by Mayer Brown LLP
According to multiple media reports, US President Donald Trump is expected to make an announcement on Friday, September 1, 2017, to end the Deferred Action for Childhood Arrivals (DACA) program, in advance of the Labor Day holiday weekend. The White House has not affirmed the reports, and the press secretary advised in the August 31 daily press briefing that the decision is “under review.”
Why an announcement is expected
Plaintiffs in the 2014 challenge to expansion of the DACA program (Texas v. United States), including Texas and other states, have threatened to amend their complaint to challenge the legality of the DACA program if the White House does not take steps to halt DACA by September 5, 2017.
Genesis of the court action challenging DACA
Under DACA, implemented in 2012 by order of then-Department of Homeland Security (DHS) Secretary Janet Napolitano, nearly 800,000 undocumented immigrants who entered the United States as children benefit from deferral from deportation as well as eligibility for temporary work permits and parole travel documents. In November 2014, then-DHS Secretary Jeh Johnson issued two memoranda directing expansion of the DACA program to cover significantly more beneficiaries, and the DAPA program, which defers removal for undocumented immigrants who are the parents of US citizens or lawful permanent residents, was launched. Two weeks later, Texas and nine other states brought an action in the Southern District of Texas to challenge the proposed DACA expansion and the new DAPA program. On February 16, 2015, US District Court Judge Andrew S. Hanen issued a preliminary injunction against implementation of the expanded DACA and the new DAPA programs. The injunction was upheld by the Fifth Circuit Court of Appeals, and that decision was allowed to stand by a split 4-4 vote in the US Supreme Court.
Impact if the president ends or suspends DACA
If the president ends or suspends DACA, current DACA beneficiaries will lose their work authorization and be subject to deportation. A question that remains is whether the administration will allow DACA beneficiaries to retain their benefits through the expiration date of their approvals or end their right to work immediately. If the president moves to curtail the status immediately, any DACA beneficiaries who are abroad pursuant to parole authorization may not be allowed back into the United States.
Employers, who are concerned about the impact on their work force, are evaluating how to determine which employees may be impacted. But taking premature action to validate who is a DACA holder can expose the employer to significant risk, while the risks of not providing any concrete assistance to DACA beneficiaries before the actions of the government—including court and Hill action that may follow a presidential announcement—are unknown To help employers navigate the issues in this interim period, we provide the following guidelines.
How employers should respond
- Do not refuse to hire an applicant solely because they present a valid employment authorization document (EAD) that will expire in the future, unless and until the administration mandates otherwise. DACA recipients are issued EADs with two-year validity. If the administration decides to allow those documents to remain valid until they expire, employers must be careful not to discriminate against DACA beneficiaries simply because they present an EAD that will expire in the future. In this regard, the Immigrant and Employee Rights Section (IER) of the Civil Rights Division at the Department of Justice advises employers that they “cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future. The existence of a future expiration date does not preclude continuous employment authorization for a worker and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA [Immigration and Nationality Act].”
- Do not review I-9 records to validate which employees are DACA beneficiaries. Unlike H-1B, L-1 or other skilled worker visa holders, DACA beneficiaries are not sponsored by employers. Employers with DACA workers in their population accordingly have no inherent means to detect which workers are at risk of deportation or work authorization termination if the administration suspends or ends the DACA program. The only vehicle likely to yield this information is their I-9 records database. But employers can run afoul of anti-discrimination provisions of the immigration laws by attempting to validate who is a DACA holder.The INA places limitations on the use of I-9 information. In general, an I-9 and “any information contained in or appended ” to the I-9 “may not be used for purposes other than for enforcement of the [INA] and sections 1001, 1028, 1546, and 1621 of title 18 ” of US Code. INA §274A(b)(5); 8 C.F.R. §274a.2(b)(4). Indeed, the IER (formerly called the “Office of Special Counsel for Unfair Immigration Employment Practices”) has opined that providing I-9s to third-party vendors to process payroll, for example, may violate this provision. (See TA Letter, Nanda, Deputy Special Counsel, Unfair Immigration Employment Practices (May 30, 2013).) Using information from the I-9 for DACA verification may also be viewed as violating the E-Verify Memorandum of Understanding, which provides in Art II, C.13 that the information may only be used to confirm employment and may not be disseminated to any person “other than employees of the Employer who are authorized” to conduct E-Verify. Id. Accordingly, we recommend that the I-9 not be used for purposes of identifying those employees who are working pursuant to a DACA-based EAD, other than to comply with the I-9 and E-Verify requirements. Such use could be considered an “Unfair Immigration Employment Practice ” under INA §274B.
