What Employers Can Do For DACA Employees

Today was the last day that young undocumented immigrants with DACA (Deferred Action for Childhood Arrivals) permits expiring before March 5, 2018 could submit a renewal application granting them a two-year extension under the program.

People whose DACA renewal applications were still pending as of September 5th will still have their applications processed. But for all other current or former DACA recipients — those with permits expiring after March 5th, or those whose DACA approvals have already lapsed — their permits will no longer be eligible for renewal, meaning they will be undocumented after their current paperwork expires.

According to official data, only 154,234 individuals out of the nearly 800,000 people who became eligible for work permits and were protected from deportation under DACA qualify for the extension that ends today. For everyone else, including the many people in Dreamers' families and communities who were ineligible for Deferred Action in the first place, the end of DACA will have a ripple effect that extends outward to their families, communities, and workplaces.

After Attorney General Jeff Sessions announced that DACA would be repealed last month, several companies and organizations pledged to do their part for members of their communities who would be impacted by the decision. Grassroots organization United We Dream started a fund to help pay for the cost of the $495 application fee. Brad Smith, the president and chief legal officer at Microsoft, published an open letter explaining that his company was committed to protecting Dreamers at his company, vowing to provide and pay for legal counsel to those facing deportation in the future, and stand up for them in court.

The City University of New York said it would cover the fee for CUNY Dreamers seeking to renew their DACA immigration status by today's date. (Non-CUNY students who met certain income guidelines could also have the fee waived or "secure an interest-free loan, regardless of income.") Some states and municipalities — Rhode Island and San Francisco among them — aimed to do the same for the larger population, student or otherwise.

But aside from fear of whether they can remain in the United States, a major concern for DACA-protected Dreamers is how they will work, what they will do with money they have earned, and how they might be able to continue to support family members that relied on them in some way.

A national survey of DACA recipients published earlier this year showed the myriad ways that Dreamers were financially impacted by receiving DACA: After having their DACA application approved, 54.2% got their first job, more than 68% got a better-paying job, 57.3% got a job with health insurance and other benefits, 64.5% bought their first car, and more than 70% said they were able to help their family financially by earning more money. Some bought a home, others started their own businesss, and still others opened a bank account or got their first credit card.

Much of that progress will be jeopardized, if not outright erased, by the repeal of DACA.

"The DACA-mented population has a different profile in the workplace than a lot of other undocumented people who are working. Because they are usually fluent in English, and they usually went to U.S. schools, many of them have advanced degrees and are working in professions that are more highly skilled," says Jessie Hahn, a labor and employment policy attorney at the National Immigration Law Center (NILC). "One of the questions United We Dream got from their membership when they surveyed them about their concerns to their employment ending was what do I do with my retirement account? Can I access that money? That's an indication of the kinds of jobs that these people are holding."

NILC published a thorough primer explaining the answer to that and other questions: Yes, DACA recipients will most likely have their employment terminated when their work authorization expires, but "in some situations, you may be able to negotiate with your employer to be placed on a leave of absence until you can show you are authorized to work again (in the case DACA is reactivated, a clean legislative solution is passed, or you gain work authorization some other way)."

But, "regardless of whether you are an employee or independent contractor, individuals are not permitted to work in the United States without work authorization." Additionally, workers who are laid off are "generally" entitled to be paid out for unused vacation and sick leave, but the applicability of that varies by state. People who lose their jobs can request the funds in their retirement accounts. However, withdrawing money from those accounts in cash will likely result in significant fees and penalties for DACA workers, who are between the ages of 16 to 35 — decades younger than the age needed to do so free and clear (59.5).

Dreamers will not be eligible for unemployment benefits. "To be eligible for unemployment benefits," NILC explains, "a person must be ready, willing and able to work. If you are not authorized to work, then you cannot meet the requirement of being 'able to work.'"

Scott Bettridge, the Chair of the Immigration Practice at law firm Cozen O'Connor, says the same fate applies to members of the military. He has found that a very small population of DACA-approved individuals currently serves, but "small population or large, if their work authorization is expired, they're going to be forced to leave the military, absent any protected status."

"Once the individual cannot provide ongoing proof of employment authorization, the company at some point is going to have to terminate them," Bettridge says. "Once they're terminated and are taken off the payroll, their access to benefits is going to dissipate." Of note: Once Dreamers lose their company-sponsored benefits, they will be unable to obtain federal ones.

Bettridge's primary clients include large, corporate employers, not individuals, but he says that his firm works to provide information to their clients, which they can share with their employees.

"Employers want to be cautious to not be discriminatory in any way. So, instead of just calling the six people that they know have DACA benefits, they may say, Listen, Thursday at 4 o'clock in the cafeteria, we're going to host a seminar on some updated immigration laws, and our outside counsel is going to come in and talk to you about any questions that you have. And maybe at that time say, 'Hey, what's going on with DACA? Can you explain that to us? How's it working?'"

Hahn says employers can take some steps to support DACA employees as their work authorization ends, including contributing to a legal defense fund as Microsoft has said it would, but there are other concrete measures, "like paying out severance, making sure that all of the person's accrued leave time is paid out, serving as a positive reference, providing an opportunity to be reinstated in the future if the person is able to obtain work authorization again."

In the meantime, many Dreamers whose authorization expires will likely be pushed into less-regulated jobs that impact thousands of lives, to no one's benefit.

"They are going to be forced into jobs that do not — as far as the macro-labor market — optimally take advantage of the skillsets they have, because they lack the work authorization," Hahn says. "It's a very backwards step for the labor market and for the economy to be forcing them into what is essentially off-the-book employment" — a sphere where undocumented immigrants are already fighting against massive wage theft and abuse.

Yasmine Farhang, lead immigration attorney for Make the Road New York, told WNYC that "the critical time to fight is after the deadline" passes. She advised people who miss the deadline to seek other forms of legal status or immigration relief, some of which may be available through citywide resources or advocacy groups like her own. On an overarching level, Hahn says the only good alternative is "for Congress to step in and fix this problem."

"We need the DREAM Act, and I think people have been very clear in saying it needs to just be a clean DREAM Act to resolve this issue, because the minute they start to make it a negotiation and use the Dreamers as a bargaining chip, it's over," she continued. "It's not going to work, and the Dreamers themselves have been pretty clear that they're not willing to trade more enforcement against their parents and family members in exchange for them getting status."

In many ways, Dreamers and their families will now be moving back to the way life was in 2012 before President Obama initiated the executive order implementing DACA. In other ways, having briefly been able to come out of the shadows, they are facing much more of the unknown.