On Sept. 5, President Trump announced he would end the Deferred Action for Childhood Arrivals (DACA) program in six months, giving Congress time to pass legislation to modify and continue the program. The decision has caused widespread consternation and confusion over what the government will do in the meantime.
“If Congress acts to protect DACA recipients, they will likely do so with a bill such as the DREAM Act which has been introduced in Congress, but never enacted,” notes attorney Grant Sovern of the law firm of Quarles & Brady. As this column was being written, the President was reaching out to Democrats in Congress, trying to get legislation passed to save major parts of DACA, a process also fraught with confusion.
The first thing you need to know is that as of Sept. 5 the U.S Citizenship and Immigration Services ceased accepting new or initial applications for DACA benefits, including renewable two-year work permits. Cases that were pending review at that time were administratively closed and the filing fees refunded. As of Aug. 20, there had been 106,341 such requests pending, including 34,487 initial requests and 71,854 renewals.
If your business employs any of the estimated 800,000 people who entered the United States under DACA, their Employment Authorization Documents (EADs) remain valid until they expire. (The 5,200 people whose EADs were scheduled to expire by March 5, 2018, had been given until Oct. 5, 2017 to file renewal applications).
You may want to do something to help, but here’s the hitch: Workers are not obligated to inform their employers whether the EADs they hold were obtained under the DACA program, Sovern points out. On top of that, it is illegal for an employer to ask any employee whether he or she is a DACA recipient or how they obtained their EAD. If an employee informs you about DACA status, however, then you may discuss these issues.
As is the case when other kinds of work authorizations expire, employers are not legally obligated to inform the government when a DACA employee’s EAD expires, Sovern says.
The Catch 22—you knew there had to be one—is that if Immigration and Customs Enforcement (ICE) discovers a current employee’s EAD has expired, the employer can be fined from $375 to $14,050 per employee for knowingly hiring or continuing to employ someone who is not authorized to work in the U.S. In addition, it is the employer’s responsibility to approach the employee and see if they will have a new basis for obtaining work authorization before their current authorization expires.
When it comes to the threat of deportation for DACA recipients whose EADs have expired, the administration has asserted that it has no specific plans to target them, but the fact remains that the law no longer protects them from deportation.
A complicating factor stems from persistent accusations that when the DACA program went into effect in 2012, Obama-era agencies allowed many of the 800,000 to enter the country in violation of the program’s own requirements, such as failing to meet the established age limits or possessing disqualifying criminal records.
You may feel sympathy for your workers who find themselves in this situation and who did everything the way they were supposed to, but Sovern warns employers to back away from giving them any specific advice in this highly complex field of law.
“Every DACA employee’s situation is potentially different and employers should not attempt to give immigration advice about their status in the U.S.,” he urges. “Instead, employers should recommend that the employee speak to an experienced immigration attorney who can gather all of the relevant information and help them evaluate legal risks and any available immigration options.”
David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.