United States – Impact on Employers of Government’s | KPMG | GLOBAL

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.

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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.

KPMG NOTE

  • 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. 

FOOTNOTES

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.

CONTACTS

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:

 

Charlene Quincey

U.S. Immigration Practice Leader

KPMG Law LLP – Tax + Immigration, Canada

Tel. +1-416-943-0288 x266

cquincey@kpmglaw.ca 

 

*  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.

© 2017 KPMG LLP, a Canada limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in 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.

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