On September 5th, the Trump Administration announced that it would take steps to wind down the Deferred Action for Childhood Arrivals (DACA) program. DACA began in 2012 under the Obama Administration and currently allows for young, undocumented immigrants who were brought to the United States by their parents as minors to remain in the country and work legally under temporary work permits. DACA work permits were renewable every two years. To originally qualify for DACA status, applicants were required to prove they:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching their 16th birthday;
3. Had continuously resided in the United States since June 15, 2007, up to the time of making their DACA request;
4. Were physically present in the United States on June 15, 2012, and at the time of making their DACA request;
5. Had no lawful status on June 15, 2012;
6. Were in school, had graduated or obtained a certificate of completion from high school, had obtained a general education development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.

A survey conducted by the University of California – San Diego in conjunction with United We Dream, the National Immigration Law Center and the Center for American Progress this year estimates that around 91% of individuals covered by the DACA program – often referred to as “Dreamers” – are gainfully employed, appearing on payrolls for 72% of the top 25 Fortune 500 companies.

While Congress may take up and pass some version of a DREAM Act to accomplish legislatively what DACA previously implemented, that is still an unknown. In the meantime, what does the DACA rollback mean for employers?

1. Employers may not know whether or not there are DACA recipients on their payroll.

Dreamers are legal participants in the U.S. workforce and their paperwork is similar to other types of temporary work permits employers may see. As individuals are not required to disclose their DACA status, employers may not immediately know who will be affected by this policy change without looking closely at the employment authorization documents provided at the time of hire. To check the status of a temporary permit employee, employers may look at the employee’s Form I-9, which should be on file. Employers should not ask employees to resubmit Form I-9, nor should they directly ask if any worker is a DACA recipient.

Section 1 of the I-9 indicates that an employee has temporary employment eligibility that expires on a certain date. Along with Form I-9, employers should also have on file photocopies of any employment authorization documents; DACA participants have work authorization based on Category C33.

2. DACA employees whose deferred action benefits are set to expire between September 5, 2017 and March 5, 2018 have until October 5, 2017 to submit renewal requests that could allow them to stay into the country until 2020.

Employees and employers are encouraged to check temporary employment eligibility dates, and to act accordingly if they are set to expire soon or within the time frame listed above. DACA recipients who remain good candidates for renewal and have an expiration date between September 5 and March 5, 2018 are permitted to submit renewal requests to U.S. Citizenship and Immigration Services. Employers who have access to the I-9 Forms received at the time of hire should review those forms for workers whose temporary permits expire soon, and encourage them to renew their permit, regardless of whether the authorization is based on DACA or any other program. Employees with DACA work permits can obtain renewal information here.

3. Firing DACA recipients prematurely may be illegal.

Individuals with valid DACA work permits, as legal employees, are protected against discrimination in the workplace like any other workers, which includes protection from discrimination due to national origin or immigration status. These workers are legally permitted to work until the date on which their temporary employment eligibility expires. Terminating employment before that date solely because of their national origin, immigration status, or participation in DACA may be considered discriminatory.

4. There are legal penalties for employing DACA recipients after their work permits expire.

It is unclear whether there will be increased auditing and enforcement following the DACA announcement, but it is certainly possible. Employers who continue to employ individuals whose work permits have expired could be subject to civil fines ranging from $548 to $4,384 per unauthorized offender, and those who have been cited for a pattern of violations face potential imprisonment and fines.

5. Employers who have questions regarding what DACA means for their company or how to plan for any impact of the rollback on DACA-covered employees are encouraged to speak to counsel before taking any action on their own.