President Trump delayed the rescission of the Deferred Action for Childhood Arrivals (DACA) program until March 5, 2018, to allow for Congress to act on a solution. According to a report from the Center for American Progress, an estimated 91% of the close to 800,000 DACA recipients are employed in the United States. Every week of delay means that thousands of DACA recipients are losing work authorization, and an estimated 300,000 “Dreamers” will lose their work authorization between March 6 to November 6, 2018, without Congressional or Executive action according to a study by FWD.
Less than a month away from March 5, Democrats and Republicans appear far from a compromise in Congress, and many employers are concerned about the impact to their workforce of such a significant population of young, educated workers losing work authorization.
Considerations for Employers with Employees on EAD, including DACA Recipients
- Review your current workforce – Review your Forms I-9 and determine which employees presented an Employment Authorization Document (EAD/I-766) for the Form I-9 and calendar when their work authorization will expire. Remind those employees who presented EADs to file for a renewal work authorization document several months in advance of the expiration date. Plan for what the employer may do if the employee is unable to timely present continued proof of work authorization. Do not ask employees if they are a DACA recipient as this may raise discrimination issues.
- Determine if any alternate immigration options may be available – EAD holders, including DACA recipients, may be eligible for employment-based immigration options, such as H-1B Specialty Occupation or Trade NAFTA (TN) Professional for consular processing outside the U.S., if they did not accrue unlawful presence (because they were approved for DACA before turning age 18 or shortly thereafter) or are eligible for a waiver for unlawful presence. Some DACA holders may also be eligible for permanent residence based on a family relationship.
- Do not terminate work authorized employees and be wary of making a decision not to hire work-authorized job applicants if solely due to a future potential loss of work authorization – Although employers may be wary of losing key contributors in their workforce on March 5, employers should be careful regarding potential violations and penalties for discrimination arising from questioning individuals about their U.S. immigration status and if they are DACA recipients.
- Timely Reverify the Forms I-9 – For employees who presented for the Form I-9 proof of work authorization with an expiration date, such as an EAD, employers should reverify their employment authorization no later than the date that employment authorization expires. If an employee cannot provide proof of current employment authorization, employers should be aware that it is against the law to continue to employ employees the employer knows lacks valid work authorization.
Employers should also be consistent. For example, be consistent with implementation on your termination and leave policies. Otherwise, the employer could face discrimination charges. The employer could also face civil fines for Form I-9 and immigration compliance violations and also possible imprisonment if found to be engaging in a pattern or practice of hiring unauthorized workers.
Contact your Foster attorney to prepare a proactive strategy and explore potential alternate options that may be available for DACA holders to maintain work authorization.