Deferred Action for Childhood Arrivals (DACA) was an immigration policy initiated by President Obama in 2012 for individuals who arrived in the United States as minors and either entered or remained in the country illegally. DACA allowed these individuals to register to receive a renewable two-year deferment on the deportation process and obtain a work permit. On September 5, 2017, President Trump announced the rescission of DACA, allowing for a six-month suspension of the rescission in which DACA recipients with work permits that were set to expire on or before March 5, 2018, could apply for a renewal. A White House memo stated that DACA recipients should use the remaining time on their work permits to arrange and prepare for their departures from the country.
The decision to end DACA has been met with significant criticism. In a statement, the U.S. Commission on Civil Rights, an independent federal body that advises the president and Congress on matters regarding civil rights, called the decision a "step backward." The end of DACA is also being challenged in federal court where 16 states and the District of Columbia have filed suit. Even if it is not ultimately successful, the suit could halt or delay the approaching expiration of DACA and any work permits issued pursuant to the same.
Not only are the more than 700,000 DACA participants—commonly referred to as “Dreamers”—faced with an uncertain future, but employers of Dreamers must also learn to navigate the approaching end of DACA. Employers have good reason to worry because they could face stiff penalties for knowingly employing unauthorized workers. Under the Immigration Reform and Control Act (IRCA), 8 U.S.C. § 1324a(e)(4)(A)(i), an employer can be fined between $250 and $2,000 per worker for knowingly hiring or continuing to employ individuals who lack a proper work permits. These civil penalties increase for employers with previous violations, under section 1324a(e)(4)(A)(ii) and (iii). The IRCA also carries the possibility of criminal penalties, including fines and imprisonment, if an employer "engages in a pattern or practice" of employing unauthorized workers under section 1324a(f)(1).
However, any employer contemplating what the end of DACA means for its work force would be wise not to act too hastily. Employers must remember that the IRCA prohibits discrimination on the basis of an individual's immigration or citizenship status, under 8 U.S.C. § 1324b(a)(1), and Title VII of the Civil Rights Act of 1964 protects against employers discriminating based on national origin under 42 U.S.C. § 2000e-2(a). While a Dreamer has a valid work permit, she or he is entitled to the same protections against workplace discrimination as any other employee. This means that employers cannot refuse to hire or choose to terminate an individual simply because she or he is a Dreamer and has a work permit that will expire sometime in the future.
The good news is that the work permits issued under DACA will not expire all at once and some will not even expire until 2020. The best course of action is for employers to determine which of their employees are DACA beneficiaries by reviewing the Forms I-9 and any copies of employment-authorization documents that were collected at hiring. Employers should not approach or question employees about their immigration status as this could leave an employer vulnerable to accusations of discrimination. If an employer determines that it has employees who might be Dreamers, the employer should consult with a reputable labor and employment or immigration attorney. Employers may also choose to offer DACA employees legal support or counseling, following the lead of large companies such as Apple and Microsoft. More than anything, employers should be certain to following the developing story, as there are hints that legislators may be able to save DACA, sparing employers the headache of figuring what to do with any DACA employees as the program comes to an end.
David Gevertz is with Baker Donelson in Atlanta, Georgia.
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