Employment Law

The Latest Immigration Controversy—DACA Repealed, Suit Filed

On Tuesday, President Donald Trump announced that the federal Deferred Action for Childhood Arrivals (DACA) program will be phased out over the next 6 months.

DACA

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In response, 11 states and the District of Columbia have now filed suit alleging that this repeal of DACA violates the equal protection clause of the Constitution and the federal Administrative Procedure Act.

As we await next steps, this new controversy is rapidly becoming reminiscent of the travel ban efforts from earlier this year.

What Is DACA?

DACA, which President Barack Obama established via Executive Order in 2012, provides temporary legal status and work authorization to undocumented persons who initially entered the U.S. as children. To qualify for the program, qualified individuals must submit to extensive background checks and pay income taxes.

DACA has been a controversial subject for some time. In 2014, President Obama attempted to further expand the program; however, these efforts were enjoined, then blocked by a 4-4 split decision of the Supreme Court.

Meanwhile, the initial program continued to provide employment authorization and renewals to some 750,000 registered young adults.

Current Controversy

During his campaign, President Trump initially vowed to abolish the program completely; however, he later expressed intent to “work something out” for those registrants who would lose their otherwise valid employment authorization and protection from deportation without continuation of or replacement for the program.

Many of these registrants are currently employed and/or in educational programs and are contributing to the workforce and economy. Plus, because the qualified registrants entered the U.S. as children, there is widespread concern that deportation would send many of these people “back” to countries they’ve never considered home.

Yet, a number of state attorneys general and governors expressed frustration over the continuation of the program, vowing to file suit in federal court if the program weren’t repealed by September 5—which is exactly what has now happened.

Now, the United States Citizenship and Immigration Services (USCIS) is no longer accepting initial requests for DACA. Requests received before September 5, 2017, will be processed. Additionally, renewal requests received before October 5, 2017, will be processed, but only for registrants whose benefits would expire before March 5, 2018.

Registrants whose benefits expire after this date will lose work authorization and protection from deportation unless a Congressional or executive solution is reached to preserve their temporary statuses (or the repeal is enjoined in federal court).

What Employers Need to Know

If and when these workers’ temporary authorizations do expire and the workers are unable to present renewal paperwork or alternative authorization, their employers will become forced to terminate employment, and the individuals may become subject to deportation. Numerous business leaders, including those from Microsoft, Apple, and Facebook, have spoken out against the repeal and have signed off on a joint letter to the Trump administration.

Meanwhile, employers who are concerned about the practical effects of this controversy should stay informed and continue to treat all qualified workers consistently. It is crucial that employers not refuse otherwise valid employment authorization documents simply because they may be temporary or because there is concern that the employees may be DACA registrants whose work eligibility may expire.

Rather, as is the case with any temporary employment authorization, employers that encounter temporary authorizations should devise a consistently applied reminder system to alert them in advance of the expiration dates, leaving a reasonable amount of time for reverification.

If and when an employee’s employment authorization does expire, then the employer should reverify that worker using Section 3 of Form I-9. If, at that time, the employee cannot produce extended or new employment authorization, then employment should be suspended or terminated until such authorization can be produced.

As additional developments arise, stay tuned for further insight and practical guidance from BLR®, including interviews with Employer Counsel Network attorneys.

I-9 callout

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic