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Dealing with the DACA Employee

There are nearly 800,000 immigrants who have benefited by the Deferred Action for Childhood Arrivals (DACA) program that was implemented by the Obama administration in 2012. Under DACA, unauthorized immigrants who came to the U.S. as children were given protection from deportation and the right to obtain work permits.

On September 5, Attorney General Sessions announced that DACA would be phased out within the next six months, thus fulfilling one of the promises that President Trump made during the election campaign.

Many employers who have hired DACA recipients may actually be unaware that they have done so, since DACA employees usually present the same Employment Authorization Document (EAD) that many other immigrants provide to their employers when they are first hired. Employers rarely focus on the category code (“C33” is the code for DACA recipients) on the EAD that identifies the basis for the work permit. In any event, it is not the category code that matters, but the expiration date. So long as the employee’s EAD has not expired, the employer may continue to employ the employee. That will be true even six months from now. However, employers need to make sure that they are reverifying the work status of any employee (DACA or otherwise) who is working with an EAD with an expiration date. (Employers do not need to be concerned about expiration dates on a Permanent Resident Card so long as the card has not expired at the time of hire).

A more difficult question is what should employers do for DACA employees who express concern about their future. How can an employer help a valuable employee who might no longer be able to work or — even worse — risks deportation? One thing that employers can do is to urge employees whose status is scheduled to expire within the next six months to file a renewal application before October 5, 2017; the Department of Homeland Security has stated that it will consider renewal applications from those DACA recipients by that date. That could extend the employee’s work permit.

Beyond that, employers should be candid with their DACA employees and let them know that they will not be able to continue to employ them once their work permit expires unless Congress enacts some statutory protection for the “Dreamers” in the interim or there is a successful legal challenge to the Trump administration’s rollback of DACA. At this moment, I am not optimistic that either of these will happen.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.