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How Trump’s DACA decision impacts employers

September 15, 2017

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

President Trump’s decision to end the Deferred Action for Childhood Arrivals program (DACA) established by President Obama by executive order in 2012 has impact on employers.  The program now covers 787,580 people who have been approved for the program, according to the latest government figures.  To be eligible, applicants had to have arrived in the US before age 16 and have lived here since June 15, 2007. They could not have been older than 30 when the Department of Homeland Security implemented the program in 2012.

Those eligible, or Dreamers, were able to apply to defer deportation and legally reside in the US for two years. After that, they could apply for renewal.   According to Homeland Security, 240,070 had applied for renewal by March 31st.  Approximately 800,000 renewals had been approved.  Renewals will continue to be processed for the next month according to the agency.

Those under the program are called Dreamers because it relates to a law, the Dream Act, which was first introduced in 2001.  It was reintroduced with every new Congress, but eventually voted down in the 2010 Congress.  The proposed law would offer legal status to children who come to the country with their parents in return for attending college or joining the military.

Before the situation reverses for Dreamers, President Trump gave Congress a six-month window to act.  President Trump believes that Congress should enact a law, rather than having the protection made by executive fiat.   In other words, it is believed that President Trump’s approach is to push Congress to pass immigration reform, something it hasn’t done over the past seven years.  

“We will resolve the DACA issue with heart and compassion — but through the lawful Democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” President Trump said when announcing the decision.

So how does the DACA decision impact employers?  First, anyone working under this program will lose their right to work when their work permits are expired.  There will be no renewal.  If an employer ignores any legal requirement such as recertifying I-9s and continues to employee a Dreamer, the employer (and HR representative) could be subject to civil and criminal penalties, including jail. 

Second, employers should not terminate any Dreamer simply because his status will change.  It could open doors to national origin discrimination charges.  However, it is hard to predict how the justice department will review and follow-up on these types of complaints.

Third, even if an employer wants to keep the Dreamer employed, it would have to follow a legal path to do so, such as the H-1B program.  With that program running at capacity, it is unlikely that many will be able to use it as a means to keep the employee.

Fourth, with such a polarizing past year in politics, the actions that other employee opinions on Dreamers could further polarize the workforce.  With the 2018 election cycle coming up, it is unlikely that Congress might do something, and even if they do, it is uncertain whether the president would sign the bill or not.
Microsoft has publically stated that it will defend the 39 Dreamers it employees if Congress fails to enact a law.  “If the government seeks to deport any one of them, we will provide and pay for their legal counsel,” said Brad Smith, Microsoft’s President and Chief Legal Office, in a blog post.   Although the numbers seem small, the impact of the DACA decision looms large for employers.  Those employers who employee Dreamers should discuss options with their legal counsel as to the next steps.

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