What if the company doesn't want to lose the worker? The legal department can consider an alternative possibility: Terminate the employee and rehire him or her. This is acceptable as long as the company does it uniformly and this decision does not represent disparate treatment to the detriment of others terminated under the honesty policy for other types of violations. In the rehire scenario, the employer would have to complete a new I-9 and use the DACA employment authorization card.
Another potential encounter would involve a new hire who presents work authorization obtained under DACA that is valid for only two years of employment. DACA is an executive branch creation, which means that the current administration must order renewal of the benefit every two years. Some employers prefer not to employ someone who may not be eligible for employment beyond the two year period without the employer's sponsorship for some other form of work authorization.
Employers are permitted to ask job applicants whether, now or in the future, they will require sponsorship for an immigration benefit. Employers can take into account the temporary nature of the work authorization when deciding among candidates as long as they do not use the temporary nature of the individual's work authorization as a pretext for discrimination on the basis of national origin.
With an estimated 940,000 eligible to apply for this authorization, GCs should be prepared to address one or more of the possible scenarios in their companies' workforces.
Leigh Ganchan is a shareholder in Ogletree Deakins in Houston.
This article originally appeared in Texas Lawyer.