Leigh Cole, Editor
Dinse, Knapp & McAndrew, P.C., Burlington
by Leigh Cole
Deferred Action for Childhood Arrivals (DACA) has been front-page national news for several weeks, since Attorney General Jeff Sessions announced on September 5 that DACA is being phased out. As of this writing, under the new policy, DACA approvals will begin to expire on March 5, 2018, and all DACA approvals will expire by March 6, 2019. Vermont was one of the first 15 states that has sued the federal government to block the elimination of the program, and more lawsuits are being filed. There is momentum in Congress to address the issue in the coming legislative term, but we can’t predict what will happen.
All DACA beneficiaries are employed or enrolled in school or were honorably discharged from the U.S. military because that’s a threshold requirement for approval. There are about 800,000 DACA beneficiaries nationwide. Some states know they have a large number of DACA beneficiaries living, working, and studying within their borders. In Vermont, the DACA numbers are reportedly relatively small, but the numbers may be misleading. The statistics are based on residence reported to the U.S. Department of Homeland Security (DHS) for DACA approval or renewal, but DACA beneficiaries don’t necessarily continue to live and work in the state they reported to the government. Vermont employers may have no idea they have DACA beneficiaries on staff who could lose their work authorization starting March 6. And employers aren’t allowed to ask employees about their status.
Even if there are relatively few DACA beneficiaries in Vermont, the impact of the program’s phase-out can be very significant if your organization relies on one of them as an employee. Every Vermont employer should have at least a basic understanding of DACA in case it affects any of your employees— and, more important, to avoid an I-9 violation or a claim of employment discrimination.
Who qualified for DACA approval?
To qualify for deferral of deportation in two-year renewable periods under DACA, individuals must have arrived in the United States before they turned 16 and before DACA was implemented in June 2012, have been younger than 31 as of June 2012, be enrolled in school, a graduate, or honorably discharged from U.S. military service, have no criminal record, and pose no risk to public safety or security. Qualifying applicants are granted two-year periods of deportation deferral and work authorization, renewable in two-year increments if they continue to qualify for DACA.
Once a person has been unlawfully present in the United States for at least six months, it can be very hard to regain lawful status. Each case must be reviewed carefully to identify possible avenues under U.S. immigration law. There are categories of relief based on, for example, bona fide marriage to a U.S. citizen; military service; victimization by crime, domestic abuse, or human trafficking; fear of persecution; and extreme hardship to a U.S. citizen in the immediate family. Even though many DACA beneficiaries don’t qualify for any type of relief from deportation, it’s still worthwhile to explore possible options in every case.
DACA beneficiaries in Vermont
DACA applications and renewals are tracked based on the state where the applicant resided when the application was made. But an approved DACA beneficiary may live, study, and work anywhere in the United States. With so many colleges in Vermont and so many new hires of people moving to Vermont for employment, it’s very likely that the number of DACA beneficiaries in Vermont is higher than the number of Vermont residents who applied for DACA approval. That’s reflected in the DHS statistics showing 42 initial DACA approvals for Vermont residents and 162 DACA renewals for Vermont residents.
Those figures don’t include individuals who moved to Vermont after they applied for DACA status, left before applying for renewal, or were college students in Vermont who applied from their home state. And while most DACA beneficiaries came from Central America, Mexico, and South America, which make up a low percentage of the foreign-born population in Vermont, the DHS has reported DACA approvals for citizens of India (3,741), Jamaica (4,375), Pakistan (1,927), Philippines (5,055), Poland (1,951), and South Korea (7,813). Many citizens of those countries find their way to Vermont for education and employment.
The DHS also reports that there are 2,589 DACA approvals with an unknown country of origin (e.g., an applicant arrived as a baby after her parents traveled through many countries to get here and may not be available to provide details, so the child may not know exactly where she was born). If you picture a child growing up in the United States after arriving as an infant and knowing no other home, you can appreciate that there may be no way to identify a DACA beneficiary unless she tells you.
Understanding the scope of the problem
There’s a large population of foreign nationals in the United States who were brought here as children through no fault of their own and either arrived illegally or overstayed, which means they don’t have lawful immigration status. We don’t know exactly how many of these folks live in Vermont. Many of them don’t remember living in any other country and are American in every way other than not having a passport or a green card. Immigration violations are not criminal in nature, and many of these individuals have led exemplary lives in the United States, becoming high-achieving students (and even valedictorians), working as valued professionals and employees, or serving in the U.S. military.
