The Department of Homeland Security (DHS) announced on September 5th that they have initiated the "orderly phase out" of the program known as DACA. What does this mean for employers and what actions, if any, need to be taken?
The Deferred Action for Childhood Arrivals (DACA) program allowed certain people (sometimes called “Dreamers”) who came to the United States as children – and who met several key requirements – to request deferred action from deportation for a period of two years. That deferred action could then be renewed, subject to approval. DACA also provides eligibility for temporary work authorization.
At this time, we don't recommend that employers take any immediate action related to the DHS announcement. It’s important not to attempt to identify DACA recipients based on I-9s, ask employees whether they are DACA participants, or make staffing decisions based on a potential loss of work authorization. These actions could increase the risk of a charge of employment discrimination.
Please keep in mind that work authorization from the DACA program will not immediately expire due to the program phase out. According to information released by DHS, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS. DACA benefits are generally valid for two years from the date of issuance. DHS will process new applications for DACA that were received prior to September 5th. Current DACA recipients with work authorization that will expire any time before March 5, 2018, will also be able to file applications for renewal up until October 5, 2017.
We recommend you complete I-9 reverification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.
There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point we do not know what will come of them, and it's uncertain what will happen after the phase out of DACA.
You can read more information in this DHS FAQ.
As of September 18, 2017, U.S. employers are required to use the latest version of the Form I-9. Download this free guide for a step-by-step look at how to properly complete, file, and retain your I-9s so you’ll be prepared in
the event your organization is audited.