The expansion of deferred action benefits provides a welcome and long-overdue reprieve for approximately five million undocumented immigrants who live in fear of deportation and cannot legally work in the United States. However, the introduction of the Deferred Action for Childhood Arrivals (DACA) program in June 2012, as well as the recent extension of the same or similar benefits to older arrivals and the parents of U.S. citizens and Lawful Permanent Residents, highlight the challenges faced by employers who must contend with the impact of the new executive actions while also adhering to often contrary legal obligations. A summary of key concerns and recommendations follows below:

  1. An employee’s request for employment verification documents in connection with a deferred action application provides an employer with actual or constructive knowledge that the employee may lack U.S. work authorization. Since current law prohibits employers from knowingly hiring or continuing to employ foreign nationals without U.S. employment authorization, employers may be required to terminate such individuals in order to avoid incurring civil and/or criminal penalties. To ensure that employers can provide employment verification records without violating the law or suffering unexpected workforce losses, the “knowledge” that an employee is eligible for deferred action should not be construed as sufficient to trigger the statutory prohibition on employing unauthorized workers.
  2. Under current law, an employer must take reasonable steps to ensure that an employee is authorized to work in the United States. Thus, when an employer receives information leading a reasonable person to believe that an employee may not have valid U.S. work authorization, the employer must take reasonable steps to investigate discrepancies in the individual’s employment verification record. In the context of deferred action, employers should be permitted to request new or different evidence of U.S. work authorization from deferred action-eligible employees and to terminate such individuals if they are unable to present such evidence, and if their previously submitted records appear facially suspect or related to a third party. Specifically, employers must be permitted to undertake this process without triggering the anti-discrimination provision of the Immigration and Nationality Act, unless there is additional evidence of prohibited discriminatory intent. Finally, in order to develop legally compliant workforce policies, employers need consistent agency guidance regarding the applicability of citizenship status discrimination to deferred action beneficiaries.
  3. Although agency guidance indicates that employers may retain workers who previously presented facially invalid or third-party documents but currently have evidence of valid U.S. work authorization, an employer’s decision to not terminate deferred action beneficiaries in these circumstances may trigger the perception of discrimination if the employer’s internal honesty policy dictates that employees who lie or falsify documents during the hiring process should be terminated and if the employer has terminated individuals for such offenses in the past. Due to the fact-specific nature of such cases, enforcement agencies should refrain from investigating employers’ enforcement of internal honesty policies unless there is a clear suspicion of discriminatory intent based on a protected ground.
  4. Although the information provided by deferred action applicants may not be shared with law enforcement for purposes of removal, there is no indication that the employer information included in deferred action applications is equally secure from agency scrutiny. Accordingly, an employer’s submission of employment verification documents in deferred action cases should not itself serve as the basis for ICE or DOJ enforcement actions and USCIS should not share such employers’ information with ICE or DOJ unless there is a compelling and clearly articulated reason to do so.
  5. In addition to the areas discussed above, the implementation of deferred action also triggers other important employer concerns, including debarment, liability under felony harboring statutes, and issues related to the employment of contractors, subcontractors, and independent contractors.

While it is hoped that upcoming agency guidance will clarify the apparent inconsistencies between deferred action outcomes and existing law, employers are advised to consult with their immigration counsel when encountering deferred action scenarios, and to refrain from taking premature adverse action against affected employees. Furthermore, although agency guidance conforming to the recommendations above would be welcome, employers should continue to diligently and reasonably adhere to all current statutes, regulations and policy directives until clarifying guidance is issued.