Last week, a U.S. District Judge Andrew Hanen ruled that the Deferred Action for Childhood Arrivals (DACA) program was implemented unconstitutionally as the U.S. Department of Homeland Security (DHS) did not follow proper federal procedures when it implemented the program.
DACA is a federal government program that the Obama administration created in 2012 to provide work authorization and temporary protection from deportation to some undocumented immigrants who were brought to the U.S. as a child. The term “dreamer” has frequently been used to describe undocumented immigrants who came to the U.S. at a young age, but the name originated with a bill – the Development, Relief, and Education for Alien Minors (DREAM) Act – that was first introduced to Congress in 2001. The Dream Act aimed to provide Dreamers a path to U.S. citizenship. Though revised and re-introduced many times, the bill has never passed, however, today, the terms DACA and Dreamer are often used interchangeably.
What does this mean for employers?
Some organizations are reluctant to employ DACA recipients because of concerns about the DACA program continuing. Last week’s ruling does not currently impact current DACA beneficiaries. DHS may continue renewing permits for current DACA recipients while Congress and the Biden administration figure out how to cure the legal defects that are undermining the DACA program. President Biden said the U.S. Department of Justice intends to appeal Hanen’s decision.
Moreover, employers should note that DACA recipients are covered by most of the Immigration Reform and Control Act (IRCA) of 1986’s anti-discrimination provisions which prohibit employers from discriminating on the basis of national origin, engaging in document abuse, and retaliating against job applicants and employees for exercising their rights under IRCA.
Employers are required to have a completed FormI-9 on file for all new hires. USCIS provides instructions on their website for how to complete a Form I-9 for employees with extended work authorization under DACA.
Additional resources are available at I-9 Central, an online resource that contains information, Q&As, pictures of documents, etc. regarding the Form I-9. Employers Council members may also contact the Employment Law Services team at 800.884.1328 for further guidance.