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I-9 E-Verify Immigration Compliance

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  1. Effects of Temination of DACA on Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), media focus has been on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients.

    Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely).

    But before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018.

    As an example, DACA employee Jose has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD (if the renewal is filed by October 5, 2017). Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate. Thus, employers must be observant of the EAD’s expiration date.

    How does an employer even know whether the EAD is through DACA, TPS, or withholding of removal? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19.

    Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. However, if an employer chose to discharge a DACA recipient based on his DACA status, it is very unlikely that the discharge would be unlawful under the anti-discrimination provisions of the Immigration and Nationality Act.

    Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4000, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties.

    For the answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, available on Amazon at http://www.amazon.com/dp/0997083379.
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