From my Immigration Law Colleague:
Close to 800,000 U.S. residents are believed to have DACA status nationwide. The Deferred Action for Childhood Arrivals (DACA) program allows people who arrived in the U.S. as undocumented immigrant children to avoid deportation and to obtain two-year renewable work authorization cards (EAD).
On September 5, 2017, Attorney General Jeff Sessions announced that the Department of Homeland Security (DHS) will end the DACA program in six months. This means that DACA recipients with current work authorization will remain authorized to work only until the expiration date on their employment authorization document (EAD).
In response to the White House decision, many industries including Silicon Valley giants are speaking out against it, and executives from Apple, Microsoft, Google and Facebook expressed their support for DACA beneficiaries echoing sentiments that many of them might be their own essential employees. For instance, Apple currently employs 250 DACA beneficiaries.
But even as most employers wish to protect their DACA employees, they should be mindful of both immigration and anti-discrimination laws. They should also expect to lose some workers who are only authorized to work through their EAD card. Here are our do’s and don’ts for employers hiring or employing DACA beneficiaries.
• Don’t ask to self-identify. DACA recipients do not have an obligation to inform their employers whether they are under the DACA program, and an employer may not ask any employees whether they are one or how they obtained their work permit.
• Don’t use your I-9 forms to identify potential DACA beneficiaries, as you might risk running afoul of anti-discrimination laws by singling out employees you think may be DACA recipients, even if the intent is to help.
• Don’t refuse employment. Employers must be careful not to discriminate against DACA beneficiaries simply because they present an EAD that will expire in the future. The relevant rules indicate that employers “cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.”
• Continue to hire. Employees who have already received DACA work permits (EAD) may continue to work according to the validity of their current EADs.
• Do rely on a properly executed Form I-9. Employers have a responsibility to re-verify the Form I-9 when any individual’s work permit (EAD) expires if the employee presented that document when he or she originally completed the Form I-9 upon hire. So employers should rely on the I-9 expiration date to address the length of work authorization rather than on the announcement about DACA termination.
Contact info: Meredith S. Campbell Chair, Employment and Labor Group, Shulman Rogers firstname.lastname@example.org | T 301.255.0550 | F 301.230.2891