On Aug. 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it will begin accepting applications for Deferred Action for Childhood Arrivals (DACA). The DACA program allows certain undocumented immigrants who came into the U.S. before age sixteen to gain temporary relief from deportation and obtain work authorization. While DHS has confirmed that applicants for the program will not face adverse action for coming forward, officials have not provided the same assurances for employers who may be asked to provide documentation for existing workers. The program is expected to benefit as many as 1.76 million unauthorized immigrants, of which 58 percent are currently working.
Individuals may be eligible to participate in the DACA program if they:
- Came to the U.S. under the age of sixteen;
- Were under age 31 and had no valid immigration status on June 15, 2012;
- Have continuously resided in the U.S. between June 15, 2007 and the present;
- Are enrolled in school on the date of the request, graduated from high school, obtained a GED, or were honorably discharged from the U.S. Armed Forces;
- Have not been convicted on a felony, a “significant” misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The program obviously presents a positive opportunity for certain individuals who are presently unauthorized to work in the U.S. and to employers seeking to legally hire new workers. But it also presents potential problems for both individuals and employers. First, the future of the program – which is not codified by legislation – is uncertain. Mitt Romney has indicated that he would rescind the program if he is elected president. Some members of Congress have also threatened action to challenge the program. If the program is rescinded or invalidated, what would become of the information provided by DACA applicants or of “Employment Authorization Documents” (EADs) obtained by successful applicants is unclear.
Moreover, the program as it stands raises concerns for employers currently employing individuals who apply for an EAD through DACA. DHS is expected to encourage applicants to provide certain types of documentation, including information that may be obtained from the worker’s current employer. But, if an employee tells his employer that he is applying for the program, he is effectively telling his employer that he is not currently authorized to work in the U.S., was not legally employable on the date of hire, and may have provided fake documents for the purposes of completing the I-9 form. Even if the employee doesn’t inform his employer about his application to DACA during the application process but comes forward with an EAD or new Social Security Number later, the validity of the I-9 is called into question.
This could create problems in a government I-9 audit. It could potentially also lead to employer liability for knowingly employing someone who was not – prior to obtaining an EAD or, if the DACA program is terminated, perhaps even after obtaining an EAD – authorized to work. It could also mean that the employee violated company “honesty” policies at the time of hire.
An employer that obtains knowledge or constructive knowledge that an employee is unauthorized is required under current law to terminate the employee. And an employer with an “honesty” policy is generally legally entitled to terminate an employee for violating that policy, so long as the policy is consistently enforced. However, terminating an employee under the above-described circumstances could bring about charges of unlawful discrimination.
As a result, employers are advised to proceed with caution when situations such as these arise. With a termination, employers should maintain all documentation relating to the termination, including a copy of any policy violated. When retaining an employee who is believed to have previously presented false documentation, the employer should keep both the old and the new paperwork in the employee’s file. A note explaining the circumstances and the basis for believing that the worker was authorized at the time of hire should also be included in the file and should remain strictly confidential. Employers facing these situations are best advised to consult an employment immigration attorney licensed in the state before taking any action.
The U.S. Citizenship and Immigration Services of DHS has posted frequently asked questions about DACA on its website. For additional information on immigration compliance for employers, visit AGC’s Labor & HR Topical Resources webpage. The primary category is “Other Legal Issues” and the secondary category is “Immigration and Employment Eligibility.”