Five Things Business Owners Should Know About DACA

The fate of DACA – Deferred Action for Childhood Arrivals – will be determined by Congress, but since the Trump Administration rescinded the program in September, many business owners are concerned about their employees who have been working legally under DACA. Will employers be able to keep these employees, or will they be lost? What consequences will they face? If you’re an employer or a “Dreamer,” keep reading, and you’ll learn some answers.

The end of the DACA program, at least for now, will impact more than 700,000 Dreamers – the undocumented immigrants who were minors when they were brought to the U.S. by their parents – who have been protected from deportation by the program. Beginning with the announcement of the DACA program’s cancellation on September 5th, Congress has six months to renew the program or to implement an alternative.

If no Congressional action is forthcoming, the Dreamers who have been protected by DACA may lose their ability to live, attend school, and hold a job in the United States. Thus, the concerns of employers are real and understandable according to Sara Itucas, who’s a client solution specialist with TriNet, a California-based human resources agency.

WILL U.S. EMPLOYERS BE ABLE TO KEEP THEIR DACA EMPLOYEES?

TriNet serves approximately 14,000 companies with staffing and payroll services. Many of those companies have hired employees who were protected by DACA, and several of the businesses are actually owned by Dreamers. Most employers she speaks with “want to find out how to keep them,” Ms. Itucas told CNN.

“From an employer’s standpoint,” she said, “they are qualified workers and valuable members of the team.” Ms. Itucas said that since September 5th, employers have been asking TriNet five key questions about the DACA program and the Dreamers. What is it that employers want – and need – to know?

Listed below are the five questions and the best current answers – so keep reading if you are an employer or a Dreamer – but until Congress takes action, some of the answers must be tentative rather than final. If you are an employer who hired workers under DACA – or a Dreamer who’s worked or attended school in the U.S. under DACA – consult an experienced Ohio immigration attorney for the sound and specific legal advice that applies to your own situation.

1. DO DACA EMPLOYEES NO LONGER HAVE WORK AUTHORIZATION?

If Congress takes no action, the DACA program itself is set to end on March 5, 2018, but a Dreamer’s work authorization will remain in effect until its expiration date. If the DACA program is not renewed or replaced, when a Dreamer’s work authorization expires, he or she will not be legally allowed to seek or hold employment in the U.S.

If you are a Dreamer and you are currently employed in the United States under DACA, you can find the date when your work permit will expire by checking your I-795 Approval Notice and by looking at the bottom of your Employment Authorization Document.

2. IF AN EMPLOYEE HAS NOT APPLIED FOR DACA PROTECTION OR A WORK PERMIT, IS IT TOO LATE?

It’s now too late for anyone to take advantage of the current DACA Program. The final applications were accepted by the Department of Homeland Security in September, when the tentative end of the DACA program was announced.

3. IF AN EMPLOYEE’S DACA ELIGIBILITY EXPIRES, IS RENEWAL STILL ALLOWED?

No. While the DACA program was operative, Dreamers had to requalify for DACA status every two years, but with the announcement of the program’s cancellation, the last day that DACA work permits could be renewed was October 5th.

4. CAN MY COMPANY SAFELY SEND A DACA EMPLOYEE OUTSIDE OF THE U.S.?

Sara Itucas at TriNet says the answer to this one is tricky. The right to travel internationally was allowed under the DACA program, but to assure reentry into the United States, Dreamers were required to obtain special permission to travel called “advance parole.” Advance parole is simply a permit issued – to allow reentry into the U.S. after travel abroad – to a non-citizen who does not have a valid immigrant visa.

At TriNet, “Generally, we are cautioning against travel,” Ms. Itucas tells CNN. Since September 5th, the United States is no longer approving advance parole for DACA Dreamers, and applications that were still pending on September 5th are no longer being processed. The Department of Homeland Security will refund any related fees that have already been paid.

While Dreamers with an advance parole document should still have no problem departing the United States and reentering, advance parole gives U.S. Customs and Border Protection the discretion to allow or block reentry of non-citizens who hold an advance parole document. Sara Itucas warns that if your employee has not already been granted advance parole, he or she should probably not travel abroad at this time.

5. WHAT CAN EMPLOYERS DO TO HELP THEIR DACA EMPLOYEES?

Employers can help their DACA employees by consulting an experienced immigration lawyer. An immigration attorney can probably identify some helpful visa options for a DACA employee and also help with the paperwork necessary to obtain an appropriate visa. An immigration lawyer can also identify particular immigration difficulties that an individual employee may need to have resolved.

Thus, those are the answers to the five questions that, according to TriNet, are being asked by so many employers about DACA. The Dreamers themselves, of course, are asking their own questions, but their most important question clearly is this: Can my employer in the United States fire me?

Generally speaking, without a union contract or some other work contract, employment in all fifty U.S. states is “at will,” meaning that an employer may terminate an employee at any time, provided that the employer is not illegally retaliating or discriminating against the employee. Even with valid work authorization, in most cases, an employer may legally fire you.

Most employers won’t do that – at least until Congress acts or fails to act on the future, if any, of the DACA program. An employer may agree to place an employee on a leave of absence until that employee can be authorized to work again, but that is the employer’s choice.

WHAT ELSE SHOULD THOSE WHO EMPLOY IMMIGRANTS KNOW?

However, employers should know that when any employee’s work authorization expires, that employee may no longer legally work for your business. Increasingly, businesses that hire immigrants are coming under scrutiny, and the current focus in Washington is on employer compliance. An experienced Ohio immigration attorney can help employers understand and remain compliant with the applicable immigration laws and regulations.

A number of proposals that will impact Dreamers are currently being considered by Congress, along with several proposals for a comprehensive overhaul of the entire immigration system. However, Congress is also dealing with other pressing issues – like hurricane relief and the potential threat from North Korea – so it may be months before Dreamers and their employers can have any final assurances regarding the future.