What Employers, Compliance Managers and Recruiters Should Do/Not Do to Prepare: A Recruiter’s Worst Nightmare and Fondest Hope to Live on the Edge

Background

The federal courts (all the way up to the SCOTUS) had struck down and enjoined the “DAPA” program (“Deferred Action for Parents of Americans and Lawful Permanent Residents”), a “kissing cousin” to the DACA program (“Deferred Action for Childhood Arrivals”), both of which President Obama had loudly championed. (“Deferred action” is an immigration term meaning that DHS has exercised its discretion to not deport an illegal alien but has rather “deferred” (i.e. delayed) that action for some temporary period of time. President Obama’s then Department of Homeland Security Secretary, Janet Napolitano, signed DACA into “law” in 2012 and thought of it as her crowning achievement as the head of DHS. DHS enacted DACA and DAPA via memoranda: first (as to DACA), via a June 15, 2012 memorandum she titled, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children“. The DACA program caused DHS immigration enforcement officials to exercise their prosecutorial discretion to allow aliens who illegally entered the United States before the age of 16 a period of “deferred action” (from arrest and deportation) to request proper employment authorization. DACA then issued work authorizations to these young illegal aliens, who advocates dubbed as “Dreamers”. The work authorizations were for two year periods of time, with rights to renew for another two-year period, both protecting the DACA “beneficiaries” against deportation and allowing them to lawfully work in the United States. Then, (as to DAPA) on November 20, 2014, then DHS Secretary Jeh Johnson issued an updated memorandum which expanded DACA and created a new policy called “Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). DAPA expanded DACA to allow a wider range of ages and arrival dates to qualify illegal alien children to be immunized from deportation and to lawfully work in the U.S. and increased work authorizations to three years, also with right of renewal. DAPA also, for the first time, extended prosecutorial discretion to DHS not to deport illegal aliens who had a “son or daughter who was a U.S. citizen or lawful permanent resident”. Both DACA and DAPA were blatantly unlawful. After DHS issued its DAPA memorandum announcing the new program, 26 states banded together and challenged in the federal courts ONLY DAPA (and not DACA) before DAPA was scheduled to take effect. The federal courts had no difficulty quickly striking DAPA down as violative of the separation of powers doctrine in the U.S. Constitution (since The Congress had not authorized President Obama and the Executive Branch of Government to legislate immigration policy). The Courts also found that DAPA violated the Administrative Procedure Act (a now well familiar legal frailty of many of the previously most memorable policy initiatives of the Obama Administration) since DHS had also not published its new purported immigration Rules for Notice to and Comment by the public. Accordingly, DAPA was never implemented. Nonetheless, The Obama White House correctly and shrewdly foresaw that any Republican rescission of either DAPA or DACA would put the Republicans in a very difficult political position since almost 3/4ths of all Americans favor some form of path to legalization of these alien children who entered the United States illegally, usually because they accompanied their illegal alien parents across the border. There is thus tremendous sympathy and enmity across the U.S. for these “Dreamers” who are viewed as largely innocent victims of their parents’ crimes. And now, almost 3/4ths of a million of these illegal alien (former children) hold jobs in the United States and thus threaten a further labor shortage once no longer authorized to work, and a large recruitment challenge to backfill approximately 720,000 jobs to be vacated between now and March 5, 2020.

What Just Happened?

While waiting for Congress to act to address the situation, the Trump DHS has continued to process DACA work authorizations and to NOT deport Dreamers, unless they became involved in criminal offenses. A number of States on June 29, 2017 then threatened to sue the Trump Administration and DHS for failing to enforce the country’s immigration laws (a DAPA repeat lawsuit as to DACA, if you will). To avert that awkward development, to implement a Trump campaign promise to end DACA (on his first day in office), and seeing a political opportunity to finally get “The Wall” built on the border by tying the President’s commitment to not veto a bill creating a path to citizenship for Dreamers in exchange for funding to construct The Wall, The Trump White House ordered Elaine Duke, Acting Secretary of DHS, to issue her September 5, 2017 “Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA)” and for Attorney General Sessions to announce it in a major Press Conference last Tuesday. The key points of the Trump Administration’s new position on DACA are:

1. Attorney General Sessions sent a letter to DHS on September 4, 2017 finding that DACA:
   

   “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch”.

   The letter concluded by noting that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” AG Sessions then ended his letter by recommending that DHS wind down DACA in an efficient and orderly manner.