Congress hasn’t been able to pass legislation to allow these individuals to become legal in the United States, and it’s simply not feasible to deport them. They may not even have a passport from their country of origin, and their country of origin may not cooperate with the U.S. government to accept them back, especially if they don’t speak the language or the country doesn’t appreciate how the U.S. government handled the situation as it developed. So the DACA program was introduced in June 2012 to allow individuals who meet stringent criteria to work and live in the United States without fear of deportation until Congress could address the issue.
The DHS reports that it apprehends and deports fewer than 100,000 foreign nationals in the interior of the United States each year. (The annual number of apprehensions at U.S. borders is much higher, accounting for people who are attempting to enter or have just entered the country.) There is a two-year backlog in U.S. immigration court. Individuals who have been in the United States for at least two years are entitled to due process and a hearing before an immigration judge to determine if they have a legal basis to remain in the United States. Adding just the 800,000 DACA beneficiaries to the DHS deportation and immigration court caseload would grind the system to a halt.
Don’t try to find out who’s a DACA beneficiary
DACA beneficiaries have no duty to volunteer any information about their immigration status. They have employment authorization documents (EADs) identical to the EADs issued in many other types of immigration cases, including for spouses of U.S. citizens applying for permanent resident status (a green card). An EAD is a List A document for I-9 purposes.
When a new hire presents an EAD with no notation about how the holder qualified for it, you aren’t allowed to ask for more information or documentation of the person’s immigration status. (If there is a notation on the card—e.g., “Post-Completion Optional Practical Training”— you should refer to the I-9 instructions for any other I-9 documentation that must be presented with the EAD.) You can face significant fines and penalties if you require extra documentation or additional steps in the I-9 process for new hires or employees who look or sound “foreign.” So unless a new hire or a current employee volunteers the information that she is a DACA beneficiary, you may never know, and most likely, you have no lawful way to find out.
Many employers are very curious about whether they have DACA beneficiaries on staff, perhaps with the best intentions of offering moral support and encouragement in the aftermath of the announced phasing out of the program. But making inquiries can amount to an I-9 violation or inconsistent treatment based on employment verification and therefore could look like discrimination.
I-9 rules protect both foreignborn and U.S. Workers
The I-9 rules protect foreign-born U.S. nationals and foreign nationals with U.S. work authorization from discrimination in employment as much as they protect U.S. workers from competition from undocumented workers. Just as you aren’t allowed to request more or different documents than the documents outlined in the I-9 and its instructions, you aren’t allowed to reverify I-9s unless they expire or ask employees for immigration documentation if their I-9s haven’t expired.
If you find a problem with an I-9 in a routine audit that isn’t focused on particular employees who look or sound like foreign nationals, you may be able to approach the employee, depending on the nature of the error. And there are some limited exceptions allowing inquiries outside the I-9 context (e.g., if the employer has to comply with export control regulations restricting the assignment of foreign nationals to work on certain projects). But in most situations, the I-9 rules severely restrict how you may inquire about the immigration status of new hires and current employees. The DHS takes I-9 violations very seriously, whether the employer is overly lax about documentation or overly zealous about requesting additional information or treating new hires and employees inconsistently.
What should Vermont employers do in light of DACA phase-out?
The most important things you can do right now for any DACA beneficiaries working at your organization is (1) make sure they know the window for renewing DACA is closing, possibly forever, and (2) caution them against traveling outside the United States if they obtained an advance parole travel document. Currently, October 5 is the deadline to file renewals for DACA approvals that end before March 5, 2020, and no other renewal applications will be accepted.
DACA renewals already pending with U.S. Citizenship and Immigration Services (USCIS) will be adjudicated, but applications for travel documents will be closed and returned to the applicant. It’s always been uncertain that DACA beneficiaries would be allowed to return to the United States even with an advance parole travel document and even if they traveled for a laudable purpose such as study abroad or to visit sick family members. Now it seems clear that it’s riskier than ever for DACA recipients to depart the United States if they plan to return, and they could be barred from returning for three years, 10 years, or even indefinitely. Any planned travel should be reconsidered in light of recent developments.
If a DACA beneficiary knows that you know about her immigration status and is comfortable discussing it, then you could approach her directly to make sure she’s informed about the recent changes to the program. A more cautious approach is to share the information broadly with your entire organization so DACA beneficiaries will have it. They may then choose to self-identify or discuss their situation with you.
If you open a line of communication with a DACA beneficiary, recommend that he confer with personal immigration counsel to explore his potential avenues to legal status. And if an employee is distressed and struggling with the information, treat the situation like you would any other personal matter that is causing an employee difficulty at work.
Leigh Cole can be reached at firstname.lastname@example.org or 802-864- 5751.