- Do not invite DACA holders to “self-identify”—yet.Similarly troublesome is inviting employees to self-identify as DACA workers. If the employer invites this feedback, the employer will then have knowledge—or at minimum, constructive knowledge—of the termination of work authorization if the administration takes the expected action to curtail DACA benefits. The employer will be in a position of having to decide whether to continue employment—which may create risk in any future government audit—or terminate the employee—which may create risk if legal action is initiated to protect DACA workers. In addition, if the employer appears to have invited only individuals who appear to be from Latin American countries, discrimination liability could arise. Requests for self-identification also are unlikely to yield either precise or complete information. Those who do self-identify may be unwilling to advise on the exact end date of their work permits. And it will be unknown how many DACA beneficiaries have elected to remain unidentified.
- Avoid creating vehicles, at least for now, for helping DACA workers that may inadvertently lead them to self-identify.If employers attempt to host webinars, town halls or other events to counsel DACA beneficiaries at this early date, they may be faced with the same quandary in making decisions about continued employment. At a minimum, some level of constructive knowledge of expiration of DACA authorization could be attributed to them.
- In determining the length of approved work authorization, rely exclusively on your I-9 records, until and unless the government mandates a different approach.Properly completed I-9 forms will include employee-provided expiration dates of their temporary work authorization, if they are subject to such expiration. Employers should rely on the I-9 expiration date to address the length of work authorization rather than on any public announcement about DACA suspension or termination. The obligation the employer has is only to ensure that it engages in timely reverification of I-9s for workers with time-limited work authorization.
- Make sure that your I-9 recordkeeping is up–to-date, and that you are properly reviewing your Section 3 reverification obligations.As with any other time-limited employment authorization, employers have an obligation under the INA and corresponding regulations to reverify a DACA beneficiary’s work authorization on or before the expiration date of the employment authorization document.Properly completed I-9 records will protect employers from employer sanctions violations but only if the employer is closely reviewing the reverification obligations. Employers who have not recently audited their files should do so and institute regularly recurring review of I-9 propriety.
On the horizon
Termination of DACA will likely put the issue of protecting individuals brought here as children back in the hands of Congress, where there appears to be some bipartisan support for humanitarian legislation in the form of the BRIDGE (Bar Removal of Individuals who Dream and Grow our Economy) Act. The BRIDGE bill was introduced in January 2017 by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL), along with five other senators and Representative Mike Coffman (R-CO) and seven other House members. The BRIDGE Act would give “provisional protected presence” and work authorization to individuals under the same criteria that was applied for DACA beneficiaries. Unlike the Dream Act, which failed to pass in 2011, the BRIDGE Act would not provide a pathway to US citizenship. Rather it would allow people eligible for DACA to receive work authorization and provisional protected presence for up to a three-year period.
In addition, once the DACA announcement is made and potential court or Hill action in response is identified, employers may wish to consider direct outreach to DACA holders. They may, for example, wish to assess if any of their DACA beneficiaries qualify for other types of visas to remain in their employ or, for those employers who have international operations, whether consideration of placements abroad for DACA professionals makes sense. Immigrants’ rights groups also are likely to provide direct assistance and guidelines, as the situation becomes more concrete.
(Editor’s Note:) This week, President Donald Trump took action and formally ended the Deferred Action for Childhood Arrivals (DACA) policy that was implemented by the previous Administration. The DACA program will expire in six months allowing time for Congress to take legislative action to resolve the issue.