Last week, the Trump administration signaled it may soon rollback the DACA program, also known as Deferred Action for Childhood Arrivals. An announcement on the program could come as soon as this week.
DACA has allowed a generation of young adults, who immigrated to the U.S. illegally as children, to live and work here legally. Since 2012, nearly 800,000 people have been granted DACA authorizations - more than 200,000 of them are in California. The authorizations last two years and are renewable.
Most DACA recipients, also known as "Dreamers" are Latin American immigrants in their 20s and early 30s who have completed high school. Studies indicate that at least 80 percent of them work full-time, roughly 20 percent have at least a bachelor's degree, and another 20 percent have either an associate's or vocational degree.
With these rates of college education, it's no surprise that DACA recipients work across a range of industries – many in white collar jobs.
If the DACA program is rescinded, those workers would become ineligible to work. The Trump administration could immediately invalidate all DACA work authorizations, or it could draw down the program gradually over the next two years by no longer issuing renewals.
If the program goes away, it will force employers to part ways with employees who are no longer authorized to work. We brought our questions to Yova Borovska, an immigration attorney who consults with companies on human resource management.
Does the boss know which of his/her workers are covered by DACA?
Maybe not the top boss, but HR departments generally keep track, Borovska said. All employees fill out I-9 forms when they begin a job. DACA recipients have to show their federal work authorization at that time. Most medium to large companies note the date of the authorization, and they have systems in place to alert them when the authorization is due to expire.
In the past, DACA recipients simply obtained a renewal authorization to replace the expired one, but if the government stops issuing those renewals, an employer will likely be forced to lay the employee off.
However, companies should first check if their employee qualifies to work under any other legal authorization, Borovska said.
"Some individuals will have no options at all, so they’ll have nothing to present," she said. "Other individuals may have a permanent residency pending. Or maybe have a temporary protected status."
Employers are already searching for options to keep their DACA employees in place, in the event that the program goes away, said Borovska.
"They’re asking about alternatives. You know, can we sponsor this employee for permanent residency through employment? Or is there anything else that we can do for the individual based on their circumstances?" she said. "The employers are concerned that they'll lose their workforce. And these are individuals who in some cases have graduate degrees. They’re not individuals who do unskilled labor. They’re people who sometimes have STEM degrees."
What if a company doesn't realize its employee's DACA authorization expired, or looks the other way?
Borovska said she can imagine that some DACA recipients (and their employers) will pass under the radar and continue their current work arrangements.
However, she said, the worker - and the business - could get caught when the employee files his/her income taxes. It depends on how aggressively the Trump administration clamps down on DACA workers.
"They have everybody’s name and information on file for all of these individuals with DACA status," she said. "They could potentially connect with the IRS and find out if this individual is continuing to get paid, and if they report the wages."
Also, federal Immigration and Customs Enforcement already audits businesses to find illegal workers by combing through I-9 forms. The I-9 verifies an employees can legally work in the U.S. These so-called "I-9 audits" are common in industries that have traditionally employed first-generation immigrants, like clothes manufacturing, hospitality and food processing.
It would be more difficult for ICE to find DACA recipients who are working with expired authorizations, since these workers are spread across a wide range of industries and professions. Many are employed in industries that don't traditionally employ illegal workers. It's a needle-in-a-haystack situation.
However, Borovska said, the Trump administration may step up its I-9 audit program to cover more ground and surveil businesses.
"We don’t know if [the Trump administration] will completely change the way they do I-9s," she said. "Because the I-9 area is pretty lucrative for the government because of the high amount of the fines. So they could decide to go and start auditing a variety of industries. It’s kinda unpredictable with the new administration."
Could a company re-hire its former DACA worker as a contractor?
Borovska said if DACA is scrapped, many Dreamers will leave their traditional jobs and form their own businesses to work as independent contractors.
Independent contractors can operate in the U.S. without revealing their immigration status or completing an I-9 form. Many unauthorized workers in the U.S. support themselves this way already.
However, it would not be wise for a former DACA recipient to contract with a former employer, Borovska said.
"The regulations prohibit employers from having contractors or subcontractors that they know are not work authorized," she said. "So if the employers have that specific knowledge that this person is no longer work authorized, it would not be lawful for them to continue to employ them, even as a contractor."
Got more questions? Leave them in the comments section, and we'll try to answer them.