Executive Summary
- DACA is currently active for renewals, but new applications are not being processed. The program remains legally precarious and HR should not assume it will always be available.
- DACA EADs carry category code C33. This is what to look for on the card during I-9 verification.
- There are no automatic extensions for DACA EADs. If the card expires before the renewal is approved, the employee cannot legally work.
- The USCIS approval notice is not sufficient for I-9 purposes. The employee must have the physical EAD card.
- Filing 150 days before expiration is the right approach, but processing still takes 2 to 5 months. HR needs to be tracking this, not the employee alone.
What DACA is and what HR should understand about its current status
Deferred Action for Childhood Arrivals, commonly called DACA, is a federal program that allows certain individuals who came to the United States as children to receive a renewable period of deferred action from deportation and a two-year Employment Authorization Document.
From an employment standpoint, a DACA recipient is fully authorized to work for any employer during their valid EAD period. They complete an I-9 the same way any other employee does. The complexity is not in hiring them. It is in maintaining their authorization over time.
The legal situation in 2026
DACA is currently active for renewals. USCIS is accepting and processing renewal applications. However, USCIS is not processing new, initial DACA applications - only recipients who already have DACA can renew.
The program's legal foundation remains under challenge. The Fifth Circuit Court of Appeals ruled the program unlawful but preserved it for existing recipients while litigation continues. What this means for HR: the program works today, but it is not on permanent footing. HR teams that rely on DACA as a long-term work authorization strategy for key employees should be having conversations about alternatives.
A note for employers in Texas
Texas has a specific court injunction that affects the work authorization component of DACA. If you have DACA employees based in Texas, work with an immigration advisor to verify their specific status before making any employment decisions.
Hiring a DACA employee: I-9 and what to look for
Hiring a DACA employee follows the same I-9 process as any other worker. The employee presents their EAD as a List A document, which establishes both identity and work authorization in a single document.
What to look for on the EAD card
- Category code: C33: this is the code for DACA-based work authorization. It appears in the "Category" field on the face of the card.
- Card Expires date: this is the date that drives everything. Note it carefully and record it.
- The card must be unexpired and physically present. A copy, a photo, or any kind of notice from USCIS is not a substitute for the card itself.
Do not accept any other document as proof of DACA-based work authorization. An I-797 notice, a receipt, or a printout from a USCIS case status page does not authorize employment.
Re-verification
Because DACA EADs expire, re-verification is required before or on the expiration date. Unlike a green card, which cannot be re-verified, a DACA EAD must be updated in the I-9 with a new, valid card before the old one expires. Set a reminder and do not miss it.
Why tracking matters more for DACA than almost any other status
Most employment-based visa categories have some form of automatic extension or grace period if a renewal is filed on time. DACA has neither.
DACA EADs have never been eligible for automatic extensions. If the employee's EAD expires before USCIS approves the renewal and issues a new card, their work authorization has lapsed. Full stop. The employee cannot legally work during that gap, and the employer cannot continue paying them, regardless of whether the renewal was filed on time.
This is the single most important operational risk in managing DACA employees. The renewal does not protect employment continuity on its own. Only the physical card in hand does.
The renewal timeline: when to start and what to expect
When to file
USCIS recommends filing the renewal 120 to 150 days before the EAD expiration date. That is 4 to 5 months out. Filing earlier than 150 days is not recommended. USCIS typically will not process applications filed more than 150 days in advance.
How long the renewal takes
Current processing times run 2 to 5 months, though USCIS aims to complete the majority of renewals within 120 days. Processing times vary by service center and caseload.
After USCIS approves the renewal, the physical EAD card still needs to be produced and mailed. That typically takes an additional 2 to 4 weeks after the approval date.
This means the full timeline from filing to card in hand is realistically 3 to 6 months. If the employee files at 150 days and processing runs long, the math does not always work out.
The approval notice is not enough
When USCIS approves a DACA renewal, they issue an I-797 approval notice. This notice confirms the approval but does not authorize employment. It cannot be used for I-9 re-verification. The employee still needs to wait for the physical EAD card before they can legally return to work or be verified.
This is the gap that catches HR teams off guard. There is a period, potentially weeks, where the employee has an approval notice confirming their DACA was renewed but still cannot present valid work authorization for I-9 purposes. If the old EAD has already expired by this point, the employee cannot work during that window.
What HR should do to prevent a gap
- Track the EAD expiration date for every DACA employee and set a flag at the 150-day mark
- Prompt the employee to begin the renewal process at that point. Do not wait for the employee to bring it up.
