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

The Deferred Action for Childhood Arrivals (DACA) program was never intended to last forever. President Obama ordered it as a stopgap pending Congressional action, so as to protect immigrants who entered the U.S. unlawfully as children, without having made that choice themselves. Since 2012, DACA-eligible immigrants have paid fees to the U.S. government for a work permit and protection from deportation, all of which were renewable in two-year increments.

Although the Trump administration tried in various ways to end the DACA program, the federal courts stopped it from terminating DACA altogether. Until and unless Congress passes a permanent fix, however, DACA is a program that could be canceled entirely.

Recipients could eventually lose their right to be in the U.S. and their work authorization. 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.

No Law Requires Telling an Employer When You Lose Work Authorization

First, you do not have to proactively tell your U.S. 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 U.S. 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.

U.S. Employers Can Check Non-Citizens' 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, and you showed your 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 will 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 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 the expiration date draws closer or if it has already expired.

What to Do If Your Employer Asks About 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, let your boss know that you are working on it.

Unfortunately, your employer can legally 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 might be able to file a complaint.

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

Some immigrants might qualify for a work permit in some other way. For example, if you have recently married a U.S. citizen and your last entry to the U.S. was using a visa or other permitted form of entry, you could qualify to adjust status to permanent resident and receive an EAD while U.S. Citizenship and Immigration Services (USCIS) considers your marriage-based 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 might be able to work out an agreement with your employer to keep your job. Try asking if your employer 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.

Getting Legal Help

Talk to an experienced attorney for a full analysis of your situation, any reasonable strategies that might help you apply for some form of lawful immigration status other than DACA, and preparation of the relevant paperwork.