The Trump Administration announced (click here and here) this week that it is phasing out the Deferred Action for Childhood Arrivals (DACA) program.   DACA is a program that allows certain individuals who came to the United States as children, who have continuously resided in the United States and are in school, graduated from high school or obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the military, to apply for benefits.  One important benefit is work authorization.   

What does DACA rescission mean for employers and the employment eligibility verification form (the “Form I-9”)?

DACA is a program implemented in 2012 under the Obama Administration.  It has provided relief from deportation to approximately 700,000 – 800,000 individuals who would otherwise be in the country unlawfully. Under DACA, beneficiaries removal (aka deportation from the United States) is deferred during the duration of the program.  Once the program ends, beneficiaries revert back to their original status and may be  subject to removal from the United States for being unlawfully present in the country.  The DACA program provides recipients renewable two-year term benefits, including an employment authorization document (EAD).  According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire.  DACA-issued EADs are due to expire this year, in 2018 and 2019.  On a case by case basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries benefits will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request is filed prior to October 5, 2017.   For more on renewing DACA benefits click here.

In many cases employers will likely not be aware that a particular employee provided an EAD pursuant to DACA as proof of work authorization.  For purposes of completing the Form I-9, a DACA beneficiary would have provided an unexpired EAD for a two year period.  This is a valid List A document for purposes of completing section 2 of the Form I-9.   Given that these EADs will begin expiring it is an important reminder for employers to have a system in place to monitor expiring temporary work authorization documents associated with Form I-9 completion.  Organizations policies and procedures must include a notification system whereby both the organization and the employee are aware and proactively addressing the fact that an individual’s EAD is expiring.  On or before the expiration date listed on the EAD, employers must re-verify the individual’s work authorization.  This re-verification is generally done in section 3 of the Form I-9.   Given that the DACA program is being phased out, current beneficiaries may not have a valid EAD once their current work authorization expires and may therefore not be eligible for continuing employment.

It is important to note that up until an employee’s current EAD expires, DACA beneficiaries are lawfully able to be in the United States and work.  The program is being phased out and not ended effective immediately.  However, once an employee’s temporary EAD expires—regardless of whether they are a DACA beneficiary or not—their continuing work authorization must be verified.  In some cases an individual employee may not be able to demonstrate continuing work authorization either in the form of a List A document (e.g., renewed EAD) or List B and List C documents (e.g., Driver’s License and Social Security Card).  When an employee cannot demonstrate continuing work authorization for purposes of the Form I-9, they must be terminated.  There is no grace period once someone’s temporary work authorization expires allowing them to continue their employment in the United States.  In fact, employers who continue to employ someone knowing they are not authorized to be employed in the United States may face civil and criminal penalties. Civil penalties for knowingly employing unauthorized aliens range from $539 – $4,313 per violation.

To be clear, current DACA beneficiaries holding a valid, unexpired EAD are authorized to work for any employer in the United States for the duration of time listed on their EAD.