work was based on DACA may not be able to show continued employment authorization. However, employers should note that not all foreign workers with a temporary employment authorization are DACA beneficiaries. 

EAD cards are issued under dozens of categories unrelated to DACA. Some EADs are renewable an unlimited number of times. In addition, some EADs get an automatic 180-day extension upon filing for renewal (DACA does not), allowing employees to continue working while the renewal applications are pending. Therefore, it is imperative that employers follow I-9 procedures correctly and consistently to avoid charges of employment discrimination under the Immigration and Nationality Act or Title VII of the Civil Rights Act.

Should employers review all I-9s for foreign workers?

Employers are cautioned against singling out foreign workers for I-9 internal audit purposes. The Department of Justice and the Department of Homeland Security advise that internal audits should not be conducted based on employees’ citizenship status or national origin because that may amount to employment discrimination.

What penalties may employers face?

Depending on the case, employers may face penalties between $539 and $21,563 per each worker lacking work authorization. At the same time, requiring specific documents of employees solely because of their national origin or citizenship status may expose employers to discrimination penalties between $178 and $1,782 per worker. If an employer takes adverse action based on discriminatory I-9 procedures against employees who are authorized to work, the employer may face penalties between $445 and $17,816 per worker.

Raluca (Luca) Vais-Ottosen is an immigration attorney at DeWitt Ross & Stevens.

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