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President-elect Donald Trump promised during his campaign to repeal the executive action that created the Deferred Action for Childhood Arrivals (DACA) program, but many think he won't do that immediately, or at all. Instead, he's more likely to deny renewals under the program, immigration attorneys predict.
DACA has granted deportation relief and work permits to 740,000 immigrants who came to the United States as children, providing these individuals with two years of deferred action from deportation and eligibility to work.
For more information about Donald Trump's workplace policies and how they effect HR professionals, check out the SHRM resources provided below:
Trump is "more likely to end some parts of it than other parts," said Stephen Legomsky, former chief counsel of U.S. Citizenship and Immigration Services and senior counsel to the Secretary of Homeland Security. It's "hard to say whether he'll bar renewals—I'd say that's 50-50."
Legomsky doubted Trump would take away the work permits of those DACA participants whose work authorization has not yet expired. "I think that's unlikely, because the regulations would require the DHS [Department of Homeland Security] to serve notice on each of the more than 700,000 current DACA holders."
Angelo Paparelli, an attorney with Seyfarth Shaw in Los Angeles and New York City, predicted Trump would not immediately terminate DACA but instead would announce that existing DACA beneficiaries could remain in deferred action status and continue to use their employment authorization documents (EADs).
[SHRM members-only toolkit:
Understanding and Obtaining U.S. Employment Visas]
"An immediate termination would unnecessarily rile an already active and restive group, the dreamers, who clearly forced President [Barack] Obama's hand to grant DACA relief in 2012," he said. "Recall that dreamers regularly interrupted President Obama's speeches and deftly used social media. This time, the dreamers are allied with additional constituencies—their employers, friends, family."
The dreamers are named for legislation—The Development, Relief and Education for Alien Minors (DREAM) Act—introduced in 2012 but never passed. The bill was intended to create permanent reprieve from removal for those under the age of 31 as of June 15, 2012, who came to the United States before their 16th birthday.
Recently, bipartisan legislation was
introduced in the Senate to preserve the legal work status of DACA program participants. Whether the bill makes it through both chambers of Congress and Trump signs it remains to be seen.
Trump's administration probably will prevent those in the DACA program from renewing their work permits when they expire, Paparelli said. However, Trump has
softened his tone on DACA since the election. Paparelli added, "One can never say, since President[-elect] Trump's base has been forgiving of his reversals or drastic modifications of campaign positions."
"I am not sure if Trump will follow through on repealing DACA," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "There are conflicting opinions on this within the immigration community. I do think employers need to be prepared if he does."
If employers filled out I-9s based on DACA EADs, they will not necessarily know those people are in their workforce, he added.
All DACA EADs bear the category code C33, noted Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. If the employer retains photocopies of the EAD attached to the I-9 record and the EAD was invalidated, the DHS likely would maintain the employer should have known the employee was no longer authorized under DACA, if DACA is struck down immediately.
Borovska said that it would be extremely burdensome for large employers to go through all of their I-9s to look for EADs marked with C33.
Moreover, Anton Mertens, an attorney with Burr & Forman in Atlanta, observed that while new hires provide I-9 documents, "This information is recorded, but images of the documents are not required to be kept on file."
Reverification is one option, he noted.
But reverification prior to the expiration of EADs might lead to lawsuits and liability, cautioned Peter Asaad, an attorney with Quarles & Brady in Washington, D.C. "The I-9 is to be completed at a very specific time—at the start of employment," he said.
Employers should not be engaged in figuring out the basis for employment authorization, said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan. "Don't inadvertently discriminate against employees with DACA-based work permits," she cautioned. Mdivani predicted, "Existing DACA work permits will not be nullified and will continue until they expire, but they won't be renewed."
If DACA work permits are shot down, "it will be a grim reality: Valuable talent will have to be let go," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "In many cases, these are engineers, technicians, scientists, financial consultants, law enforcement, first responders—each who entered as children, many educated in our fine public universities and private colleges." Cancellation of the DACA program would, he said, lead to "exporting talent because the system—as it currently exists—is broken."
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