What the DACA Rescission Means for Employers

The Trump administration announced on Tuesday that it would end the Deferred Action for Childhood Arrivals program, known by the acronym “DACA.” The administration has, in effect, delayed the termination of DACA to allow Congress to pass legislation providing legal status to DACA recipients. Employers should know the implications for their obligations to verify work authorization.

DACA, which provides work authorization and delays removal of certain foreign nationals without immigration status, was instituted in 2012 under then-President Barack Obama. Foreign nationals who were brought to the United States when they were under age 16 could apply for DACA with the United States Citizenship and Immigration Service (“UCSIS”). If the application was approved, the foreign national would receive an employment authorization document (“EAD”). The EAD did not authorize foreign nationals to be present in the United States, only to work here. Although a DACA recipient remained unlawfully present, the recipient’s removal was deferred for the length of time the EAD was valid.

The Trump administration’s decision to end DACA carries serious implications for employers.  First, because the Trump administration has not revoked valid EADs issued to DACA recipients, employers can continue to employ individuals with valid EADs. But employers should not terminate employees who obtained an EAD through DACA on the grounds that the DACA program has terminated.

Second, an employer’s obligation to re-verify the employment authorization of those with temporary work authorization, such as an EAD issued under DACA, remains the same. To comply with the law, employers should continue to ask for updated employment authorization before a DACA recipient’s EAD expires and complete Section 3 of the Form I-9.

Third, foreign nationals with EADs expiring between September 5, 2017 and March 5, 2018 can renew their EADs. Foreign nationals will not lose benefits prior to March 5, 2018 if they properly file a renewal request and associated application for employment authorization.

Fourth, USCIS will not reject DACA applications pending as of September 5, 2017. USCIS will decide such applications on a case-by-case basis but will reject new applications filed after September 5, 2017.

Employers should continue to monitor legislative developments that affect the work authorization of employees.