The Department of Homeland Security (DHS) announced on September 5th that they have initiated the "orderly phase out" of the program known as Deferred Action for Childhood Arrivals (DACA). Employers who are concerned about the ending of this program need to be cautious of taking the following actions:
- Ask Employees About their DACA Status
- Attempt to identify DACA recipients based on I-9s
- Make staffing decisions based on a potential loss of work authorization.
These actions are discriminatory in nature and will increase your chances of facing a discrimination claim.
Instead, don't take any immediate action (Yes, you read that right)
We don't recommend that employers take any immediate action related to the DHS announcement.
According to information released by DHS, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS.
Complete I-9 reverification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.Ask employees whether they are DACA participants
There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point we do not know what will come of them, and it's uncertain what will happen after the phase out of DACA. You can read more information in this DHS FAQ.
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