With new headlines seeming to pop up daily as the courts and Congress address the fate of the Deferred Action for Childhood Arrivals (DACA) program, employers have their hands full keeping track of how the national immigration debate affects their workers.
On September 5, 2017, the Trump administration announced the phaseout of DACA. The announcement put youth and young adults brought to the United States as children in danger of losing work authorization they gained under DACA. Those benefiting from the program, known as “Dreamers,” were to begin losing their work authorization on a rolling basis in March. But two federal court rulings, one from a judge in California on January 9 and another from a judge in New York on February 13, temporarily blocked the phaseout.
On February 14, a group of senators who had been working on immigration legislation announced that they had reached a deal to establish a path to citizenship for nearly two million Dreamers, but the plan failed to garner the necessary votes to pass. Other proposals also have been floated in recent months without gaining adequate support. Even if a bill eventually passes Congress, it is far from certain it will have President Donald Trump’s support.
What Employers Should Know
Regardless of what happens next, employers need to understand where they stand if they employ workers authorized to work under the DACA program. Elaine C. Young, a contributor to Utah Employment Law Letter and an attorney with Kirton McConkie in Salt Lake City, Utah, says employers most likely will encounter three scenarios:
- Employees whose DACA Employment Authorization Documents (EADs) are expiring or have expired and did not file renewals because they lacked funds for the filing fee or didn’t think they were eligible;
- Employees who are able to file only a renewal because of the court rulings; and
- Employees who filed renewals and their renewals are approved before their previous authorization expires.
“Employers should be aware that employees whose DACA EADs have expired are no longer authorized to work and that the court rulings did not work to automatically extend work authorization,” Young says. She also says employers should be aware that employees who filed renewal applications under the court rulings may have a gap in their work authorization.
Young says EADs take about 120 to 150 days to process and could take longer now that U.S. Citizenship and Immigration Services (USCIS) is accepting applications again under the court rulings. Employees whose DACA EADs expire on March 15, 2018, would not have been able to file a renewal but for the court rulings, which means their renewal may not be approved before their previous EADs expire.
“This will result in a gap in work authorization because DACA-related EAD renewals do not result in automatic extensions of work authorization like some other EAD categories,” Young says. “Employers should be prepared to take the hard step of terminating an employee who, unfortunately, does not have a new EAD with which to update [her] I-9.”
Young advises employers to refrain from giving legal advice to employees, but she says employers should be aware of developments that affect the work eligibility of Dreamers. Employers also need to make sure they follow their internal I-9 policies, track the expiration dates of EADs, and follow up with employees to be sure they have filed timely renewals. Then employers need to update I-9s as Dreamers bring in new EADs.
Patrick Taurel, an attorney with Clark Hill and a contributor to Nevada Employment Law Letter, also says that employers have to ensure their workforce is authorized and that the best way to do that is to institute proper I-9 processes. He reminds employers that it’s unlawful to terminate employees based on their national origin if they are authorized to work in the United States.
Since the legal status of some employees is uncertain, Taurel says many employers want to help their DACA employees. He advises employers to encourage employees to consult with an immigration lawyer since they may be eligible for pathways to legal status without knowing it.
In addition, employers can help by keeping in mind that DACA employees are going through a stressful and uncertain time and may be more vulnerable to depression, sleeplessness, and other issues because of their unique challenges.
Because of the court rulings, USCIS has updated its guidance for immigrants benefiting from the DACA program. The guidance spells out that USCIS isn’t accepting requests from people who have never before been granted deferred action under DACA. But because of the federal court orders, the agency has resumed accepting requests to renew grants of deferred action. The guidance states, “Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.”
USCIS also will not accept or approve requests for “advance parole” from DACA recipients, the guidance says. Under the DACA program, recipients could apply for permission to travel abroad, referred to as advance parole, if the travel was for a valid humanitarian, educational, or employment purpose.