DACA Rescission | Information for Employers

The DACA Program is Ending – Here are Some Do’s and Don’ts for Employers

On September 5, the Trump Administration announced that it will end the Deferred Action for Childhood Arrivals (DACA) program, which was enacted in 2012 by former President Obama. Beneficiaries of DACA—also known as “Dreamers”—encompass approximately 800,000 young, undocumented immigrants who were brought to the U.S. as minors. Assuming that they met certain requirements relating to age, education, and criminal background, DACA shielded these individuals from deportation and allowed them to lawfully work in the U.S. for a renewable two-year period. As DACA winds down between now and March 5, 2018, President Trump has urged Congress to come up with a more permanent solution for the Dreamers, declaring that he will revisit the issue if legislators fail to act.
In the meantime, the rescission of DACA is presenting significant legal and logistical challenges for the thousands of organizations that employ Dreamers. A report by the Center for American Progress estimates that in the absence of Congressional action on the matter, an estimated 30,000 Dreamers could lose their jobs each month for the next two years, costing employers up to $6.3 billion due to workforce turnover.

What actions should employers take—and avoid taking—following the announcement that DACA will end? Here are some do’s and don’ts to help safeguard organizations from violations of immigration law, as well as charges of discrimination:

- Do regularly review I-9 records and have a system in place to identify when temporary work permits are about to expire. Organizations that knowingly employ individuals with expired work permits could face penalties of thousands of dollars per unauthorized worker, as well as criminal sanctions. DACA recipients with valid permits are still authorized to work following the September 5 announcement—but unless Congress acts to shield Dreamers, employers will have no other legal choice than to lay them off as their permits expire.
- Don’t ask employees for more information than is required by Form I-9. Complying with immigration law must be balanced against avoiding allegations of discrimination, so keep the following “don’ts” in mind:
  - Don’t ask employees if they are DACA recipients, even if your intention is to demonstrate empathy or try to help them. Dreamers are not required to disclose the details of their immigration status.
  - Don’t lay off employees prematurely or rescind the job offers of individuals who are authorized to work in the U.S. just because their work permits will expire in the near future.
- Do remind employees to reapply for employment authorization. DACA recipients whose permits expire before March 5, 2018 may submit applications for renewal by October 5. If approved, their renewed permits would authorize them to work until 2020. Reminding employees about this deadline may help avoid immigration violations and reduce workforce turnover. A good practice is to send this reminder to the entire workforce so that no one feels singled out because of their nationality.
- Do prepare to bolster recruitment efforts. Unless and until Congress enacts legislation that allows the Dreamers to continue legally living and working in the U.S., employers must face the reality that they may lose several of their employees on short notice. Therefore, it is prudent to begin formulating a plan to replace these individuals in order to minimize disruption in the workforce.
- Do consult an attorney or HR professional. Complying with immigration law can be risky, with violations leading to stiff civil and criminal penalties. Consulting with an HR expert will help your organization safely navigate legal changes like the rescission of DACA while avoiding actions that could be considered discriminatory.