2. DHS then reported in its September 5, 2017 memorandum that it will NOT invalidate work authorizations currently in effect. Rather, DACA work authorizations, like all work authorizations, are good until they expire and are no longer renewed. [Best estimates are that about that an average 1400+ or so work authorizations PER DAY nationwide began to expire last Wednesday, or about 30,000 PER MONTH will expire between now and March 5, 2020, the last day any work authorization currently in effect and as renewed (see below) might continue in effect.
   • Note: Work authorizations expire on their noted dates. Some private projections report that DACA work authorization expirations can be expected to crest between July and December 2018 during which a record almost 300,000 work authorizations (an average of 50,000/mo) are expected to expire and not be renewed pursuant to the terms of DHS’ September 5, 2017 Memorandum. Click on this link to a report from the Center for American Progress, which advocates for Dreamers, among other things, and reports expected DACA work authorization expirations quarter by quarter. The Center for American Progress has also developed a chart of the number of DACA work authorizations, by state, which you may find here. Look out California and Texas!
3. DHS will continue to process (i.e. “adjudicate—on an individual case-by-case basis”) all work authorizations which DHS had accepted as of September 5, 2017 (last Tuesday)= the date of DHS’ Memorandum. So, this is the first critical date: New applications for DACA work authorizations which DHS had accepted for processing on or before September 5, 2017 will continue to be processed.
4. DHS will categorically reject ALL requests for NEW work authorizations filed on or after September 6, 2017 (the day after DHS’ Memorandum). So, this is the second critical date: no more NEW applications for DACA work authorizations will be received on or after September 6, 2017.
5. However, as to those “current beneficiaries whose benefits will expire between the date of this memorandum [i.e. September 5, 2017] and March 5, 2018 [which is 6 months after the Memorandum’s September 5, 2017 publication date] that have been accepted by the Department (i.e. DHS) as of October 5, 2017”, DHS will “adjudicate—on an individual case-by-case basis all properly filed DACA renewal requests”. So, this is the third critical date: DHS has thus given notice that EXISTING work authorizations expiring ON OR BEFORE March 5, 2018 will be eligible for a FINAL two-year renewal. Said in the negative, this is the fourth critical date: DHS has thus given notice that DHS will not process for renewal any EXISTING work authorizations expiring AFTER March 5, 2018.
6. Dreamers with DACA work authorizations currently in effect and expiring between September 5, 2017 and March 5, 2018 MUST have DHS “accept” their work authorization renewal documents between now and October 5, 2017 (now less than a month from the date of this WIR) to have DHS process their two year final DACA work authorization renewal request. So, this is the fifth critical date: Existing DACA work authorization beneficiaries MUST have DHS accept their final two year work authorization renewal request on or before October 5, 2017.
7. So, this is also the sixth critical date: DHS is saying that there will be no more DACA work authorizations in effect AFTER March 5, 2020 (i.e. 2 years from March 5, 2018=the last date of current work authorization expirations which may be renewed for two more years).

Click here to see DHS’s new website (as of last Tuesday) devoted to the DACA work authorization program.

What Does It Mean for You as An Employer?

