Starting August 15, 2012, eligible individuals can submit applications for “deferred action” through the “Deferred Action for Childhood Arrivals” process (“DACA”). Simply put, the DACA process is a method by which U.S. Citizenship and Immigration Services (USCIS) prioritizes its resources with respect to enforced removal (“deportation”) of undocumented individuals. The Department of Homeland Security (DHS) has identified individuals with criminal backgrounds and convictions as priority for removal. Young people, often brought to the U.S. by their parents, are considered to be low priority if they meet the DACA criteria and are eligible to apply for “deferred action”, a “deportation deferral” for two years, subject to renewal. The criteria for DACA are:
- The applicant was under the age of 31 on June 15, 2012;
- The applicant came to the U.S. before reaching his/her 16th birthday;
- The applicant has continuously resided in the U.S. since June 15, 2007, to the present;
- The applicant was physically present in the U.S. on June 15, 2012;
- The applicant entered “without inspection,” meaning not through a U.S. Port of Entry, before June 15, 2012, or his/her lawful immigration status expired as of June 15, 2012;
- The applicant is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- The applicant has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
More information can be found on the US Citizenship and Immigration Services’ website at http://www.uscis.gov/childhoodarrivals. DACA applicants can apply for work authorization at the same time. DACA job applicants may raise issue for employers:
- A new applicant may apply for a position with an “Employment Authorization Document” (EAD) from the DACA process. Whether the individual does or does not have “lawful” or “legal” status is an open question. Nonetheless, with a properly issued USCIS EAD he or she is authorized to seek and accept employment.
- A current employee may come forth with a new EAD from the DACA process, which may contain information inconsistent with the documents provided to the employer during the original I-9 process. By virtue of the requirements of DACA, the employee may not have had lawful status in the U.S. when initially hired, which suggests he or she may not have provided a genuine document when initially completing the I-9 process.
In the first scenario, the EAD issued under the DACA process is an acceptable List A document for the Form I-9. As a result, the employment process can proceed. The employer must treat that person similarly to the other work authorized applicants.
Because U.S. immigration law allows issuance of EADs to individuals in various kinds of interim or “limbo” immigration “statuses”, it is likely that employers have in the past accepted applications from individuals with varying levels of work authorization status. An individual may not technically have “legal status”, but have been given a valid EAD while waiting to sort out his/her status in the immigration court system, which can take years. The key question for the employer to ask is, whether the applicant can provide a valid List A document or a List B and List C document to demonstrate work authorization on the Form I-9. The immigration “status” of the individual is not relevant.
The second scenario is more complicated. Although an employee presenting a work permit obtained through the DACA process currently has work authorization, the employee may have misrepresented himself/herself when completing the initial I-9. The DACA applicant may now have a new social security number.
Clearly, the individual now has work authorization, and cannot be terminated on that basis alone. The employer must take into account its policies toward employees who have falsified information on the job application or were otherwise less than truthful to the company. The employer must consider these questions:
- What is the company’s written policy, if any?
- Did the company include this subject during orientation or in any materials provided at the start of the employment?
- Is there any flexibility in the written policy or documents to allow the company to enforce its policy on a case-by-case discretionary basis?
- What has been the company’s actual practice?
If there has been no policy or an inconsistent practice in the past, it would be wise to establish a policy for false statements to the employer. In addition to immigration-related issues, such a policy will allow employers to resolve misrepresentations in other areas such as prior criminal convictions, exaggeration on resumes, etc. A transparent policy on these issues is clearly a best practice. And, if the employer wants to create flexibility in how it handles these situations, a provision for “notice and cure” should be considered, so that employees may be given a chance to correct prior misrepresentations and save the company from having to terminate an otherwise valuable employee, at the employer’s discretion.
If the company historically has strictly enforced a policy calling for discharge of employees who have provided falsified information, regardless of what it is, the company may have less flexibility in accommodating an employee who comes forward with a new work permit under DACA. This predicament underscores the benefits of revising current policy materials to carve out discretion for managing DACA participants.
In creating a new policy or modifying an existing one, employers should retain the ability to exercise judgment on a case-by-case basis. Should the employee be terminated and rehired under the new and corrected information? What are the implications? These are complicated questions that should be carefully considered and are beyond the scope of this article.
Consult with your immigration and labor/employment attorney to develop such a policy or to fine-tune an existing policy. It is difficult to estimate how long it will take USCIS to process DACA applications, and issue EADs; it is likely that the DACA EADs will begin to show up in about three months.
In other words, employers have 90 days, give or take a month, to decide what to tell an employee who comes forward and says: “Sorry Boss, but I now have a real work permit.”