As of the today’s date, Congress and the Trump Administration have
been unable to strike a deal that would halt the termination of the Obama-era
program designed to protect young, undocumented immigrants often referred
to as “Dreamers”. Here’s want employers need to know:
What Happened? On September 5, 2017, the Trump Administration’s Attorney General
Jeff Sessions announced that the Department of Homeland Security (DHS)
will end the Deferred Action for Childhood Arrivals (DACA) program in
What is DACA? Former President Obama enacted the DACA in 2012 to protect certain young,
undocumented immigrants (“Dreamers”) from deportation and
allow them to work legally in the U.S. for a renewable two-year period.
To qualify for protection under DACA, “Dreamers” also needed
to meet specific requirements as to age, education, and criminal background.
Who are “Dreamers”? DACA beneficiaries are referred to as “Dreamers” and include
an estimated 800,000 young, undocumented immigrants. Dreamers were brought
to the U.S. as children, usually by their parents or other family member.
When does DACA End? It will end on
March 5, 2018, unless Congress is able to reach a long-term solution for DACA beneficiaries.
What does it mean for Employers? Organizations employing Dreamers will face legal and logistical difficulties.
According to a report by the Center for American Progress, if Congress
fails to take action, around 30,000 Dreamers could lose their jobs each
month for the next two years. This job loss could cost employers up to
$6.3 billion as a result of workforce turnover.
The Balancing Act: How to Avoid Discrimination Charges and Immigration
Employers need to comply with immigration law, but at the same time, they
must ensure that their compliance actions are nondiscriminatory. Here
are some quick do’s and don’ts:
Don’t ask employees for any information beyond what is required by the Form
I-9. Here are some other “don’ts” to remember when balancing
immigration compliance with avoiding discrimination charges:
Don’t ask employees if they are DACA beneficiaries or “Dreamers”.
It does not matter if you empathetic to their dilemma and genuinely want
to help them. Under the law, DACA recipients do not need to disclose their
immigration status details.
Don’t lay off employees early or rescind an offer of employment to individuals
authorized to work in the U.S. based solely on the fact that their work
permits will soon expire.
Do review I-9 records consistently and utilize a system that notifies you
when temporary work permits are close to expiring. Beware; penalties for
organizations that knowingly employ individuals with expired work permits
include fines of thousands of dollars for each unauthorized worker and
even criminal action. Unless Congress figures something out in the next
few months, employers will be forced to lay off DACA work permit holders
as their permits expire.
Do have a backup plan and prepare to strengthen recruitment efforts. Unless
Congress comes up with a solution that allows the Dreamers to legally
living and working in the U.S., organizations could lose multiple employees
on short notice. Minimize workforce disruption by planning ahead.
Do seek legal advice if you are unsure of your obligations following the
end of DACA. An attorney can help you formulate a strategy that takes
into account the specific facts of your employee’s situation and
your organization’s unique needs.