US Immigration Update: How Changes to DACA Impact Your Employees

On September 5, Attorney General, Jeff Sessions, announced that Deferred Action for Childhood Arrivals (DACA) would be phased out in six (6) months if Congress fails to act on its own to pass immigration legislation. As initially designed, the DACA program provided administrative relief from removal/deportation to eligible immigrant youth (also known as Dreamers) who entered the United States when they were children. As part of the DACA petitioning process, an applicant was required to demonstrate, inter alia, that he/she had entered the U.S. as a child, that he/she met the education requirement (completed school or attending school) and had no arrests or criminal record of any significance. Approved DACA applicants were granted a temporary employment authorization document (EAD), typically valid for a period of two years, which EAD allowed them to work legally in the United States. Such document is also a stepping stone to obtaining a valid driver’s license, a social security number, and, ultimately, seeking college and graduate-level education.  

The DACA program was initiated under the Obama administration by way of executive order.  The Trump administration, under threat of a legal attack against DACA, has chosen to rescind the executive order and has issued a demand to Congress to take action to codify or address the treatment of the approximately 800,000 Dreamers who will lose the protections afforded under DACA.

For all of the Dreamers who face losing their grant of deferred action status, new questions will surface concerning their protections and next steps. As driver’s licenses, EADs, and other identity documents begin to expire, DACA recipients will begin to seek guidance and legal assistance to determine how to maneuver through daily life.  

A hallmark of the DACA program, at its outset, was that personal information shared in the DACA petitioning process, necessary to obtain the benefits, would not be shared with ICE (Immigration and Customs Enforcement), the law enforcement arm of the Department of Homeland Security. It is not yet clear whether this guarantee will remain or if it already has shifted. A major concern exists that DACA recipients may seek to avoid interaction with the legal system for fear of removal. Victims of criminal acts, victims of domestic violence, litigants in matters involving civil disputes, business disputes, landlord tenant, family law, or criminal law, may be concerned that appearance in local courts may expose them to immigration authorities and premature negative consequences.

What Does The DACA Rescission Mean For DACA Workers?

DHS will process applications for extension of DACA benefits from current beneficiaries whose benefits will expire on or before March 5, 2018, and that have been accepted by DHS as of October 5, 2017. Thus, a current beneficiary whose DACA benefits will expire March 6, 2018, or later is ineligible to file for an extension;

Unless their status is revoked, DACA recipients with current work authorization will remain authorized to work until the expiration date on their EADs; and

If a DACA recipient has an approved advance parole (travel) document, DHS will honor the document for international travel purposes. DHS, however, will not approve any new applications for advance parole under the DACA program and pending applications for advance parole will be administratively closed and the fees will be refunded.

DHS published a Fact Sheet on DACA rescission, as well as an FAQ regarding the effect of  DACA rescission on DACA recipients.

What May An Employer Do and Not Do as The Result of The DACA Rescission? 

1. Employers should not review its I-9 records to validate which employees are DACA beneficiaries.  

Unlike H-1B, L-1, TN or other skilled worker visa holders, DACA beneficiaries are not employer-sponsored. As such, employers do not have a means to determine which workers may be DACA workers – other than reviewing their I-9 records. But employers can run afoul of anti-discrimination provisions of the immigration laws by using I-9 information to determine who is a DACA recipient, as any information in an I-9 may not be used for purposes other than for enforcement of the INA.  

2. Employers should rely exclusively on its I-9 records in determining the length of approved work authorization. 

If employment is limited in duration, the I-9 forms will include the expiration date of an employee’s temporary work authorization. Employers should rely on such expiration date in addressing the length of work authorization – not on DHS’ announcement about the rescission of DACA. The employer’s obligation is to ensure that it engages in timely re-verification of Form I-9s for workers with time-limited work authorization. 

3. Employers should insure that their I-9 record keeping is up-to-date, and that they comply with Form I-9 Section 3 re-verification obligations. 

Employers will help avoid employer sanction violations by closely reviewing the re-verification obligations and periodically conducting self-audits of their I-9 records.   

Here is a link from the National Immigration Law Center with helpful information regarding DACA and Employment. 

By Meyner & Landis LLP, US, a Transatlantic Law International affiliated firm. 

For further information or for any assistance regarding US immigration law please contact Anthony Silato at usimmigration@transatlanticlaw.com

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