The Department of Justice (DOJ) released a reminder for Deferred Action for Childhood Arrivals (DACA) recipients and employers on July 21, 2021. The reminder notes that on July 16, 2021, a federal court found DACA unlawful, which means that the government cannot grant new DACA applications. But existing DACA recipients are allowed to retain their grant of DACA and apply for renewal, DOJ noted. “The district court ruling does not affect ICE’s [U.S. Immigration and Customs Enforcement] existing enforcement guidelines. The ruling made clear that it did not ‘require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.’ In light of the court decision, DOJ said, “we are issuing these reminders about employment discrimination and immigrant employee rights.”

The reminders include these and other points:

  • DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.
  • For the time being, workers who already have DACA can continue to renew their DACA EADs.
  • USCIS will provide additional guidance for DACA requestors and recipients in the coming days.
  • DACA recipients are not required to tell employers they have DACA.
  • Employers are not expected to know which employees, if any, have DACA, and the court’s decision does not require employers to review Forms I-9, reverify employment authorization, or take any action at all.
  • Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.
  • When hiring a new employee, employers are required to verify the employee’s identity and authorization to work, not their immigration status. 
  • The court decision does not require employers to review or audit their Forms I-9. If an employer decides to review its Forms I-9, it should do so in a non-discriminatory way.

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