United States – Impact on Employers of Government’s Ending of DACA
United States – Impact on Employers of Government’s
This report covers the impact on U.S. employers of rescinding of the DACA program and the end of employment authorization for beneficiaries of that program.
On September 5, 2017, U.S. Attorney General Jeffrey Sessions stated that the implementation of the DACA1 program by the previous administration had been an unconstitutional use of executive action.2 The Attorney General said that the U.S. Department of Justice could not successfully defend the DACA program after a group of state attorneys general threatened to sue the Trump administration if it did not terminate the program.
Unless the U.S. Congress takes action within the next six months, the policy announced on September 5 by the U.S. administration to rescind the DACA program will effectively end employment authorization for beneficiaries of the DACA program.
It is important to note that DACA beneficiaries who are employed and holding employment authorization document (EAD) cards expiring prior to March 5, 2018, remain eligible to file EAD renewal applications, but the renewal application must be received by U.S. Citizenship and Immigration Services (USCIS) on or before October 5, 2017.
WHY THIS MATTERS
An estimated 800,000 individuals are currently enrolled in the DACA program, with estimates of approximately 75 percent of these individuals currently employed. If Congress does not pass legislation to replace the DACA program, employers need to prepare for the likely loss of valued employees via termination.
How the DACA Phase-Out Works
Employees who are DACA beneficiaries remain work authorized throughout the validity period of their employment authorization. Employers should rely upon their record of Form I-9 expiration dates to determine the expiration of workers’ employment authorization. Under the phase-out, no new DACA applications will be accepted as of September 5, 2017 (with limited case-by-case exceptions, dependent on officer discretion). However, DACA employees who hold employment authorization document (EAD) cards expiring prior to March 5, 2018, remain eligible to file EAD renewal applications, but the renewal application must be received by U.S. Citizenship and Immigration Services (USCIS) on or before October 5, 2017.
- Employers should review their employment authorization records to determine whether they have any employees who are employed under DACA, and whose EADs (DACA Category Code C33) expire before March 5, 2018, to help ensure timely renewal filing on or before October 5, 2017.
- Employers must be mindful not to treat DACA beneficiaries’ employment differently than other employees. Employers take a risk of being found to have discriminated against a DACA beneficiary who is terminated (based on the administration’s decision to terminate the DACA program) while he or she continues to possess employment authorization.
KPMG Law LLP will continue to provide updates regarding the impact of this requirement as and when they become available.
1 DACA stands for “Deferred Action for Childhood Arrivals.” For more on DACA, click here.
2 To read Attorney General Sessions’ September 5 remarks on DACA, click here.
For additional information or assistance, please contact your local GMS or People Services professional* or the following professional with the KPMG
International member firm in Canada:
U.S. Immigration Practice Leader
KPMG Law LLP – Tax + Immigration, Canada
Tel. +1-416-943-0288 x266
* Please note that KPMG LLP (U.S.) does not provide any immigration services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG
International member firm in Canada.
We respectfully acknowledge that KPMG offices across Turtle Island (North America) are located on the traditional, treaty, and unceded territories of First Nations, Inuit and Métis peoples.
© 2023 KPMG LLP, an Ontario limited liability partnership and a member firm of the KPMG global organization of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee. All rights reserved.
For more detail about the structure of the KPMG global organization please visit https://kpmg.com/governance.
GMS Flash Alert is a Global Mobility Services publication of the KPMG LLP Washington National Tax practice. The KPMG name and logo are trademarks used under license by the independent member firms of the KPMG global organization. KPMG International Limited is a private English company limited by guarantee and does not provide services to clients. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.
Connect with us
- Find office locations kpmg.findOfficeLocations
- Social media @ KPMG kpmg.socialMedia
Stay up to date with what matters to you
Gain access to personalized content based on your interests by signing up today