The Trump Administration rescinded the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017. As an employer, you need to be aware what this may mean for your business, regardless of your political position on the issue. You need to know if you have any employees who are DACA beneficiaries and what the rescission means to their employment status with your company.
DACA was implemented in 2012 to allow certain individuals who came to the United States as undocumented children to receive a renewable two-year period of deferred action from deportation. Participants in the DACA program are often referred to as “Dreamers” and they are eligible for a work permit known as an Employment Authorization Document (EAD).
For the record, California and Texas have the highest numbers of DACA beneficiaries in the country, followed by New York, Illinois, and Florida. DACA provided work authorizations to approximately 700,000 – 800,000 individuals who would have otherwise been subject to deportation.
Under the rescission, the Department of Homeland Security has said that DACA beneficiaries will be allowed to retain both their DACA status and their EAD until those documents expire. Depending on when an individual last received it, DACA-issued EADs are due to expire sometime between this year and 2019. U.S. Citizenship and Immigration Services (USCIS) has stated that they will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Pending DACA renewal requests and associated applications for EADs where work authorizations will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request was filed prior to October 5, 2017.
DACA participants who have not filed renewal requests within these guidelines may face deportation upon the expiration of their current documents, and employers may face significant penalties if they employ a DACA participant with an expired EAD.
As an employer, how do you know if you have a DACA affected employee?
Audit your I-9 forms.
Upon hiring, employers are required to complete an I-9 form with the new hire. A DACA participant would have presented their current EAD for completing the form. As with all presented work authorization documents that expire, employers should have a system in place to monitor for expiring work authorization document dates and notify the employee at least 90-days prior to expiration that they must present a new and current work authorization form before the expiration date.
Related Reading: The New, New I-9 Form
An easy way to track Work authorization expiration dates is via a Human Resource Information System (HRIS) credential tracking tool. This feature allows you to create and track credentials that can be tied to employees. Within the tracking tool, automatic email notifications are created and sent to the employee, their manager and Human Resources to remind them that their work authorization must be renewed. These notifications can be set up via several date intervals to ensure that all parties are informed in a timely manner in order to take the appropriate steps needed to ensure compliance. Contact a Propel HR Representative to learn more about the HRIS tracking tool.
For those without the HRIS feature, many employers within required E-Verify states utilize the E-Verify system to help monitor for expiring work authorization dates. Others simply utilize a spreadsheet, e-calendar with reminders set, or an old-fashion “tickler file”. Regardless of how, it is crucial for employers to keep these records current to avoid compliance issues. If you haven’t already, you should schedule a complete I-9 audit as soon as possible.
Once the employee provides the new work authorization document, an employer is required to re-verify the employee using Section 3 of the Form I-9. Given that the DACA program is being phased out, current participants may not have a valid EAD once their current work authorization expires and may therefore NOT be eligible for continuing employment.
It is important to note that DACA participants are lawfully able to live and work in the United States until their current EADs expire. The program is being phased out and has not ended effective immediately. However, once an employee’s temporary EAD expires—regardless of whether they are a DACA participant or not—his continuing work authorization must be re-verified or they must stop working for the employer. There is no grace period once someone’s temporary work authorization expires.
Additional resources provided by DHS may be found at these links:
- Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA)
- DHS Renew Your DACA
- DHS Rescission of Deferred Action for Childhood Arrivals (DACA)
- DHS Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA)
- Fact Sheet: Rescission of Deferred Action for Childhood Arrivals (DACA)
Neither Propel PEO, Inc. nor Propel HR, Inc. is a law firm. This blog is intended for informational purposes only. It does not constitute legal advice and is not guaranteed to be correct, complete, or up‐to‐date.