In June 2012, President Obama announced that the federal government would not enforce the removal of young illegal immigrants if they: (a) came to the United States before they reached the age of 16; (b) are in school, have received high school diplomas, or served in the military; and (c) have not been convicted of a felony. Foreign nationals who satisfy these requirements are eligible for Deferred Action for Childhood Arrivals ("DACA"). Essentially, DACA is an act of prosecutorial discretion, where the executive branch has elected not to enforce the deportation of this group.
The creation of the class of DACA-eligible foreign nationals has raised a host of related issues. First, are DACA beneficiaries eligible for public benefits? The HHS determined on August 29, 2012, that they are not eligible to enroll in health insurance exchanges formed under the Patient Protection and Affordable Care Act ("PPACA"), receive tax credits for such coverage, join the Pre-Existing Condition Insurance Plan program, or sign up for Medicaid. According to the HHS, the executive order that established the DACA did not expand the definition of those who qualify as "lawfully present" and are thus eligible for Medicaid, the Children's Insurance Program, or other provisions of the PPACA. It is hard to square this analysis with HHS's positions in other program areas, such as the ones that allow Medicaid benefits to Persons Residing Under Color of Law (also known as "PRUCOL"). Litigation on this HHS rule can be expected.
Second, what are an employer's responsibilities if a DACA-eligible individual applies for employment or is hired? In this regard, the DHS has indicated that those individuals who receive a DACA designation are also eligible for employment authorization for the duration of the DACA designation. This means that they will receive an Employment Authorization Document ("EAD") that allows them to work for any employer and will have to complete a Form I-9 as required under the Immigration Reform and Control Act of 1986 ("IRCA").
Many other questions remain. For example, what if the employer learns that the DACA program has been discontinued while the EAD remains valid? What if the employer learns that the new employee may not have been eligible for the DACA designation in the first place? What if an existing employee asks the employer for documentation to establish eligibility under DACA and thus concedes that he or she has been working illegally? Will employers who fail to provide health insurance coverage have to pay the PPACA penalty even though these DACA employees may be ineligible for coverage under the exchanges? These and other questions will have to be addressed by employers on a consistent basis to avoid liability under either IRCA's worksite enforcement or anti-discrimination provisions. Stay tuned!