End of DACA Can Have Serious Consequences for Employers

As the NMM Immigration Blog recently reported, the Department of Justice (DOJ) has ordered the Department of Homeland Security (DHS) to begin winding down the Obama-era Deferred Action for Childhood Arrivals program (DACA).

DACA was first implemented in 2012 to defer deportation enforcement actions against certain undocumented individuals in the United States who entered the United States at very young ages and met other eligibility criteria.  Along with deferring deportation enforcement, DACA permitted eligible undocumented immigrants to apply for temporary work authorization cards, known as the Form I-766, Employment Authorization Document (EAD Card).

According to an August 2017 Migration Policy Center Report, nearly 887,000 undocumented immigrants applied for and were granted DACA protection since 2012.  All were issued EAD Cards that were valid for two years and were renewable every two years thereafter.  The recent DOJ decision to rescind and phase out DACA prevents further EAD Card renewals.  DACA is being phased out; DOJ did not order immediate rescission.

Given that nearly all of the 887,000 undocumented immigrants issued EAD Cards are employed, the end of DACA could pose risks to employers of DACA beneficiaries.  Most of these employers are unaware that they even employ DACA beneficiaries.  This, however, is not a defense in the strict-liability world of the Immigration and Nationality Act (the “Act”).

Two great (and costly) concerns: (1) violations of unfair immigration employment practices under the anti-discrimination provisions of the Act when overly and prematurely proactive; and (2) significant civil and criminal penalties for employing unauthorized immigrants, when not proactive enough.  Confusing, right?  

Unfortunately, neither DOJ nor DHS has released any guidance about the DACA program as it relates to employers.  Everything remains an open question.

Violations of Unfair Immigration Employment Practices – Premature Proactivity

An employer may run afoul of unfair immigration employment practices, which would violate the anti-discrimination provisions of the Act as a result of the DACA recession.  For example, before Human Resources starts pulling all of the historical I-9s to determine who is a DACA beneficiary, employers must recognize that this can lead to violations of Act’s anti-discrimination provisions, as it results in creating separate classes of employees: DACA Beneficiaries and Non-DACA Beneficiaries.

Another example is the DACA Beneficiary who applies for a job, is offered a job, and when completing the Form I-9, Employment Eligibility Form, provides the EAD Card issued under DACA, but with an expiration date that is two years away.  Given the lack of DOJ guidance on the issue and that the recession is a winding down of the DACA program, those with valid EAD Cards issued under DACA are lawfully able to seek and maintain employment.  An employer that refuses to hire a job applicant simply because the applicant presents a valid EAD Card that has a future expiration date, the employer may run afoul of the unfair immigration employment and anti-discrimination provisions of the Act.

Unlawful Employment of Unauthorized Immigrants Violations – Not Proactive Enough

As discussed in a 2016 NMM Immigration article, I-9 Verification and Compliance: Is the Employer the Root Cause of All Illegal Immigration?, the federal government and many states have deemed employers to be the “root cause of all illegal immigration.”  Immigration authorities have moved from workplace raids and searching for undocumented workers for deportation to work-site compliance searching for employers employing the undocumented.  Employers can face significant criminal and civil penalties for the unlawful employment of unauthorized immigrants.

You ask: what does this have to do with the DACA recession?

A straightforward answer: since 2012, over 887,000 undocumented immigrants applied for and were granted DACA protection and issued EAD Cards.  Of that 887,000, it is estimated that 97% are currently employed.  Given that the Act places the burden squarely and strictly on the employer when it comes to employment eligibility verification, employers are the ones who must actually implement and enforce the policies to ensure appropriate actions toward DACA beneficiary employees.  Employers have a substantial responsibility in implementing a detailed, comprehensive, non-discriminatory policy that protects the rights of all employees—citizens, non-citizens, DACA beneficiaries (current and future job applicants), or those in other non-immigrant or immigrant employment visa statuses.

The Trump Administration’s DACA recession is as important to human resource departments as it is to the actual DACA beneficiaries.  The lines in employment immigration issues are very fine…a minor mistake that just slightly crosses that line could open the door to years of litigation, fines, media attention, investigations, and more importantly, just a hassle.  Given this, it is crucial that employers work with outside immigration counsel from now on, to ensure proper compliance at every phase.

If you have any questions on DACA, or other immigration issues, please contact me at RGLahoud@nmmlaw.com.

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