1. Absent a legislative resolution or a court injunction stopping the September 5, 2017 Elaine Duke Memorandum, several hundred employers in the United States, and especially the Fortune 25, are going to lose an estimated 720,000 employees over the next 30 months, and especially in Q3 and Q4 of 2018.
   • Note 1: President Trump is hopeful that his action last week will now provide the final pressure needed to galvanize The Congress to act to either create a path to citizenship for the Dreamers or to confirm that The Congress wishes to deport them. Because no Dreamer with a current DACA work authorization will be adversely affected for 6 months, The President is hoping to force the answer in the next six months.
   • Note 2: In a curious side note underscoring the political nature of the DACA rescission controversy, Janet Napolitano, author of the Obama Administration DACA memorandum which stood DHS down from enforcing the immigration laws against the Dreamers, is now the President of the University of California. On Friday, September 8, 2017 (three days ago), Ms. Napolitano teamed up with her former lawyer in the Obama Administration–Eric Holder, then Attorney General of the United States under President Obama—to file suit in federal District Court in her capacity as the President of the University of California “to prevent the government from stripping DACA recipients of their ability to live, study and work in our country free from fear of deportation.” That lawsuit has a very uphill battle ahead of it to even have “standing” (i.e. be within the zone of injury caused by the at-issue action) to sue on behalf of UofC’s Dreamer students, let alone to compel enforcement of DACA with its obvious constitutional and administrative law flaws. Moreover, the UofC lawsuit will undoubtedly draw a countersuit from immigration foes and tax watchdogs challenging its bona fides and the UofC’s ability to use state of California tax monies and student tuition fees to pursue either personally or politically motivated litigation against the federal government. This side-show circus may beget more side-show circuses, and we are only in working day 4 of the renewed (no pun intended) DACA saga. The Fall could be a very politically nerve wracking period for both Republicans and Democrats and immigration supporters and opponents. More battle lines are being drawn as the roll-back of everything Obama continues and as the former Obama political team learns the frailty of Executive Orders and memoranda-rulemaking which are so easily overturned by successor governments in the absence of policy-making rooted in legislatively enacted statutes: like writing on beach sand quickly swept away by the incoming tide.
2. Employers which continue to employ Dreamers whose work authorizations have expired could suffer financial fines ranging from $548 to $4,384 per unauthorized employee for first time employer offenders. Criminal penalties are also available for a pattern of continuous violations with a potential for up to 10 years in jail, in addition to the financial penalties.
3. Most employers will not even know which of the work authorizations in their employee files belong to Dreamers since the immigration code for DHS’ DACA exercise of its prosecutorial discretion to stand down from deportation and to grant Dreamers work authorizations is not printed on any of the I-9 forms. (That code is (c)33 (“Consideration of Deferred Action for Childhood Arrivals”) found on the Application for Employment Authorization Form I-765 The U.S. Citizenship and Naturalization Services agency (a sub-agency of DHS) publishes for DACA applicants to complete to seek work authorizations). While every employer is supposed to have a list of work authorization termination dates (to ensure all employees are authorized to work), it will be a surprise to most employers as to when an employee will lose his/her work authorization due to DACA’s rescission. While some employees authorized to work pursuant to DACA may step forward to alert their employer as to when in the future they will lose their work authorization, the Dreamers are under no obligation to do so. Indeed, most employers will likely hear about an employee’s loss of work authorization at the last minute as Dreamers hope for another 11^th hour political reprieve creating a path to citizenship for them and the right to work in the meantime.
4. If your company currently employs a DACA beneficiary, an 1870 U.S. civil war era federal statute (42 U.S. C. 1981 ) designed to allow emancipated slaves in the South to make and enforce contracts on the same basis as Whites MAY make it unlawful to terminate a DACA beneficiary because his/her work authorization will expire in the future. The legal uncertainty here is that the immigration laws protect only U.S. citizens, permanent residents and persons granted refugee or asylee status [see 8 USC Section 1324b(a)(3)]. However, DACA beneficiaries fall into none of those protected categories: tough news for the Dreamers (they are illegal aliens in the eyes of the law as to whom the federal government has currently simply chosen not to prosecute for deportation and has allowed to work without prosecuting either the employee or the employer for work without proper authorization. So, the Dreamers are currently “legally present” in the United States. In immigration law, this is known as “deferred action”, as noted above). However, United States federal District Court Judge Katherine Forrest extended in 2015 what is known in the law as “alienage protection” (i.e. protection against discrimination based on citizenship) via 42 U.S.C. 1981 to “all lawfully present aliens” (which would include DACA beneficiaries). See Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014)
   • Note: Title VII does not make alienage discrimination unlawful, so this legal issue is only whether 42 USC 1981 would attach and, if so, whether the proof would be that the employer unlawfully discriminated based on the DACA beneficiary’s citizenship. The DACA beneficiary would argue that the employer which took adverse action (to terminate a Dreamer still possessed of a valid work authorization but not eligible for indefinite renewal) did so only because of his/her alienage (i.e. if s/he were a citizen, no adverse action would have occurred, and of course the termination would NOT have been because the employee was not authorized to work since the work authorization was still in effect). So, the crapshoot here is whether you think your lawyer could convince a court that 42 USC 1981 did not apply to illegal aliens remaining lawfully in country on deferred action (i.e. temporarily lawfully permitted to be in the U.S. and to work). But, despite the fact that immigration and Dreamer lawyers are already festering about the possibility and probability of employers peremptorily firing Dreamers still possessed of valid work authorizations which will eventually expire, I imagine this scenario to be fairly far-fetched. Rather, I suspect that in this era where “the dugouts are empty”, most employers will try to hold on to their Dreamers to the last minute, but would appreciate very much the heads-up as to when they will have to backfill the position when the Dreamer can no longer lawfully remain workin in the U.S.
5. So, that leads to the important HR question staffing managers are interested to know about. May the employer ask the Dreamers when their work authorizations expire. Short answer: I think so, but this is a “10-point dive” and you need a lawyer to walk you through this, carefully. Immigration lawyers strongly advise against asking employees with work authorizations whether they have the ability to renew. They fear this will be viewed as violative of the prohibition on alienage discrimination. But, note that alienage protections under the immigration laws do not reach to and protect DACA beneficiaries. So, you are back to the two concerns discussed above: whether 42 USC 1981 might attach to your inquiry, and if so, are you taking any adverse action based on citizenship? The answer to the second question would be “No” if you ONLY made inquiry for the purpose of cataloguing the “worst case scenario date” when the Dreamer might have to quit work or be fired for violation of our immigration laws (absent a legislative fix for the Dreamers). The company would be taking no adverse action based on citizenship, even if 42 USC 1981 is otherwise found to attach to your inquiry. Rather, HR representatives would be collecting information only to plan for possible employee replacement when his/her work authorization fails and s/he either fails to show for work or does so without a proper work authorization. You must further consult a lawyer for the specific facts of your inquiry since this is a sensitive area of evolving law. Be careful out there!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.