The state of the Deferred Action for Childhood Arrivals (”DACA”) program has been in flux since President Trump moved to end it in September of 2017. In response, several lawsuits have been filed to challenge President Trump’s action. Though the ultimate fate of the DACA program remains uncertain, courts have ordered that the program continue until the current litigation is resolved.
Consequently, your employer may be at a loss as to the current status of the program, and may wonder whether your employment authorization will expire immediately, or earlier than the date stated on your employment authorization document card (”EAD” or work permit).
Be aware that you have no obligation to inform your employer that your work authorization is based on DACA. It is normally advisable to keep information regarding your immigration status to yourself, whether you are a DACA recipient or have some other basis upon which to work in the United States.
Your employer should not ask you directly whether your work authorization is based on DACA. If your employer does ask, you should respond honestly. Be aware that if your employer uses this information as a reason to deny you a promotion or to terminate you, it may be acting in violation of the law.
It could also be that your employer is already aware that you have DACA, either because you previously volunteered this information to your employer, or because it learned about your status by checking the code on the EAD card that you presented when you were hired.
If your employer asks you about your DACA work authorization, you can refer the employer to the United States Citizenship and Immigration Service (”USCIS”) website for more information on the status of the program.
Your work authorization remains valid until the expiration date of your EAD card—which is also the date that your DACA status expires.
Furthermore, if you are eligible and apply for renewal of your DACA status, and it is approved, your employment authorization will also be extended. Unfortunately, USCIS does not grant automatic work authorization extensions for DACA-based EAD applicants, so if it gets backed up, you may lose your authorization to work before your renewal comes through.
An employer can ask to look at your identity and work authorization document(s) again only in limited circumstances. When you were initially hired, your employer should have verified your work authorization and identity by requesting documents from you. Acceptable documents are listed on the I-9 form.
Your EAD card serves as both proof of your identity and proof of your work authorization. Any time your employer asks to see your identity and/or work authorization documents after you have initially presented them, the employer is engaging in “reverification.”
An employer has an obligation to employ only workers who have valid work authorization in the United States. Therefore, an employer can ask you to reverify your work authorization on the date its records show your authorization expires, by asking you to again show acceptable documents that demonstrate you continue to be authorized to work in the United States (such as a new EAD card).
If you know your work authorization is expiring, you do not have to show evidence of continuing work authorization until your employer asks you to do so.
However, if an employer singles you out for reverification and asks to again see your documents without having a valid reason (such as the expiration of the document or you because you have legally changed your name), the employer may be engaging in illegal discrimination based on your immigration status or national origin. Likewise, an employer cannot discriminate against you by firing you for the sole reason that you are a DACA recipient and your work authorization may terminate sometime in the future.
If you believe you are being singled out or treated differently because of your DACA status, you can contact the U.S. Department of Justice Worker’s Immigrant and Employee Rights hotline at 1-800-255-7688 or visit its website.