The Trump administration announced that it will end the Deferred Action for Childhood Arrivals (DACA) program, which provided protection from deportation and temporary work authorization to nearly 800,000 undocumented immigrants who entered the United States as children. DACA provided recipients with an opportunity to live and work in the U.S. legally by issuing a renewable two-year Employment Authorization Document (EAD). The administration plans to phase out the program over the next two years. Earlier this month, the Department of Homeland Security stopped accepting new applications and requests for renewal. However, the DHS will not revoke a recipient’s EAD prior to its natural expiration date.
Unless legislation is passed by Congress that grants some kind of reprieve—whether a path to citizenship or more limited relief—DACA recipients will become deportable, beginning with those recipients whose EADs expire March 5, 2018. Considering the political fallout, it is an open question whether DACA recipients would actually be deported. While the administration has said it does not have a current plan to specifically target former DACA recipients, the administration has authorized ICE officers to deport any and all people in the U.S. who are deportable. Adding further uncertainty, President Trump has said that if Congress cannot pass immigration reform he will “revisit the issue,” apparently suggesting that he might reinstitute something like DACA. Though, it is difficult to tell how much credence this comment should be afforded.
Employers are obligated to re-verify their employees’ EADs when those documents expire. Hence, employers should maintain knowledge of which employees have EADs and when they expire. Shortly before expiration, the employer is responsible for approaching the employee and inquiring whether he or she has a new basis for work authorization. The employer must present the Form I-9 list of acceptable verification documents to the employee and ask if he or has an acceptable document or combination of documents from the list. The list of acceptable I-9 documents can be found on the last page of the Form I-9. Employers are prohibited from inquiring whether employees are DACA recipients or how they received their EADs.
Employees who cannot produce proper documentation authorizing them to work must be terminated. However, given the uncertainty in the coming months of whether Congress or the President will save DACA recipients from the risk of deportation, employers might consider placing DACA recipients on a callback list for rehire. This may make it easier to hold open a position and reemploy a DACA recipient in the event new executive action or legislation ensues.
Employers should be mindful that paying a DACA recipient whose EAD is expired can expose the employer to statutory fines from $375 to $14,050 per employee for knowingly continuing to employ someone who is not authorized to work. The level of fine depends on the percentage of employees who are not authorized to work and whether the employer has been fined in the past.
Conversely, an employer can face discrimination claims by acting on the knowledge that one of its employees is a DACA recipient and terminating that employee before his or her EAD expires. However, for the purposes of planning and contingency, an employer may want to privately review employment documents on file to determine which individuals are employed pursuant to an EAD. An employee whose work authorization is based on DACA will have an EAD that indicates employment eligibility based on Category C33. Employers are not legally obligated to inform the government that an employee’s EAD has expired.