What Should Employers Do with Their DACA Employees?

Since President Donald Trump's announcement rescinding the Deferred Action for Childhood Arrivals (DACA) program, media focus has been on the 800,000 DACA recipients. However, there is going to be another entity affected: employers of those individuals.

Not only do organizations need to be concerned about the loss of valuable employees, but they also need to stay in compliance with immigration laws. Employees cannot legally work without proof of their identity and work authorization. Thus, when a DACA recipient's Employment Authorization Document (EAD) expires, the employer will need to discharge the worker, unless he or she has found another way to obtain work authorization, which would be very unlikely.

[SHRM members-only toolkit: Complying with Form I-9 Requirements]

But don't start discharging workers prematurely. DACA recipients are currently still authorized to work legally.

So what should employers do? It all depends on the worker's EAD expiration date. Although no renewable EADs will be issued after March 5, 2018, this doesn't mean all DACA recipients will be ineligible to work after that date.

As a hypothetical example: DACA employee Jose has an EAD that expires on March 4, 2018. He can renew his DACA status and EAD (if he files a renewal by Oct. 5) and be eligible to work until about March 2020. Another employee, Mohammed, has an EAD pursuant to DACA that expires on March 6, 2018. Unfortunately, renewal of his DACA status is not an option, and so March 6 is the date his employment must terminate. Thus, employers must be observant of an EAD's expiration date.

You can tell if an employee's EAD is through DACA by checking the code on the front of the EAD card. For DACA, the code is C33.

Some employers may ask, "Why can't I just discharge DACA recipients now?" Congress may soon pass the Dream Act or some other legislation that will provide for lawful employment for DACA recipients; if this happens, employers won't have to face the issue. 

Some employers may be thinking that they will just look the other way and not terminate DACA recipients when their work authorization expires. Although it's understandable that employers would not want to hurt their DACA employees, be aware of the ramifications of this action. If an employer continues to employ a worker after his or her work authorization expires and no other work authorization is provided, the employer is subject to knowingly employing an undocumented worker. The fine for a first offense ranges from $539 to over $4,000, with a fine of over $3,000 being the most likely. If an employer has five DACA employees that it retains without work authorization, it is looking at a fine of $15,000—before Immigration and Customs Enforcement has even looked at the organization's Form I-9s for substantive violations. So, even if your heart may tell you to keep DACA recipients without work authorization, listen to your head.

Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. He is the co-author of the new book The I-9 and E-Verify Handbook (Alan House Publishing, 2017).

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