Business owners need to be proactive with DACA changes

The Deferred Action for Childhood Arrivals Plan (DACA) was created in 2012 through an executive action by President Barack Obama. DACA provides relief from removal (colloquially referred to as “deportation”) and temporary work permits to nearly 800,000 undocumented immigrants who came to the United States as children and met certain age, educational, and criminal background criteria.

On Sept. 5, U.S. Attorney General Jeff Sessions announced that the program will be rescinded and unwound over the next six months. The Department of Homeland Security (DHS) immediately stopped accepting new DACA applications but will continue to adjudicate pending applications. Importantly, with respect to DACA renewals for recipients whose work permits expire on or before March 5, 2018, DHS will accept renewal applications until Oct. 5, but these special work permits will be phased out as they individually expire from 2018 to early 2020.

Once a DACA recipient’s benefits expire, the individual becomes immediately subject to removal. At this time, however, the President’s administration has not expressed any current intention to specifically target former DACA recipients for removal proceedings.

Ending the DACA program presents unique challenges and important ramifications to employers for a number of reasons. First, businesses that fail to terminate an employee whose DACA work permit has expired could face steep penalties, including fines and jail time. At the same time, however, employers may not prematurely terminate a DACA recipient’s employment prior to the expiration of his or her approved work eligibility period because this conduct would likely constitute national origin discrimination under Title VII of the Civil Rights Act of 1964, the Immigration and Nationality Act of 1965, and the Arkansas Civil Rights Act of 1993.

Simply stated, a DACA recipient is eligible to work in the United States until his or her permit expires, and as such cannot be separated from employment based on DACA status before that time. Similarly, employers cannot refuse to hire an applicant based on his or her status as a DACA recipient so long as the applicant has a valid work permit.

Importantly, employees are not required to disclose their DACA status, and in the same vein, employers should not ask or single out employees who are believed to be DACA recipients or otherwise require the employee to produce a specific type of document evidencing work authorization.

To remain compliant with the ever-changing landscape of U.S. immigration law, like any situation involving the upcoming expiration of an employee’s temporary work authorization, employers should approach employees and ask, in general terms, whether they will have work authorization before the current authorization expires.

Relatedly, because employers are prohibited from requiring a specific form of documentary evidence to demonstrate work authorization, employers should provide affected employees with a list of acceptable Form I-9 documents and allow the employees to present a new basis for work authorization from the provided list. This is important because, with respect to DACA recipients specifically, the work authorization may have been extended under the conditions for renewal described above, or on an entirely different basis, such as permanent residency based on marriage, military service, or a number of other categories.

To ease the administration of this process and to ensure compliance with Form I-9’s requirements, employers should consider implementing a “ticker system,” whereby the employer receives an automatic notice six months before any employee’s temporary employment documents are due to expire.

If businesses wish to be proactive in addressing DACA’s rescission, correspondence on the subject should be delivered on a company-wide basis, and affected employees whose DACA work authorization permit expires before March 5, 2018, should be encouraged to apply for renewal before Oct. 5.
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Editor’s note: Misty Wilson Borkowski is a director with the law firm of Cross, Gunter, Witherspoon & Galchus P.C., a labor and employment law firm with offices in Little Rock and Springdale. The opinions expressed are those of the author.