The Trump Administration announced this week that the Deferred Action for Childhood Arrivals (DACA) program has been rescinded. DACA is a program implemented in 2012 under the Obama Administration that allowed certain individuals who came to the United States as children, had continuously resided in the United States, in school, graduated from high school, or obtained a General Education Development (GED) certificate, or was an honorably discharged veteran of the military, to apply for benefits. One important benefit is work authorization. California and Texas have the highest numbers of DACA beneficiaries in the country, followed by New York, Illinois, and Florida. On September 5th Attorney General Jeff Sessions announced that DACA is rescinded and that the Department of Homeland Security (DHS) will begin phasing out the program.
What does this mean for employers and the employment eligibility verification form (the “Form I-9”)?
DACA has provided relief from deportation to approximately 700,000 – 800,000 individuals who would have otherwise been in the country unlawfully. Under DACA, beneficiaries’ removal (aka deportation from the United States) is deferred during the duration of the program. Once the program ends, beneficiaries revert back to their original status and may be subject to removal from the United States for being unlawfully present in the country.
The DACA program provided recipients renewable two-year term benefits, including an employment authorization document (EAD). According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire. DACA-issued EADs are due to expire this year, in 2018 and 2019. On a limited basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries’ benefits will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request is filed prior to October 5, 2017.
In many cases employers may not be aware that a particular employee provided an EAD pursuant to DACA as proof of work authorization. For purposes of completing the Form I-9, a DACA beneficiary would have provided an unexpired EAD for a two year period. This is a valid List A document for purposes of completing section 2 of the Form I-9. Given that these EADs will begin expiring it is an important reminder for employers to have a system in place to monitor expiring temporary work authorization documents associated with Form I-9 completion.
Organizations’ policies and procedures should include a notification system whereby both the organization and the employee are aware and proactively addressing the fact that an individual’s work authorization document is expiring. On or before the expiration date listed on the EAD, employers must re-verify the individual’s work authorization. This re-verification is generally done in section 3 of the Form I-9. Given that the DACA program is being phased out, current beneficiaries may not have a valid EAD once their current work authorization expires and may therefore not be eligible for continuing employment.
It is important to note that up until an employee’s current EAD expires, DACA beneficiaries are lawfully able to be in the United States and work. The program is being phased out and not ended effective immediately. However, once an employee’s temporary EAD expires—regardless of whether they are a DACA beneficiary or not—their continuing work authorization must be verified. It is this reverification that is critical for employers to keep track of in order to remain compliant. There is no grace period once someone’s temporary work authorization expires. Comprehensive procedures for anticipating and tracking expiring temporary work authorization documents presented by employees during Form I-9 are the key to remaining compliant.
Additional resources provided by DHS may be found at these links:
- Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA)
- DHS Renew Your DACA
- DHS Rescission of Deferred Action for Childhood Arrivals (DACA)
- DHS Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA)
- Fact Sheet: Rescission of Deferred Action for Childhood Arrivals (DACA)
Employers with I-9 Management from Equifax enjoy built-in compliance alerts, including configurable reverification notifications that help with monitoring EAD expirations. The solution solves for the complexities of constantly changing guidance, streamlining the process and helping reduce risk for employers nationwide.