Companies Should Prepare for Possibility of More Than 700,000 Young Employees Losing Work Authorization

Immigration Update

Date: December 01, 2016

Through executive order in June 2012, President Obama deferred removal of and granted work authorization to more than 700,000 young adults living in America without lawful status, who are often referred to as “Dreamers.” Known as “deferred action for childhood arrivals” (DACA), the program could end (in part or in whole) shortly after President-elect Trump’s inauguration. Elimination or narrowing of the benefits provided under DACA will impact companies employing the young adults with DACA employment authorization.

Employers should consider strategies to mitigate the business interruption that could be caused by an abrupt end to DACA employment authorization. The actions that employers should undertake are:

  • Review employment records to determine the number of DACA employees currently providing services. Employees working under DACA should have provided an employment authorization document (EAD) at the time of hire. EAD cards issued to DACA workers contain the code “C33.” Employers can review all of the EAD cards within their I-9 files and determine which ones are DACA-based in order to identify the workers they may lose if the DACA initiative is cut back or eliminated. The results of the review, however, should be kept confidential to avoid the risk that managers, supervisors or peers engage in harassment against the DACA employees based on their work status or national origin.
  • Develop a response plan for the possible ways in which DACA could change (e.g., complete and immediate elimination, discontinuation of EADs in the future, continuing validity of EADs already issued but only through their expiration date, etc.).
  • Identify sources for replacement workers (e.g., develop a plan with staffing companies to immediately fill positions that could be vacated by DACA employees).
  • Consider communicating to DACA employees the response plans the company is contemplating in order to answer questions and have a mutual understanding of the potential consequences.

Please contact our immigration attorneys to prepare for the possible changes to the DACA program. Our immigration attorneys will collaborate with our Labor & Employment attorneys to ensure that actions taken to prepare for DACA changes do not create an unnecessary risk of national origin discrimination or harassment claims.

Sarah C. Flannery

Staci M. Jenkins


This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.