As an Employer, Do I Need to Fire DACA Holders Following Trump's Announcement?

Learn about compliance with legal requirements as a result of the DACA announcement and the potential issues of discrimination that could arise.

On September 5, 2017, the Trump administration announced that it would end the Deferred Action for Childhood Arrivals (DACA) program within approximately six months. As an employer, you may be concerned about issues like the well being of your employees who have DACA status, maintaining compliance with legal requirements, and avoiding liability for improperly firing employees.

How Do I Know Whether Any of My Employees Have DACA Status?

Foreign nationals can receive work authorization from U.S. Citizenship and Immigration Services (USCIS) through many different types of immigration status. Other than proving their right to work in the U.S.—which, in the case of DACA recipients, they'd do by presenting an employment authorization document (also called an EAD or work permit)—employees are not obligated to tell an employer their immigration status.

In fact, asking your employees what their immigration status is could expose you to liability for employment discrimination based on immigration status. (See the USCIS webpage on Preventing Discrimination.)

If an Employee Has DACA Status, Do I Need to Fire That Person Immediately?

If you have somehow found out that certain of your employees have DACA status, there is absolutely no reason to fire them, whether immediately or before the expiration of their work permits. The very opposite is true: To treat DACA recipients differently from other employees, or to fire them solely due to their unexpired DACA status, would expose you to liability for discrimination based on immigration status.

The main issue here is whether your DACA employees continue to have a valid EAD. DACA-based employment authorizations that were still valid on the date of the Trump administration announcement (September 5, 2017) did not expire immediately on that day. Depending on the individual employee (and whether he or she is allowed to renew under the terms of the DACA phase-out), the EAD may still be valid for months or years.

As specifically set forth in a memorandum issued by the Department of Homeland Security (DHS), DACA recipients' employment authorization cards will remain active for the rest of their validity periods. The validity period is shown on the face of the EAD.

As for renewals, DACA recipients whose status expires between the September 5 announcement date and March 5, 2018 are eligible to apply for a final two-year renewal of their status. So it may be possible for an employee to have valid employment authorization through the DACA program as late as March 2020.

Do I Need to Fire DACA Recipients When Their Employment Authorizations Expire?

You might need to terminate DACA recipients' employment when their employment authorizations expire, and you might not. As an employer, you are obligated to verify your employees' eligibility to work in the United States at the time they are hired, by having them complete Form I-9, Employment Eligibility Verification and produce various supporting documents for your review.

If the document your employee provided as evidence of employment authorization has an expiration date, you are obligated to reverify it on that date. You may not require DACA recipients to reverify earlier than the expiration date of their employment authorization.

If any employees are not able to provide evidence of continuing employment authorization by the expiration date itself, then you must, by law, terminate their employment.

However, having to fire your DACA-holding employees is not inevitable. Some DACA recipients may be eligible for other types of immigration status, and use the coming months or years of valid DACA status to explore or pursue these.

If DACA recipients successfully apply for a different type of immigration status that allows employment authorization, then they will be able to provide you with evidence of this at the time their DACA status expires. During that time, Congress could also pass legislation to reinstate a similar program or offer new benefits to DACA holders.

Remember that, as long as employees provide any of the verification documents according to the instructions on the I-9 Lists of Acceptable Documents, you have complied with your obligation to verify work authorization. Just because your employees previously provided EAD cards does not mean that they must show you a new one. They can provide any of the acceptable documents on the I-9 list. Requesting a specific type of document could be viewed as a form of discrimination.

If you are concerned that your compliance efforts could expose you to a discrimination claim, you may want to consult an experienced employment attorney to determine the best course of action.

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