On September 5, 2017, the Trump administration announced that it would formally end the DACA program.  The Deferred Action for Childhood Arrivals (DACA) program, which commenced five years ago, protects certain undocumented immigrants brought to the United States as children from deportation and allows them to receive employment authorization.  DACA is set to expire on March 5, 2018, and President Trump requested that Congress replace this policy with new legislation prior to DACA’s expiration.  If Congress is unable to enact new legislation to protect this program, DACA will terminate, impacting over 800,000 individuals currently covered by this program. 

How the DACA Rescission Will Work

During this six-month period (from the September 5 announcement to March 5, 2018), DACA will not be revoked for individuals who currently have a valid employment authorization card. New applications for DACA received by September 5, 2017, will still be adjudicated.  Applications received after this date will not be adjudicated. Individuals whose DACA expires within the next six months have until October 5, 2017, to apply for renewal.

Once their employment authorization expires, DACA recipients will no longer be eligible to work in the United States. While the Department of Homeland Security (DHS) stated it will not specifically target DACA recipients, they could still face arrest and deportation by Immigration and Customs Enforcement (ICE).  DHS announced that it plans to issue formal guidelines on how DACA recipients, and their information, will be treated. 

The Effect on U.S. Employers

Employers can continue to employ DACA recipients with valid Employment Authorization Documents (EAD).  Once the EAD expires, it will be unlawful for employers to continue employing DACA recipients, and therefore should terminate their employment. Employers may not, however, terminate employees now on the basis that their EAD is expiring at a future date and cannot be extended.

DACA recipients whose EAD is expiring within the next six months (i.e., before the March 5, 2018 DACA expiration date) should apply for a renewal as soon as possible, and no later than October 5, 2017.  DACA recipients are not allowed to work if their current EAD expires, even if they are awaiting an approval of an application to extend it.    

Employers should review the expiration dates of employees on DACA and make preparations for workforce replacement in the event Congress fails to enact legislation to protect DACA recipients.

Littler is continuing to monitor this situation and will provide updates as they become available.