WORKPLACE LAW – A Dream on Hold – Workplace Law Regarding DACA

Question: I’ve been reading about President Trump’s plan to rescind the Deferred Action for Childhood Arrivals (“DACA”) program. As a local employer, how will this impact my business?

Answer: The Trump Administration recently announced that the Department of Homeland Security (“DHS”) will be rescinding the DACA program. Many employers are wondering how this will affect DACA participants that are currently legally employed in the U.S., and the hiring of DACA participants in the future.
DACA was established in June 2012 to provide eligible undocumented immigrant youth who came to the U.S. before the age of sixteen with (1) the ability to request consideration of deferred deportation for two years, subject to renewal; and (2) eligibility to request an Employment Authorization Document (“EAD”).
Under DACA, applicants have to meet the following requirements:
• Be physically present in the U.S. and be under age 31 on June 15, 2012;
• Have lived continuously in the U.S. from June 15, 2007 until the present;
• Come to the U.S. before their 16th birthday;
• Currently be in school, or have graduated high school or obtained a GED certificate, or have been honorably discharged from the armed forces; and
• Have no felony convictions and not otherwise pose a threat to national security or public safety.
President Trump’s order gives Congress until March 5, 2018, to enact a law to address the status of roughly 800,000 program participants (known as “Dreamers”). If Congress fails to act, the Dreamers will lose their right to work legally in the U.S. when their current EADs expire and will lose their ability to defer deportation.

In the meantime, the DHS will take the following action:

• Pending DACA Initial Applications and Pending DACA Renewal Requests: DHS will consider, on an individual, case-by-case basis, properly filed and pending DACA initial requests and applications for EADs, and renewal requests from current participants, that have been accepted by DHS as of September 5, 2017.
• New DACA Initial Applications: No new applications for initial DACA status will be accepted after September 5, 2017.
• New DACA Renewal Requests: DHS will consider, on an individual, case-by-case basis, DACA renewal requests and applications for EADs from current Dreamers whose benefits expire between September 5, 2017 and March 5, 2018. To be considered, these applications for renewal must be accepted by DHS by October 5, 2017.
• Existing DACA Status: DHS will not terminate the grants of previously issued deferred action or revoke EADs for the remaining duration of their validity periods.

Under California law, employers are prohibited from discriminating against an employee because of his or her immigration status. Employers may face discrimination claims if they terminate the employment of, or refuse to hire, DACA recipients with valid EADS. Employers should track the expiration of EADs, but they should not re-verify work authorization documents for DACA recipients. Many employers want to assist DACA recipients and are providing a list of DACA resources and information to all employees, through a company website or other means, because employers are prohibited from singling out DACA recipients or asking about DACA status.

Employees should make sure they apply for renewal of DACA status and EADs before October 5, 2017 if their status and EADs expire between now and March 5, 2018. EADs expiring on March 6, 2018, or thereafter will not be eligible for renewal. Employers should be sure that they not discriminate against employees with unexpired EADs, but at the same time, meet their obligations to employ individuals authorized to work in the U.S.
The DHS Memorandum on the Rescission of DACA can be found at the following link: https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca