HR Management & Compliance

Suit filed over Trump’s phaseout of DACA: what employers should know

On September 5, President Donald Trump announced that the federal Deferred Action for Childhood Arrivals (DACA) program will be phased out over the next six months.

In response, 11 states and the District of Columbia have filed suit, alleging that the repeal of DACA violates the Equal Protection Clause of the U.S. Constitution and the federal Administrative Procedure Act.

As observers await the next steps, the DACA 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 United States 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 expand the program. However, those efforts were enjoined and then blocked by a 4-4 split decision from the U.S. Supreme Court. Meanwhile, the initial program continued to provide employment authorization and renewals to 750,000 registered young adults.

Current controversy

During his campaign, President Trump initially vowed to abolish DACA completely. However, he later expressed his intent to “work something out” for registrants who would lose their otherwise valid employment authorization and protection from deportation without continuation of or replacement for the program. Many registrants are currently employed or enrolled in educational programs and are contributing to the workforce and economy. Plus, because qualified registrants entered the United States as children, there is widespread concern that deportation would send many of them “back” to countries they’ve never considered home.

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expressed frustration over the continuation of DACA, vowing to file suit in federal court if the program wasn’t repealed by September 5—which is exactly what has happened.

Now, U.S. Citizenship and Immigration Services (USCIS) is no longer accepting initial requests for DACA. Requests that were 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 that date will lose work authorization and protection from deportation unless a congressional or executive solution is reached to preserve their temporary status (or the repeal is enjoined in federal court).

What employers need to know

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

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

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

If an employee’s employment authorization expires, the employer should reverify the worker using Section 3 of Form I-9. If the employee cannot produce extended or new employment authorization, employment should be suspended or terminated until such authorization can be produced.

Stay tuned for additional developments and practical guidance.

Stay up to date on all of the complex reporting requirements for immigrant employees by attending the one-day event: I-9 Compliance and Immigration Enforcement Update: Tactical Strategies for Completing Documentation, Surviving ICE Inspections, and Avoiding Costly Penalties, being held in San Francisco, California, on November 9, 2017, and San Antonio, Texas, on December 6, 2017. Click here to learn more or to register today!

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