Steps Employers Can Take Regarding DACA Phase-out And Frequently Asked Questions

9/6/2017
CFGI

As employers prepare for the phase out of the DACA program, CFGI outlined four steps for employers to consider to prepare:

  1. Assess your current workforce. Determine who is a known DACA recipient and do workforce planning around how those positions will be filled if the employee loses work authorization.
  2. Be mindful of the antidiscrimination provisions of immigration law. Do not terminate employees merely in anticipation that they may lose their work authorization at a future date, and do not make inquiries of other individuals to determine if they are DACA recipients if they have not volunteered that information.
  3. Inform your workforce that there is a window through October 5, 2017 to apply for DACA extensions. This a very short window in which some employees may be eligible to apply for work authorization. Employers should consider organization-wide communications in this regard as one-on-one communications could result in violation of antidiscrimination laws.
  4. Communicate to managers and leadership and manage expectations. While there's a real chance Congress will act, there's still a real possibility that Congress will not act. Employers should not lose hope for a legislative solution, but they should be prepared for a world in which DACA is rescinded in its entirety on March 5, 2018.

Answers to Frequently Asked Questions:

At what point will DACA recipients lose work authorization?

Under the law, there is a clear process for employment verification, using Form I-9 and, for some employers, E-Verify, that employers follow now. Under this system, DACA recipients have employment authorization documents (EAD) with a set expiration date, and they will have no governmental authorization to work beyond that date unless their EAD is renewed or if they present another document that satisfies the I-9 and E-Verify requirements.

What is the likelihood Congress will act to preserve work authorization for DACA recipients?

While CFGI will advocate for a legislative solution and there is a real possibility one will come to fruition, employers must be aware of the very real possibility that the program will expire in its entirety in six months. Options will be very limited for DACA recipients should work authorizations expire. Congress has six months to deal with this challenge, and our goal is to help them find the right legislative solution before the March deadline hits.

What are the potential consequences of knowingly employing DACA recipients after their work authorization ends?

Under current law employers face an array of penalties for violations of employment verification laws, ranging from civil penalties that can range from a couple hundred to thousands of dollars, to criminal penalties and debarment from receiving government contracts. Penalties increase for knowingly employing undocumented individuals, failing to act in good faith and having a pattern or practice of prior violations. These penalties are a real possibility for employers that continue to employ DACA recipients whose work authorizations expires, particularly if they do so knowingly.

We recognize that this is a tough situation for employers, as they can also face penalties for discrimination in the hiring and employment verification process. While employers can do workforce planning to prepare to fill needs that may arise should work authorization expire for known DACA recipients, employers should not be directly asking individuals if they are DACA recipients – that could be actionable discrimination.

CFGI will advocate for a legislative solution and will provide more updates with regard to DACA as we receive more information.