What Should Employers Do Now that DACA Is Ending?

HR departments should ensure they have solid I-9 compliance procedures in place

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As the federal government winds down the Deferred Action for Childhood Arrivals (DACA) program, HR professionals may have questions about how the decision affects their workforce. Immigration attorneys told SHRM Online that it's critical to ensure I-9 records are in order.

Businesses should continue following recommended practices for Form I-9 compliance, said Sarah Hawk, an attorney with Ogletree Deakins in Atlanta and Raleigh, N.C. Their records and practices should be up to date and reviewed on a regular basis, she added.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]

Although the appropriate I-9 evaluation should be determined on a case-by-case basis, the safest route is to continue using the "tickler system" employers may already have in place that alerts them when temporary employment documents are about to expire, said Mitch Wexler, an attorney with Fragomen in Los Angeles and Irvine, Calif. 

An employment authorization document (EAD)—which is also known as an EAD card or a work permit—may be issued for various types of immigration categories, including under the DACA program.

"Many EAD cards are for a limited duration," Wexler explained. Employers may continue to reverify EAD cards without specifically calling out DACA beneficiaries.

Hawk noted that DACA beneficiaries will remain work-authorized throughout the validity period of their permit.

Mira Mdivani, an immigration attorney in Overland Park, Kan., suggested that HR professionals consider the following questions when evaluating their I-9 compliance efforts:

  • Does the employer understand the consequences of corporate immigration noncompliance?
  • Is there a designated and trained corporate immigration compliance professional on staff?
  • Does the company have a written corporate immigration compliance plan, along with up-to-date policies and procedures?

Mdivani said the compliance plan should include I-9 administrator training, internal I-9 audits, correction of practices that may cause errors and other measures on the U.S. Immigration and Customs Enforcement Best Practices List.

"Don't do business immigration compliance yourself," she added. "Under current circumstances, this is one of the most complex and dangerous areas of legal and HR practice."

Unwinding DACA

The DACA program was set in motion through a 2012 executive action by President Barack Obama. It provided deportation relief and work permits for a renewable two-year period 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 federal program would be rescinded and unwound over a six-month period ending March 5. "[T]he executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions," he said. "Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch."

The six-month wind-down process will enable the Department of Homeland Security (DHS) to conduct an orderly change and create a time period for Congress to act, if it so chooses, Sessions said.

DHS Acting Secretary Elaine Duke said in a Sept. 5 statement that no new applications would be accepted as of Sept. 6. Pending applications will still be considered, as will renewals for current DACA recipients whose permits expire on or before March 5, 2018—if the DHS receives and accepts the application by Oct. 5. Permits that expire on March 6, 2018, or thereafter will not be eligible for renewal.

The department will "continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate," Duke said.

Legal Risks

There are several risks for employers in light of the decision to rescind the DACA program. Businesses may face discrimination claims if they terminate the employment of—or decline to offer employment to—DACA recipients with valid work permits, Mdivani said.

Hawk noted that employers should avoid singling out any one person who may be a DACA beneficiary and should be consistent with their treatment of all employees.

Businesses also run the risk of employing workers after the expiration of their work permit. Employers that don't have a tickler system in place may want to set up a system that sends a reminder six months in advance of an expiring work authorization, Hawk said.

Additionally, employers have to be careful about going overboard in trying to aid DACA recipients. Employees are not required to disclose their DACA status and employers shouldn't ask, Hawk said. HR professionals and supervisors also shouldn't ask about employees' future plans even if workers self-disclose their DACA status, she said, adding that employers may want to have a list of resources readily available for affected workers.

Some businesses have decided to send out a notification to all employees (without singling out anyone) about DACA-related resources or put together a centralized information page on the company's internal website, Wexler noted.

Business Risks

In addition to legal risks, employers also face operational risks because of the disruption that ending the DACA program may cause when businesses lose valuable employees, Mdivani said.

Hawk noted that business groups are actively voicing their opposition to the decision to end DACA.

For example, Mark Zuckerberg, founder and CEO of Facebook, said in a statement, "The decision to end DACA is not just wrong. It is particularly cruel to offer young people the American dream, encourage them to come out of the shadows and trust our government, and then punish them for it."

He called on Congress to pass legislation that gives DACA recipients a pathway to citizenship. 

"Who knows what will happen next?" Wexler said. With all the comments from business groups—especially in the tech community—in support of DACA, the pressure on the federal government to come up with a solution will continue to mount, he said.

 

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