The end of DACA and how it will affect employers
On Sept. 5, 2017, the Trump administration announced that it was phasing out the Deferred Action for Childhood Arrivals (DACA). Ending DACA will affect not just the young people covered under the program, but also thousands of U.S. companies nationwide.
DHS reports that approximately 800,000 people have received DACA nationwide. Over 8,100 of those individuals reside in Wisconsin, and over 6,600 such Wisconsinites have already renewed or applied to renew their DACA as of March 2017.
What is DACA?
Former President Obama instituted DACA in 2012 by executive order to protect certain undocumented youth. The program provides a two-year Employment Authorization Document card (EAD) and it shields beneficiaries from deportation during its validity. Beneficiaries have been able to renew their DACA/EAD benefits for additional two-year periods while the program has been in place.
DACA is not permanent residence or citizenship and it does not, by itself, make beneficiaries eligible for any other immigration benefit, whether temporary or permanent.
Who could get DACA?
DACA applicants had to meet all of the following criteria:
- Came to U.S. before turning 16;
- Lived in U.S. continuously since at least June 15, 2007;
- Were physically present in U.S. on June 15, 2012;
- Had no legal immigration status as of June 15, 2012;
- Were under the age of 31 as of June 15, 2012;
- Obtained a U.S. high school diploma or GED certificate, or were in the process of obtaining one, or are honorably discharged veterans of the U.S. Coast Guard or Armed Forces;
- Did not commit any felonies, or one significant misdemeanor, or three minor misdemeanors; and
- Did not pose a risk to public safety or national security.
How will ending DACA affect U.S. companies?
Ending DACA will have a significant impact on thousands of employers nationwide. Most DACA beneficiaries are not eligible to obtain work authorization otherwise, so their employment will have to be terminated once their DACA ends. Consequently, U.S. companies will lose hundreds of thousands of productive employees, forcing employers to incur turnover costs such as advertising, recruiting, training, and certification costs.
USCIS states that, as of Aug. 20, 2017, the agency already had 106,341 DACA applications pending. Another 201,678 DACA/EADs will expire throughout the remainder of 2017. USCIS reports that 275,344 individuals will have their DACA/EADs expire in 2018, and another 321,920 DACAs will expire in 2019.
Some of these individuals are still high school students, but the majority of DACA holders are valuable employees of the companies they serve. Many DACA holders have graduated from college and some hold Master’s or Ph.D. degrees. DACA beneficiaries contribute to virtually all industries, including technology, medicine, manufacturing, and education. Terminating their employment authorization affects not just them, but also their employers and their employers’ clients, patrons, students, or patients.
How does an employer know that an employee’s work authorization expires?
Employers cannot ask employees about their immigration status. But the law requires U.S. employers to verify the identity and employment eligibility of all new hires, regardless of citizenship, nationality, or ethnicity. This is done through the I-9 Employment Eligibility Verification and, in some cases, E-Verify.
When an employee’s U.S. employment authorization is temporary, the law requires employers to re-verify that employee’s right to work upon expiration. The expiration date must be noted on form I-9 at the time of completing the initial I-9.
Employers should have mechanisms to track these expiration dates. If the employer is enrolled in E-Verify, the E-Verify system may issue a reminder that the EAD is about to expire. However, employers should not rely entirely on E-Verify reminders because they are not generated in all cases. Employers cannot continue to employ someone beyond the expiration date of the employment authorization, unless they show evidence of continued authorization.
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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