On September 5, 2017, the Trump Administration announced the end of the Deferred Action for Childhood Arrivals (“DACA”) program.
DACA was implemented in 2012 to provide temporary legal status and work authorization to nearly 800,000 “dreamers,” who were brought to the United States as young children, with little or no memory of or connection to their birth countries. Participation in the program was limited to individuals: (1) brought to the U.S. before their 16th birthday; (2) under the age of 31; (3) who continuously resided in the U.S. since June 15, 2007; (4) who were in school, graduated or had obtained a high school diploma, a GED certificate, or were honorably discharged from the Armed Forces; and (5) without a criminal record involving a felony or significant misdemeanor.
Under DACA, dreamers could apply for a renewable, two-year work permit. Effective immediately, the Department of Homeland Security will no longer accept applications for the DACA program. Individuals already enrolled in the program will be allowed to continue working until their temporary work permits expire. Those individuals with work permits that expire by March 5, 2018 will be allowed to apply for a two-year renewal as long as applications are submitted and accepted by October 5, 2017. Pending applications for new permits and renewals for permits that expire after March 5, 2018 will be evaluated on a case-by-case basis.
There are nearly 13,000 workers in Kansas currently enrolled in the program, so how should employers respond to the announcement that DACA is ending?
Employers should not take adverse action against individuals because their employment authorization documents expire in the future. Work permits issued under DACA remain valid for up to 30 months. Taking adverse action by refusing to hire or terminating a worker based on the future expiration of an employment authorization document (“EAD”) could expose an employer to liability for national origin discrimination under Title VII or the anti-discrimination provisions of the Immigration and Nationality Act.
Verify that I-9 recordkeeping is updated. Now is a good time for employers to review all I-9 forms to verify that they are filled out properly and that any re-verification dates are properly calendared. Employers should not review I-9 records in an attempt to identify DACA beneficiaries because doing so could result in liability for discrimination. It may also be a violation of the E-Verify Memorandum of Understanding for those employers enrolled in the E-Verify program.
Rely on properly completed I-9 forms for re-verification purposes. Many (if not all) Form I-9 List A documents, including EAD cards, are subject to expiration dates. An expiration date will be reflected on the List A document itself and should be noted on the I-9 form. Upon expiration of a List A document, an employer has an obligation to re-verify an employee’s work authorization. Employers should rely exclusively on the expiration date reflected on the I-9 form for purposes of reverification. Employers should not ask employees to self-identify as DACA participants. As long as I-9 forms are properly completed and the employer regularly reviews those forms to verify compliance, the employer’s risk of sanctions should be minimal.
We will update you on any future developments involving the end of the DACA program. At this point, it appears that any extension of the program now rests with Congress, where recent reports suggest there is bipartisan interest in extending legal status and work authorization for dreamers. In the meantime, please contact us if you have any questions or need any advice regarding corporate immigration or any other employment law matters: 316.262.2671.
Diane H. Sorensen, Ryan M. Peck, Will B. Wohlford, Sabrina K. Standifer and Sarah G. Briley