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What to Do About DACA

 

While both employers and 800,000 affected workers await a Congressional solution to the Deferred Action on Childhood Arrivals program, legal experts say employers are concerned that there will be other changes to immigration policies and enforcement.

 

Thursday, November 2, 2017
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President Donald Trump announced in September that his administration was discontinuing the young immigrants' amnesty program called Deferred Action for Childhood Arrivals and that it would stop accepting renewal applications after Oct. 5.

A week later, Democratic legislators announced that they'd reached an agreement that would allow Congress to pass replacement legislation. However, as of this writing, no specific measures have been put forward yet, let alone enacted into law.

So, where does that leave employers who would be barred from letting some 800,000 "Dreamers" work when their DACA permits run out?

Legal and business watchers are concerned because if the program is not replaced in enough time, DACA employees will begin losing their jobs next year, since most of the recipients have not yet filed for extensions to their two-year employment authorization document.

The bottom line impact could be some $6.3 billion in turnover costs for employers, according to The Cato Institute's Center for Global Liberty and Prosperity.

As a result of all this, immigration employment attorneys around the country are advising their corporate clients to alert workers of the upcoming deadline and then re-verify affected employees as soon as they can, while navigating the various details in Immigration and Customs Enforcement policies and requirements.

"Employers are responding to the news of the government's enforcement measures seriously and they are anticipating future changes for [immigration] compliance in general," notes Sarah J. Hawk, partner in Ogletree Deakins' business immigration and compliance practice based in Raleigh, N.C., and Atlanta.

Randall Sidlosca, counsel with Cozen O'Connor's immigration practice, based in Miami, says that the rollback puts "more onus on the employer . . . to be more diligent with the re-verification process because in the past, if you had a DACA employee, you'd automatically assume they would have a new employment authorization document [EAD] card." That's no longer the case, he says.

The rollback, Sidlosca says, will affect some high-immigration states such as California, Texas, New York and Florida more than others. "Employers in these states will have to be very cognizant about [Employment Eligibility Verification Form] I-9 compliance."

Although DACA workers do fill the ranks of low-skilled jobs, many have grown up with a U.S. education and have acquired skills that have been valuable to large and multinational companies. For example, large technology employers such as Apple and Microsoft have called for swift replacement of the employment authorization program. "It's in everyone's best interest to address DACA sooner rather than later," says Sidlosca.

"I think that everyone was listening to us very closely this year, as opposed to the last few years where immigration was lower on the agenda," Hawk says. "You have HR directors and the higher-level executives saying, wait, this is going to affect a larger segment of our population than expected."

Scott Fanning, a Chicago-based immigration attorney with Fisher Phillips, says there are several "devil in the details" potential complications for affected workers and their employers.

For example, once EAD cards start expiring, the recipients can no longer be legally employed. That means employers could be hit with serious penalties for I-9 non-compliance and potentially knowingly hiring someone who is not authorized to work in the United States.

Second, if DACA employees have a gap between their expiration and renewal dates, they have to be offered unpaid leave or it would be considered discrimination, according to immigration case law established in 2007 by the 9th Circuit Court.

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Third, employers should be careful to NOT expand re-verification to permanent residents who have a green card because that would be illegal.

Finally, DACA employees have the option of presenting a variety of documents to prove their employment authorization and employers have to accept whatever is provided, instead of only accepting certain documents.

It's about "crossing all the 't's and dotting all those 'i's," Fanning says. "If [employers] don't have a system in place or haven't reviewed I-9s in a while, self-audits are always well advised. They aren't used against you [by ICE] but in California, you may have to notify [the state's] Department of Labor prior to the audit."

While many medium- to large-sized employers have software that notifies them of I-9 expirations, Hawk says the verification process puts a greater burden on smaller companies that don't have automated systems.

"This was a wake-up call for employers to update and review their I-9 policies and E-Verify policies," says Hawk.

Hawk says her clients have seen an uptick in immigration inspections and audits of I-9 records in the months leading up to the rollback, and says she doesn't see that enforcement trend going away. Employers are concerned that there will be other changes to immigration policies and enforcement, including to training programs.

"It's going to be very challenging," Hawk says, especially for "multinational companies that need to be able to be mobile with their workforce."

Sidlosca says he's optimistic that a solution will become available soon for the highly popular program that lets former child immigrants build a legal life in their new country.

"I think that many of the Dreamers on both sides of the aisle are hoping Congress will have addressed this issue before their employment authorization expires," he says.

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