- Follow the case closely as the expiration date approaches. If the approval does not come through in time, HR and the employee both need to know early enough to plan.
- If a gap is looking likely, consult an immigration advisor before the expiration date. There are sometimes case-specific options worth exploring, but those conversations need to happen before the card expires, not after.
If the EAD lapses before the new card arrives
If the employee's EAD expires and no new card has arrived, you are in a compliance situation. The employee cannot continue working and the employer cannot continue to employ them, regardless of where the renewal stands.
What HR must do:
- Place the employee on unpaid leave immediately. Do not continue employment.
- Do not terminate the employee on the basis of their DACA status or national origin. The correct action is unpaid leave while the renewal resolves.
- Update the I-9 to reflect that verification cannot be completed.
- Resume employment and complete re-verification as soon as the new EAD card arrives.
- Document everything. The record of how you handled the gap matters for compliance purposes.
The window between EAD expiration and new card receipt is the most vulnerable moment in the DACA employment relationship. HR's job is to make sure it never arrives unannounced.
Planning beyond renewal: alternative paths for DACA employees
DACA provides work authorization in two-year increments, and the program's long-term future is not guaranteed. For DACA employees the company values and wants to retain, HR should be thinking about alternative immigration pathways now, not when the next legal challenge changes the situation.
The same alternative paths that apply to TPS holders are relevant here. H-1B is available for specialty occupation roles, though it is subject to the annual lottery. O-1 is available for employees with demonstrated extraordinary ability. An employment-based green card through PERM labor certification is the most durable long-term solution, though it is a multi-year process.
One important limitation: DACA recipients may face complications when attempting to change to a new immigration status, depending on how and when they entered the United States. This is not a reason to avoid the conversation. It is a reason to have it with an immigration advisor early. Every DACA employee's path is different and requires an individual assessment.
How WayLit helps
Managing DACA employees is not complicated when the tracking is in place. The risk is in missing a deadline or assuming the renewal process will resolve itself without attention.
WayLit's platform automatically tracks EAD expiration dates and renewal timelines for every DACA employee in your workforce. When an expiration is approaching, WayLit flags it, so HR is not relying on the employee to self-report or on a manual calendar reminder.
Our partner immigration practitioners work directly with DACA employees to get the renewal process moving at the right time and stay with the case through to card receipt. The goal is to make sure the new card arrives before the old one expires, and that there is never a gap in employment.
WayLit also works with HR leaders to identify which DACA employees are strong candidates for a longer-term immigration path, and to begin that planning while the employee still has active work authorization and the options are open.
Common questions from HR teams
Our DACA employee just received their approval notice. Can they keep working while they wait for the new card?
Only if their current EAD has not yet expired. If the existing card is still valid, the employee can continue working normally while waiting for the new card. Once the existing EAD expires, the approval notice alone does not authorize continued employment. The employee must have the physical new card before re-verification can happen.
Our DACA employee filed their renewal on time but the card is taking longer than expected. What do we do?
Place the employee on unpaid leave on the date the EAD expires if the new card has not arrived. Work with an immigration advisor to monitor the case status and understand whether expedite processing is an option. Resume employment and complete I-9 re-verification as soon as the card arrives. Do not continue employment on the basis of the pending renewal alone.
Can we sponsor our DACA employee for an H-1B or green card?
Yes, and for many DACA employees this is worth exploring seriously. Eligibility depends on the employee's role, qualifications, and immigration history. The complication specific to DACA recipients is whether they entered the US through inspection, which affects whether they can change status without leaving the country. This requires an individual assessment with an immigration advisor.
We have a DACA employee in Texas. Is their situation different?
Potentially yes. Texas has an active court injunction that specifically targets the work authorization component of DACA. If you have DACA employees based in Texas, verify their current status with an immigration advisor before relying on general DACA guidance.
Should we be talking to our DACA employees about what happens if the program ends?
Yes. DACA is not on permanent legal footing and the program could face further restrictions. The right time to have that conversation is before a court ruling forces the issue. Frame it as a forward-looking conversation about the employee's options, not a warning. Employees who know their employer is thinking about their situation are more likely to engage in the planning process early enough for it to matter.
This article is for informational purposes only and does not constitute legal advice. Immigration law is complex and the DACA situation is actively changing. Consult qualified immigration counsel before making decisions about employees on DACA or any other immigration status.
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