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As DACA Goes (Or Not), I-9 Compliance Becomes Critical
U.S. Supreme Court
October 15, 2017

On September 5, 2017, Attorney General, Jeff Sessions announced that the Federal Program known as DACA (Deferred Action for Childhood Arrivals) would be rescinded and unwound over a six-month period ending March 5, 2018. As the deportation relief and work permits were originally issued in 2012 for a renewable two-year period to nearly 800,000 undocumented immigrants who came to the US as children and met other age, educational and criminal background criteria, many of these “work Visa’s” or “EADs” (employment authorization document) may not expire on or before March 5, 2018. It will not be an organization’s job to police any legal EADs for DACA program employees if their EAD’s expire on or after March 6, 2018. However, having a good “Notification Program” in place to ensure you catch expiration of any expired documents (at least 6 months in advance of expiration) in the I-9 system, will keep your organization compliant with US Immigration Services, and prevent the appearance of discrimination.

A few weeks after the announcement, President Trump began working with the Democrats to address the DACA Program, and “tweeted” that the program may become law.

Whether or not the DACA program winds down or becomes law, it has become critical for HR professionals to ensure that their I-9 forms are in order. Many of these DACA program participants and other immigrant workers have expirable EADs which allow them to work in the US for a specified period of time. Their I-9 form and/or E-Verify entry will reflect that expiration date, and all employers must ensure that they are being compliant about adhering to those dates, EXACTLY. If you have any DACA participants whose EADs expire before March 5, 2018, they only have until October 15, 2017, to reapply for another two-year extension.

To ensure you are not singling out DACA program participants and therefore risk discriminatory practices, you should always review all EADs with expiration dates on a regular basis, and have some sort of “notification system” to remind you that a specific EAD is coming up for expiration and you need to address new documentation, or separation – whichever is required in each specific situation.

Please do not discharge anyone with a legal work permit, or decline to offer employment to anyone with one based solely on the fact that they have disclosed they are a DACA program participant. This will only bring charges of discriminatory treatment to your organization. Additionally, employers should be careful about going overboard in trying to help DACA program recipients. Employees are not required to disclose their DACA status and employers should not ask. HR professionals and supervisors also shouldn’t ask employees about their future plans, even if workers self-disclose their DACA status. However, it may be helpful to have a list of resources readily available for affected workers if they do disclose to you.

Immigration is a big issue with this administration, so make sure you do not incur penalties. Check your I-9 documents for possible expiration dates NOW!

Trying to be compliant in this situation can be very daunting. We at KardasLarson are always available to help in this complicated area.

Lois Krause

Lois Krause

Author

With 25+ years of experience, Lois Krause's HR strengths include labor law, employee relations, OD, and performance management. Lois has advanced HR certifications.

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