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Employers need to make preparations as DACA sunset nears

President Donald Trump’s announcement of an end to the Deferred Action for Childhood Arrivals (DACA) program has prompted uncertainty not only for those benefiting from the program but also for their employers. 

The program has benefitted an estimated 800,000 young people, known as Dreamers—undocumented immigrants brought to the United States as children. Many of those individuals will face deportation after the program expires on March 5, 2018. In announcing the end of the program, the administration urged Congress to decide what to do about it and adopt a solution.

A lawsuit filed by representatives of 15 states and Washington, D.C., is an attempt to stop the sunset of the program, but its outcome isn’t expected soon so employers need to plan what to do.

Some employers, such as Microsoft and Apple, have vowed to go to bat for their employees benefiting from the program by paying for legal assistance and urging Congress to act. Other employers are exploring their options and seeking advice

“Employers recognize that many DACA recipients are contributing members of the workforce in fields across the spectrum, from service and hospitality to engineering and medicine,” Ruth M. Willars, a partner in the law firm Monty & Ramirez LLP in Houston, Texas, says. “Understandably, these employers want to know how long they can expect to retain their DACA employees, whether they need to terminate employees who no longer have work authorization, and what they can do to help these employees remain in the United States and in the workforce.”

If the program ends, Willars says the effects on employers will be gradual. Individuals whose DACA benefits are set to expire before March 5 must file a renewal application by October 5 to renew their work authorization for an additional two years. After October 5, the United States Citizenship and Immigration Service will no longer accept renewal applications, she says. But employees that benefit from DACA still are eligible to work until the expiration date of their work permit.

What employers should do
“We recommend that employers examine the employee’s Forms I-9 to determine whether an employee’s work permit is set to expire,” Willars says. Also, employers should provide a 90-day reminder to any employees whose employment permits are set to expire.

For employees whose work permits have expired, employers can ask those employees to produce evidence that they are still eligible to work. “If they cannot produce evidence of their continued eligibility to work, employers will be forced to lay off those employees,” Willars says.

“Employers are required to verify an applicant’s employment authorization and reverify an employee’s continued employment eligibility,” Willars says. “However, we caution employers that they are prohibited from asking individual employees about their immigration status because of federal antidiscrimination laws.” Employers should request only that employees provide support of their employment eligibility and not whether they are a DACA recipient or have any particular immigration status, she says.

Willars also urges employers not to take premature action “as it can lead to substantial risk to them and their companies.” Also, it may be unlawful discrimination to terminate without cause immigrant employees before their work authorization expires. She urges employers to contact their general counsel or an employment law attorney to make sure they are following the law.

If the DACA program ends on schedule, many beneficiaries will be deportable and won’t be able to legally work in the United States. So Willars says employers may want to send a companywide email to all employees with general information about DACA renewals. Such a communication can recommend that employees affected by the end of DACA speak to an experienced immigration attorney who can give them a complete and accurate legal assessment and discuss the options available to them based on their particular case. But she says employers should not attempt to offer immigration advice to their employees.

Effort to stop the DACA sunset
The states’ lawsuit, which was filed in a New York federal court on September 6, claims that Trump’s decision to end DACA was fueled by discrimination, violates due process, and violates the federal Administrative Procedure Act (APA). The APA also is the law cited by 10 other states that had threatened a lawsuit had Trump decided not to end the program.

Texas District Judge Andrew Hanen cited the APA in his decision preventing an expansion of DACA. He said the expansion of DACA and another program protecting parents of DACA beneficiaries would need to go through the rulemaking process. Now supporters of DACA say ending the program should require going through that lengthy process of collecting and examining comments from the public.

Willars says states have a lot to lose if DACA is dissolved in six months since those benefiting from the program make up a significant part of the country’s workforce, “and if they are no longer able to work, it will reduce the number of employees in all industries and lead to worker shortages.”

“Realistically, it is unknown if the case can be resolved within the six-month window,” Willars says. “Additionally, the pressure for Congress to act within the six-month period is short and may not happen. At this time, all we can do is wait and see. Consequently, employers should prepare for the end of DACA within the next six months.”

Need to learn more? Join us at the 22nd Advanced Employment Issues Symposium where Monty & Ramirez LLP attorneys Ruth Willars and Jacob Monty will present Form I-9 and National Origin/Citizenship-Based Discrimination: How to Minimize Legal Risks in Recruiting Employment Verification and Re-verficiation, and Avoid ICE Penalties. This session will focus on avoiding violations under Title VII and recommend strategies for self-auditing your practices for managing Form I-9s to avoid hefty ICE penalties and potential legal claims. Monty will review the new Smart Form I-9 as well as how to correct I-9 errors, get the documentation you need from employees, and handle a situation where you determine that a worker doesn’t have the documentation to prove he or she is authorized to work in the United States. To learn more, click here.