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What Employers And Schools Need To Know About The Rescission Of DACA

Earlier this month, the Trump Administration announced that it was unwinding the Deferred Action for Childhood Arrivals program, known as “DACA.” DACA provided a temporary reprieve from deportation and the ability to work for over 800,000 young people (known as “Dreamers”) who were brought to the U.S. during childhood and have resided here without legal authorization.

Background

Created through a 2012 Executive Order by the Obama Administration, DACA served as a form of prosecutorial discretion, under which the government chose to defer potential deportation proceedings against qualifying undocumented immigrants. To qualify for DACA, an applicant was required to (a) have been under the age of 31 at the time the program was announced, (b) have been brought to the U.S. prior to the age of 16, (c) meet certain physical presence requirements, and (d) be a current student, high school graduate, GED holder, or honorably discharged veteran of the U.S. Coast Guard or Armed Forces. In addition, applicants were required to pay filing fees, meet criminal background requirements, and not pose a threat to national security.

Successful DACA applicants were given a two-year deferral from removal (deportation) proceedings and the ability to apply for employment authorization, subject to renewal.

Current Status Of DACA

Attorney General Jeff Sessions announced that the Trump Administration will end the DACA program by phasing it out in an “efficient and orderly fashion,” finding that “it is likely” that the courts would find the program to be unconstitutional. Current DACA recipients will remain protected for their approved period of deferred action and be permitted to retain their employment authorization documents until they expire, unless they are terminated or revoked.

In addition, U.S. Citizenship and Immigration Services (“USCIS”) will continue to adjudicate initial applications for DACA that had been received as of September 5, 2017. Those DACA recipients whose benefits will expire between September 5, 2017 and March 5, 2018 can renew their applications but must do so by October 5, 2017. After October 5, 2017, USCIS will no longer accept renewal applications.

It is important to note that DACA recipients who have current employment authorization will continue to be eligible to work until their employment authorization documents expire, even if the expiration date is beyond March 5, 2018. However, unless Congress acts in the interim or President Trump changes his mind, once a recipient’s employment authorization documents expire, they will not be able to be renewed, and the recipient will lose employment authorization.

What Should Employers Do?

Employers who have or may have employees with employment authorization through DACA should tread carefully to ensure they are complying with their Form I-9 employment authorization verification requirements, while not acting in a discriminatory manner.

First, employers should not take any immediate action based on the wind-up of the DACA program, as current employment authorization documents are not being rescinded. However, it is important that employers have a system in place to ensure that employment authorization is re-verified in Section 3 of Form I-9, prior to the expiration of employees’ employment authorization documents. In doing so, it is important that employers not treat DACA recipients differently than other workers, as this would be in violation of the anti-discrimination provisions of the Immigration and Nationality Act. Rather, all workers whose employment authorization documents are set to expire should be re-verified as necessary.

Employers should also plan ahead for the possibility that current workers will be unable to renew their employment authorization as DACA is phased out. However, employers should not terminate or refuse to hire DACA recipients based on their immigration status.

What Should Schools Do?

Because DACA affects younger people, many independent schools may also be concerned about the ability of their students to continue to attend school. Unlike employment, there is no federal requirement that schools check students’ immigration status. Therefore, students affected by the DACA phase-out can still attend school. However, students who work on campus or otherwise participate in a work study program may no longer be eligible to work lawfully in the U.S.

In addition, many schools have declared themselves “sanctuary campuses” and aim to protect all students, regardless of immigration status. Schools should give consideration to issues raised by such policies. Although USCIS has stated that it will not “proactively” share information from DACA applications with Immigration and Customs Enforcement (“ICE”), this does not mean that ICE will not ask for information if ICE believes a DACA recipient meets criteria for being placed into deportation proceedings. Therefore, it is important that schools adopt clear policies regarding how to handle ICE inquiries.

For example, schools should designate a specific administrator to handle ICE inquiries. This person should have a clear understanding of the school’s rights and obligations in connection with ICE inquiries, such as when a warrant must first be obtained. In addition, schools may wish to evaluate which areas of their campus should be treated as “public,” as this can limit where ICE agents can enter without a warrant. Finally, schools - particularly those that have adopted “sanctuary campus” policies – should consider communicating to their students when they can protect students’ privacy in connection with ICE inquiries, and when they must respond to ICE.

What’s Next?

It is possible that Congress will enact legislation that will provide relief to the Dreamers in the absence of DACA. If not, President Trump has stated that he may “revisit” this decision prior to March 5, 2018.

However, as nothing is certain, it is important that employers be vigilant when completing Form I-9s both for new employees and when re-verifying employment authorization. Further, schools (as well as other employers) should have policies in place regarding ICE inquiries to ensure that they respond in a consistent, non-discriminatory manner.

Please feel free to contact us if you have any questions about the termination of the DACA program and its potential effects on your business or school.