In a September letter, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) confirmed that beneficiaries of the new DACA (Deferred Action for Childhood Arrivals) program will be treated no differently from other employees when it comes to completing the Form I-9.
While employers may not specifically request a particular document for I-9 purposes, DACA beneficiaries will generally only be able to present an Employment Authorization Card (I-766) as a List A document. This means that DACA beneficiaries must wait until the Employment Authorization Card has been received in order to be eligible for employment. The OSC also indicated that DACA beneficiaries who hold valid EAD cards should not face issues when their employers submit E-Verify queries to confirm their employment eligibility.
Additionally, the OSC indicated that employers may refuse to hire DACA beneficiaries on the basis that the DACA-based employment authorization is temporary; such refusal would not constitute discrimination, as DACA beneficiaries are not protected individuals under the relevant federal law. However, the OSC warned that employers must not discriminate based on national origin, stating that “employers may not use the “temporary nature” of an individual’s employment authorization as a pretext for discrimination on the basis of national origin.” The OSC also reminded employers that “employers should ensure that beneficiaries of the DACA program are not subjected to unfair documentary practices in the employment eligibility verification and reverification process.”