Background

Although not unexpected, the Trump Administration’s phase-out of the Deferred Action for Childhood Arrivals (DACA) program leaves employers in a quandary on logical next steps: Which employees will be affected? How many employees will we lose, and when? Is there anything we need to do? What position, if any, should the company take on this issue?

Earlier this week, the Trump Administration announced that it will end the DACA program. The 2012 Obama Administration policy initiative removed the threat of deportation, giving certain individuals who entered the US illegally as children or overstayed their valid visas temporary permission to stay in the US. Individuals who received deferred action through DACA were also eligible to receive a two-year period of work authorization. The Department of Homeland Security (DHS) granted DACA to those individuals viewed as low enforcement priorities. Among other criteria, an applicant must have been enrolled in or graduated from high school, had no convictions for serious offenses and must not have posed a threat to national security or public safety. It is estimated that DACA benefited nearly 800,000 undocumented immigrants.

DHS will wind down DACA over the next six months. Specifically, US Citizenship and Immigration Services (USCIS) will no longer accept any initial DACA applications. DACA renewal applications must be filed by October 5, 2017 for those with approvals that expire between now and March 5, 2018, effectively setting an expiration date for DACA based work authorization in 2020. Current DACA based employment authorization documents will remain valid until they expire. Absent legislative action or court intervention in the interim, DACA beneficiaries will no longer benefit from deferred action and will no longer possess work authorization after their current DACA approval and employment authorization document ends.

What does this mean for employers?

The rescission of DACA adds to a mounting list of concerns for US employers that rely on a foreign national workforce. Employers must manage the potential loss of employees amidst a rancorous national discourse on immigration. Employers may be caught in a balancing act between immigration compliance and compassion towards valued employees – a challenge not lost on our government. To be sure, any alternative immigration relief for DACA beneficiaries will be ultimately decided by Congress. Meanwhile, companies can use this time to take a proactive approach to ensure the employment eligibility of, and communicate a broader message of diversity and inclusion to, their entire employee population.

Employers should consider the following action items:

  • Have a mechanism in place to monitor and alert Human Resources of employment authorization expiration dates;
  • Develop a standard communication to remind employees of employment reverification requirements at least 90 days before the date reverification is required;
  • Foster an open dialogue to address employee concerns as they relate to the rescission of DACA or other immigration-related Executive Orders in a manner that does not violate company policy;
  • Identify escalation protocols for anyone who has questions and concerns to speak with internal global mobility or immigration teams in conjunction with corporate immigration counsel; and
  • Conduct an audit of Employment Eligibility Verification Forms (Form I-9) for the entire workforce to ensure compliance.

Employers must terminate an employee who cannot provide evidence of employment authorization at the time of reverification.

Although managing staffing needs is a real concern, to not run afoul of the Immigration and Nationality Act or Title VII of the Civil Rights Act, employers should not:

  • Preemptively terminate an employee for having work authorization based on DACA;
  • Ask DACA beneficiaries to identify themselves;
  • Selectively choose to reverify employment eligibility for employees on the basis of immigration status; or
  • Rely on employees to notify Human Resources of expiring employment authorization documents.

If employers choose to proactively review Forms I-9 and identify employees who hold employment authorization documents based on DACA to better understand the potential impact on the workforce, they should ensure that no decision-maker is part of that process to avoid any discrimination or retaliation issues.

How will an employer know whether an employment authorization document has been issued based on DACA? An employment authorization document that references "C33" under the "Category" heading (that appears on both the front and back of the card) has been issued to a DACA recipient. Nothing on the Form I-9 itself would indicate that the employee possesses a DACA-based (Category "C33") employment authorization document. An employer that does not maintain copies of documents presented for employment eligibility verification purposes should not go back to employees to ask for them.

If desired, multinational employers may consider assigning DACA beneficiaries to work outside the United States for a related entity. However, companies should carefully review with counsel the employment, immigration and tax implications of doing so.

For now, employers will have to wait to see if Congress takes action to preserve DACA and what impact it may have on DACA beneficiaries. In addition to following the guidance discussed above, employers should continue to monitor any developments.