Recent delays in DACA renewal processing have created significant uncertainty for employers and employees alike, leaving some valued workers temporarily without valid work authorization through no fault of their own. This article outlines the compliance risks employers face when DACA work authorization lapses and identifies practical steps employers may consider to preserve workforce continuity while remaining compliant with federal and state law.

DACA Overview and Current Renewal Timeline

In 2012, the Secretary of Homeland Security issued a memorandum establishing Deferred Action for Childhood Arrivals (DACA), an executive action that allows certain undocumented individuals who came to the United States as minors to receive temporary protection from removal.¹ DACA also authorizes recipients to work in the United States for renewable two-year periods. Over half a million individuals currently hold DACA status, and more than ninety percent of DACA recipients over the age of twenty-five are in the workforce. The U.S. Citizenship and Immigration Services (USCIS) recommends that recipients submit renewal requests 120 to 150 days before expiration. Before 2025, USCIS processed DACA renewals within a matter of weeks. However, between 2025 and 2026, median processing times increased by more than 400 percent. This increased processing time has created a legal quagmire that impacts employers’ bottom line.

The current renewal processing delays have placed DACA recipients in an impossible position. If recipients file within USCIS’s recommended renewal window, their deferred action and work authorization may lapse before USCIS approves the application. However, if they file before the 150-day mark, USCIS may still reject the renewal because it is not within the 120-minimum day window to file. 

DACA renewal delays have led many employers to discharge employees with expired work permits in order to maintain I-9 compliance, which impacts daily operations and workforce morale. When DACA status and work authorization are delayed in the renewal process, employees lose employment and income through no fault of their own. Employers, in turn, lose experienced workers, which can disrupt operations, reduce productivity, and place additional strain on remaining staff. While employers should maintain compliance with federal and state laws, they can still take affirmative steps to avoid losing experienced and valuable employees.

Compliance Risks for Employers Navigating DACA Renewal Delays

Employers that knowingly continue to employ individuals without valid work authorization may face civil and criminal liability. Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), employers may not continue to employ a person knowing that the person has become unauthorized to work. 8 U.S.C. § 1324(a)(2). Once an employer knows that a current employee has become unauthorized to work, they must act promptly to address the lapse in work authorization.² Although the Ninth Circuit has recognized that an extremely brief delay in discharging an unauthorized worker may not constitute a violation, a delay of as little as two weeks can constitute a violation of the IRCA.³ Employers therefore should proactively monitor work authorization and respond promptly when an employee’s work authorization expires.

While employers should take proactive steps to monitor and track employees’ authorization documents by regularly examining Form I-9s and calendaring expiration dates, employers must also comply with applicable anti-discrimination laws, which recognize citizenship status as a protected category.⁴ For instance, because a valid work permit is sufficient to establish employment eligibility, employers should not ask employees whether they are DACA recipients specifically. An employer should also not preemptively request additional employment eligibility verification documents or citizenship documents if the employee has already successfully completed an I-9 verification. However, an employer may request an employee’s work authorization document when it is about to expire or has already expired. Finally, while employers should act promptly to discharge workers when their authorization expires, they may not preemptively terminate an employee beforehand.

Employer Best Practices for Navigating DACA Renewal Delays

Both employers and employees may feel powerless in the current DACA renewal landscape. Although DACA renewal delays can leave both employers and employees with limited options, employers may take practical steps to reduce disruption while maintaining compliance. The following measures may help employers preserve valued employment relationships, support pending renewals, and evaluate alternative immigration options when work authorization is delayed.

Unpaid Administrative Leave Following Expiration of Work Authorization

While employers may not knowingly continue to employ someone without work authorization, total separation of employment is not the only solution. Employers may place employees with expired work permits on unpaid administrative leave while the employees’ renewal application remains pending. This approach reduces the risk of liability for continuing to employ an unauthorized worker while preserving the option to onboard a valued employee once USCIS approves the renewal application.⁵ Administrative leave may also reduce the operational and financial burden of losing experienced employees who are difficult to replace, as well as protect workforce morale.

Employer-Sponsored Expedited Requests 

Employees may ask USCIS to expedite the adjudication of a pending DACA renewal application, which employers can bolster with letters of support. USCIS considers expedited requests for adjudication on a case-by-case basis, subject to its discretion and supporting documentation. Potential bases for expedited review include severe financial loss, urgent humanitarian situations, nonprofit interests, government needs, or clear agency error. In the employment context, severe financial loss will often be the most relevant basis. To support such a request, an employer may draft a letter explaining that the employee manages critical projects, systems, contracts, or client relationships, and that the employee’s inability to work would cause significant financial loss. The employer should also explain why the employee cannot be replaced or why replacing the employee would be difficult. In this way, an employer may help move the renewal along by documenting the employee’s importance to the business and the concrete harm that would result from a lapse in work authorization.

Other Employment-Based Visas

Employers may also evaluate additional remedies for highly skilled DACA employees. In appropriate circumstances, an employer can sponsor highly skilled DACA recipients for an employment-based green card. Employers may also sponsor a DACA recipient for an H-1B work visa, so long as the employee holds a U.S. bachelor’s degree and their position requires specialized knowledge. After an employee receives H-1B status, the employer may pursue permanent resident sponsorship if the employee remains eligible.

As DACA renewal delays continue, employers should prepare for potential lapses in work authorization among affected employees. A proactive, individualized approach can help employers maintain immigration compliance while minimizing unnecessary operational disruption. Employers facing these issues should consult counsel to assess available options and ensure their response aligns with federal and state law while maintaining their bottom line.

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¹ In addition to being below the age of sixteen upon entry into the United States, applicants must also meet certain residential and educational requirements. DACA recipients may not have any felonies or significant misdemeanors or pose a threat to national security or public safety.

² Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 148 (2002).

³ Mester Mfg. Co. v. I.N.S., 879 F.2d 561, 567–68 (9th Cir. 1989).

⁴ Several federal laws, such as the Immigration and Nationality Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, protect employees from employment discrimination based on factors such as race, national origin, citizenship, and immigration status. In addition, the California Fair Employment and Housing Act recognizes citizenship status as a protected category for purposes of anti-discrimination and anti-harassment law. Gov. Code, § 12940(a); Cal. Code Regs. tit. 2, § 11028(f)(3), (h).

⁵ Unpaid administrative leave is not considered continued employment pursuant to the IRCA, 8 U.S.C. § 1324(a)(2); Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1011 (9th Cir. 2007) (holding that an employer does not “continue to employ” an employee on unpaid administrative leave because the employer is not compensating the employee for “continuing to perform a service or labor”).

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Diana Roque of Hanson Bridgett’s 2026 2L Summer Associate program, contributed to this article.