Legal Alerts

Legal Alert: What Employers Need to Know About DACA and the October 5th Deadline

09.05.17

Enacted in 2012, the Deferred Action for Childhood Arrivals (DACA) program allowed individuals who were brought to the United States as children or teens to apply for protection from deportation and work permits if they met certain requirements. As a result, more than 700,000 DACA recipients have received employment authorization documents (EADs) and entered the workforce. 

On Tuesday, September 5, 2017, U.S. Attorney General Jeff Sessions announced that the Department of Homeland Security formally rescinded the DACA program, with a six-month delay for current recipients, intended to give Congress time to find appropriate legislative solutions. A Memorandum on the Rescission of DACA, issued by Acting DHS Secretary Elaine Duke, clarified that no current DACA recipients will be affected before March 5, 2018. DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance. 

The Memorandum stated that the Department of Homeland Security will reject new DACA petitions received after September 5, 2017 but will continue to adjudicate DACA renewal petitions. DACA beneficiaries whose benefits expire between September 5, 2017 and March 5, 2018 must file their renewal requests by October 5, 2017

While the DACA program did not provide lawful immigration status to recipients, it did authorize them to lawfully work in the United States. Employers are required to verify the employment authorization documents of all employees by completing a Form I-9. The EAD document establishes both identity and employment authorization under “List A" of the Form I-9 and employers should continue to accept unexpired EAD from DACA recipients. 

When the validity period of an Employment Authorization Document expires, employers must reverify using Section 3 of the Form I-9 to ensure that employees are still authorized to work. Employers must terminate employees without valid work authorization, but it is best practice to provide advance notification to employees on expiring documents and request updated documents before making termination decisions.

For questions or more information about this alert, please contact our immigration attorney, Maya Salah at 612.371.3213.

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Associate
Director of Diversity and Inclusion
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