This article was originally published in Michigan Farm News in January 2015 and is republished with permission.
In late November, President Obama announced his administration’s plans to utilize executive action to reform the current immigration system. The plan did not include any specific options or reforms for agricultural workers. However, many current agricultural workers without status may benefit from the expansion of the Deferred Action for Childhood Arrivals (“DACA”) program and the initiation of the Deferred Action for Parental Accountability (“DAPA”) program. The work authorizations provided by these programs will facilitate employment with any employer so that individuals historically employed in agriculture may find employment in other industries.
Specifically, the plan expands DACA, which was first announced by President Obama in June of 2012. DACA originally offered two years of deferred action and work authorization to persons who;
- came to the U.S. before age 16
- were under 31 years old, and
- had continuously resided in the U.S. from June 15, 2007, to the present.
The planned reforms, however, significantly augment DACA’s scope and coverage; they extend the grant of deferred action and work authorization from two to three years, remove the upper age restriction, and shorten the continuous U.S. residence requirement to Jan. 1, 2010.
Under the DAPA program, parents of U.S. citizens and lawful U.S. residents may apply for and receive three years of deferred action and work authorization if they (1) have continuously resided in the U.S. since Jan. 1, 2010, and (2) meet other requirements, such as paying their taxes and passing a criminal background check. This program is anticipated to take effect May 2015 and function similarly to the existing DACA program.
While the reformed deferred action programs (DACA and DAPA) provide a three-year protection from deportation and work authorization to a significant portion of the current agricultural worker population, it is important to note that this relief is only temporary – neither program offers a path to permanent residence or citizenship.
Furthermore, the deferred action programs do not provide any type of safe-harbor for employers currently employing eligible individuals. Therefore, an employer could still violate work authorization laws by hiring an unauthorized person, even if the individual qualifies for DACA or DAPA. Workers must have a valid employment authorization – a document may be obtained through the DACA/DAPA process but will require processing time. Accordingly, employers should continue to comply with work authorization requirements and refer any employees who request assistance with deferred action to counsel or other outside resources.
The executive actions on immigration are expected to be implemented through policy memorandums and regulations, and the reformed deferred action programs could be implemented to allow applications as soon as February.