With the calendar hitting March 5—the original date for the Deferred Action for Childhood Arrivals (DACA) program to begin winding down—employers need to consider the date’s impact on their workforce.
Although two different federal courts have issued rulings temporarily blocking DACA’s phaseout, many employees benefiting from the program are still likely to see their work authorization expire. The Obama-era program allows youth and young adults who were brought to the United States as children to receive renewable 2-year permits to live and work in the country legally by passing a background check and paying a fee.
The Trump administration announced on September 5, 2017, that DACA would be phased out, meaning individuals benefiting from the program would lose their authorization on a rolling basis after March 5, 2018. President Donald Trump challenged Congress to come up with a solution, but all such attempts have failed.
Even though the federal court rulings allow DACA recipients—often referred to as Dreamers—to again file for renewals, many will lose their authorization because they weren’t allowed to begin the process in time for their renewal applications to be approved, which takes 120 to 150 days or more. For individuals with permits expiring after March 5, the deadline to apply for renewal was October 5, 2017. The court rulings didn’t occur until January 9 and February 13, 2018.
Meaning for Employers
Many DACA recipients will have a gap in employment eligibility because they didn’t have the ability to file far enough in advance of their expiration date, says Elaine C. Young, a contributor to Utah Employment Law Letter and an attorney with Kirton McConkie in Salt Lake City, Utah. She explains that when a DACA employment authorization document (EAD) expires, it is not automatically renewed by a pending renewal application, as is the case for other EAD categories.
“So if the EAD expires, the employee cannot work until the new EAD is approved,” Young says. “For example, if an employee had a DACA EAD expiring on March 7, 2018, the employee would have normally filed a DACA renewal 120-150 days earlier” on October 7, 2017. But U.S. Citizenship and Immigration Services (USCIS) stopped receiving DACA renewal applications on October 5, 2017. At the time, if an employee filed a renewal application more than 150 days in advance, USCIS rejected the application.
“Even if the employee acted as soon as possible to assemble and file a DACA renewal application right after the first court decision, with USCIS processing times exceeding four to five months, there would still be a gap in employment eligibility of about two months,” Young says.
What Employers Should Do
Young says employers with affected employees should follow existing rules related to I-9 forms to ensure that employees are authorized to work. If employers continue to knowingly employ someone with an expired authorization, U.S. Immigration and Customs Enforcement (ICE) could impose fines as low as $548 per employee for first-time violators if less than 10 percent of their I-9s contain knowing-or-continuing-to-employ violations, up to $19,242 per employee for repeat violators with more significant compliance problems, she says.
Leigh Cole, an editor of Vermont Employment Law Letter and attorney with Dinse, Knapp & McAndrew, P.C., in Burlington, Vermont, says employers should not take any action around DACA. Instead, they should continue using their normal I-9 practices and reverifying I-9s that expire. She says employers shouldn’t make any assumptions about employees’ immigration status when their I-9s expire “because employers may not have any way to know that someone has DACA.”
Cole says individuals who presented EADs for I-9 purposes (List A documents), which expire and therefore must be reverified, could have green cards as lawful permanent residents by the time their I-9 expires. Or for reverification, they may present a driver’s license (List B document) and an unrestricted Social Security card (List C document) or other acceptable I-9 documentation.
“For reverification, the employer must allow the employee to present documentation of his or her choice, just like when the I-9 initially is completed at time of hire,” Cole says. Also, for reverification, the employer is required to give the employee a reasonable period of time to present replacement documentation.
But if the employer comes to have actual or constructive knowledge (reason to know) that the employee doesn’t have immigration status and won’t be able to offer replacement I-9 documentation, then the employer must not allow the employee to work until she presents proper replacement I-9 documentation, Cole says.
|Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.|