The battle over the future of illegal immigration in the United States is increasingly being fought in the workplace, with employers caught in the middle.
Earlier this year President Trump declared that he would end the Deferred Action for Childhood Arrivals (DACA) program by March 5, 2018 and left it up to Congress to craft new legislation to modify and maintain the program.
Since then there has been little movement in Congress toward passing a new law.
If Congress fails to act, it is estimated that more than 800,000 people who entered the U.S. under this DACA, who are often called “Dreamers,” will be subject to deportation starting in March.
As of Oct. 5, the U.S Citizenship and Immigration Services ceased accepting new applications for DACA benefits, including two-year work permit renewals. Cases pending review at that time were administratively closed and filing fees refunded.
The renewal portion of the President’s order is currently facing a court challenge that was brought by the state of California.
It is estimated that about 22,000 Dreamers failed to renew their status by the Oct. 5 deadline, and as a result no longer have work authorization and protection from deportation.
Legislation to reinstate most of DACA has gained support from the high tech industry, the U.S.
Chamber of Commerce as well as from labor unions, colleges and immigrant groups.
Critics have argued that under the original law enacted in 2012, many of the Dreamers who since entered the U.S. under the program did so in violation of the DACA law’s requirements, such as failing to meet established age limits and possessing disqualifying criminal records.
In the meantime, California has enacted several new laws aimed at protecting illegal immigrants in the workplace. One of these threatens employers with fines if they fail to demand that federal immigration enforcement personnel produce subpoenas or court orders when they show up to inspect worksites (AA, 10-15-17, P. 3).
That law was one of 11 bills that were signed into law by Gov. Jerry Brown that were intended to establish California as a “Sanctuary State.”
Thomas Homan, acting director of U.S. Immigration and Customs Enforcement, expressed outrage over the new California laws.
“ICE will have no choice but to conduct at-large arrests in local neighborhoods and at work sites, which will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community,” he declared.
If you employ any of the people who entered the country under DACA, keep in mind that their Employment Authorization Documents (EADs) will remain valid until their expiration dates.
What’s an Employer to Do?
You may want to reach out to help these employees, but existing laws create several barriers. For example, employees are not required to inform employers that the EADs they supplied were obtained under DACA.
In addition, it is illegal for an employer to ask employees if they are DACA recipients or how they obtained their EADs. The exception is a situation where employees choose to inform you about their DACA status. In those cases, you may discuss these issues with them.
Of course, there is a Catch 22. If ICE discovers that any of your employee’s EADs have expired, you can find yourself in deep trouble. That includes possible imposition of fines ranging between $375 and $14,050 for each employee that you knowingly hired or continued to employ after they are no longer authorized to work in the U.S.
In addition, it’s the employer’s responsibility to approach the employee to find out if they will obtain some other kind of work authorization before their current DACA status expires.
“Every DACA employee’s situation is potentially different and employers should not attempt to give immigration advice about their status in the U.S.,” says Grant Sovern, and attorney with the law firm of Quarles & Brady.
“Instead, employers should recommend that the employee speak to an experienced immigration attorney who can gather all of the relevant information and help them evaluate legal risks and any available immigration options.”
In late October, ICE’s Homan announced that his agency is aggressively stepping up worksite enforcement and will increase by four to five times its number of worksite enforcement actions in 2018.
As a result, expect to see more arrests not only of business owners, but also of managers, supervisors and even human resources personnel. Anyone who knowingly employs an illegal immigrant will face additional risk of being arrested next year.