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Sep 19, 2017

Q&A: Don’t make any employment changes in light of DACA rescission

Q&A 

Question: I understand the Deferred Action for Childhood Arrivals (“DACA”) program was rescinded. One of our employees obtained work authorization through the DACA program. Do I need to fire her?

Answer: No, instead you should follow your normal Form I-9 process of following up when existing work authorizations expire. DACA was created by President Obama through an executive order that directed the Department of Homeland Security (DHS) to grant work permits for qualified people who entered the United States illegally as children. When DHS announced on September 5, 2017, that the Trump administration is rescinding DACA, it stated that it won’t revoke existing Employment Authorization Documents based solely on this change in position. Furthermore, DHS will continue to accept and process DACA renewal requests for work permits that will expire between September 5, 2017, and March 5, 2018, as long as the renewal applications are accepted by October 5, 2017. However, new requests for work authorization under DACA no longer will be accepted.
 
As an employer, you’re not expected to monitor whether an individual qualifies for protection under DACA. Rather, you must ensure the Form I-9 is properly completed and you must review the documents presented to verify that they appear valid and relate to the individual presenting them. If a new hire’s work authorization will expire in the future, you should flag your calendar so you can follow up at least 30 days before the expiration date to ask for updated documentation. For your employee who obtained work authorization through DACA, the document she gave you during the I-9 process should have had an expiration date, so you’ll need to follow up as appropriate when the time rolls around. Once the document expires, and if she is unable to provide other proof of work authorization, only then would you need to terminate her employment. For an overview of the I-9 process, see our Legal Guide, “At a Glance: Form I-9”.
 

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