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The End of DACA: What Employers Need to Know

The Deferred Action for Childhood Arrivals Plan (DACA) was created in 2012 through an executive action by President Barack Obama. DACA provides relief from removal (colloquially referred to as “deportation”) and temporary work permits to nearly 800,000 undocumented immigrants who came to the United States as children and met certain age, educational, and criminal background criteria. On September 5, 2017, U.S. Attorney General Jeff Sessions announced that the program will be rescinded and unwound over the next six months. The Department of Homeland Security immediately stopped accepting new DACA applications; however, pending applications will still be considered. DACA recipients whose work permits expire on or before March 5, 2018, may apply for a renewal until October 5, 2017, but these special work permits will be phased out as they individually expire from 2018 to early 2020.

Businesses that fail to terminate an employee whose DACA work permit has expired could face steep penalties, including fines and jail time. In order to stay up-to-date on employee eligibility, it is important to keep I-9 records current and to review them on a regular basis. A “ticker system,” which notifies employers six months before an employee’s temporary employment documents are due to expire, is a helpful way of staying remaining compliant with Form I-9 requirements.

On the other hand, businesses that prematurely terminate DACA workers prior to the expiration of their approved work eligibility period can risk violating various anti-discrimination laws. A DACA recipient is eligible to work until his or her permit expires and cannot be fired, based on DACA status, before that time. Similarly, employers cannot refuse to hire an applicant based on his or her status as a DACA recipient so long as the applicant has a valid work permit. Importantly, employees are not required to disclose their DACA status, and in the same vein, employers should not ask or single out employees who are believed to be DACA recipients.

If businesses wish to be proactive in addressing DACA’s rescission, correspondence on the subject should be delivered on a company-wide basis, and affected employees whose DACA work authorization permit expires before March 5, 2018 should be encouraged to apply for renewal before October 5, 2017.