Do I Need to Tell My Employer That My DACA Work Permit Will Be Expiring Forever?

Although you don't have to tell your employer that your work permit will expire, here is important information that you should know about your employment authorization and your workplace rights as a DACA recipient.

The Trump administration recently announced that it will phase out Deferred Action for Childhood Arrivals (DACA) protections for immigrants who entered the U.S. as children. Since 2012, DACA-eligible immigrants paid fees to the U.S. government for a work permit and protection from deportation, all of which was renewable in two-year increments.

Unfortunately, until and unless Congress passes a permanent fix, many DACA recipients will lose work authorization as early as March 2018, while others may be lucky enough to be able to work legally in the U.S. for more than two years.

If you received your work permit through the DACA program, it's understandable to have questions about what this means for your employment if you are already employed. This article discusses whether and how to approach the issue with your employer.

There Is No Legal Requirement to Tell Your Employer That You Lost Work Authorization

First, you do not have to proactively tell your employer that your Employment Authorization Document (EAD) will expire and that you will not be able to renew it when it does.

Also, you do not have to tell your employer that you received your work authorization through the DACA program. However, your employer could find this out by checking your EAD. The eligibility category "(c)(33)" refers to a DACA work permit.

Your Employer Can Check Your Work Authorization Upon Hire and When It's Due to Expire

Most likely, when you were hired, you had to fill out a Form I-9, along with which you gave identification documents and a copy of your work permit with its expiration date. Your employer will have that information on file. It's up to your employer to make sure that its employees are legally authorized to work in the United States. Many of them use a program called E-Verify for this purpose.

If your work permit expires and you continue to work, your employer will still be required to pay you wages and it will still use your Social Security Number to report wages and to pay any local, state, or federal taxes. Some employers are fine with this arrangement and are lax about following federal laws that require checking the documentation of its workers.

If your employer has a human resources (HR) department, it's more likely that it will approach you with questions about your work authorization as its expiration date draws closer or if it has already expired.

What to Do If Your Employer Asks About Your Work Authorization

If your employer asks you questions about your EAD expiration date, you should be honest. If there are other options to get a new work permit in the future, you should let your boss know that you are working on it.

Unfortunately, your employer does have the right to terminate your employment once your work EAD expires. However, it does not have the right to discriminate against you in advance of your work permit expiration date. If your employer is threatening your employment simply because you are not permanently authorized to work in the U.S., you may be able to file a complaint.

For more information about your rights as a temporary worker in the U.S., see the National Immigration Law Center's (NILC) practice advisory "DACA and Workplace Rights."

What If Your Work Permit Expires Before You Receive a New One?

If you renewed your DACA work authorization before October 5, 2017, you can eventually expect to receive a two-year extension of your EAD if your DACA application is approved. Some immigrants might qualify for a work permit in some other way. For example, if you have recently married a U.S. citizen and entered the U.S. using a visa, you could qualify to adjust status to permanent resident and receive an EAD while U.S. Citizenship and Immigration Services (USCIS) considers your green card application.

Again, if your work permit expires before you receive a new one, you don't need to tell your employer about this. But if your employer asks, you should show any information to demonstrate that you applied for one, such as your DACA receipt notice and information about processing delays at USCIS. If your application is outside the processing time frame on the USCIS website, you should put in a service request.

You may be able to work out an agreement with your employer to keep your job. Try to ask your employer if it would be willing to place you on a leave of absence or suspend your employment rather than firing you. That way, you can return to work immediately once you receive your new work permit.

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