What Does DACA Mean to Employers?

By Agnna Varinia Guzman, Associate at WHGC
January 30, 2013

A copy of this article was recently published in the 2013 February-March Issue of Today's General Counsel Magazine.

With the advent of the Deferred Action for Childhood Arrivals (DACA) initiative, employers will encounter a segment of the U.S. workforce that may pose unique challenges and opportunities in its hiring and employment. Human resources personnel and in-house counsel may be required to resolve some challenges while considering the impact DACA may have on their companies. Although little guidance on DACA has been provided to employers by the U.S. Department of Homeland Security (DHS), these challenges can be mitigated through a uniform company policy, due diligence and with the advice of immigration counsel. Ultimately, DACA can have a great impact on employers through a multi-lingual and talented hiring pool of over 1.2 million candidates.

WHAT IS DACA?

The DACA initiative is a temporary solution for undocumented immigrants, specifically adults and children who are 15 to 30 years old with future applicants that are now 5 to 14 years old. These undocumented immigrants were brought to the U.S. as children and have been educated in the American academic system.

DACA recipients receive deferred action, which is a determination by the U.S. government to defer removal action on an individual on the basis of executive prosecutorial discretion. While deferred action only provides temporary relief from immigration enforcement, the DACA initiative does not grant any legal status and may be revoked by the DHS at any time. However, recipients of deferred action are now authorized by the DHS to be present in the U.S. and are considered to be lawfully present during the period of deferred action is in effect. This is a change in immigration policy by the DHS as of January 18, 2013. Prior to that time, DACA recipients were considered unlawfully present. Now, employers have the assurance of knowing that DACA recipients who are employees are lawfully present in the U.S. Obtaining lawful presence is distinctly separate from being granted work authorization.

DACA recipients may be granted open-market work authorization with any U.S. employer through an Employment Authorization Document (EAD) Card for an initial period of two years. Renewals of the EAD Card are available in two-year increments as long as the DACA recipient remains eligible under the DACA initiative. This will provide employers the opportunity to retain DACA recipients on a long-term basis. DACA recipients will be issued a valid social security number and may qualify for advance parole for overseas travel and an authorized driver's license, depending upon the state.

HIRING NEW DACA EMPLOYEES

Two key issues emerge when an employer hires a DACA recipient: I-9 verification and the anti-discrimination provisions under immigration law. Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), completion of a Form I-9 is required for all employees hired after November 6, 1986. Employers are responsible for conducting I-9 verification and for ensuring the Form I-9 is completed by the employee's third day of employment.

According to guidance by the U.S. Citizenship and Immigration Services (USCIS), an unexpired EAD Card issued to a DACA recipient is sufficient to demonstrate both employment eligibility and identity and is considered a "List A" document for the Form I-9. The EAD Card must reasonably appear to be genuine by the employer and will have a category code of C-33. Upon presentation of an EAD Card by a DACA recipient, an employer may not request additional proof that the employee is authorized to work.

In the hiring context, employers need to be mindful that most of IRCA's anti-discrimination provisions apply to job applicants who are DACA recipients. The Office of Special Counsel of the U.S. Department of Justice issued guidance that DACA recipients, by virtue of having employment authorization, are protected from national origin discrimination, document abuse, and retaliation for exercising their rights under the anti-discrimination provisions. However, they are not protected from citizenship status discrimination because they do not have citizenship status that falls within the definition of a protected individual.

In response to this guidance, employers should ensure that their employment discrimination policies are updated to reflect the citizenship status exception for DACA recipients. Moreover, employers can mitigate liability by ensuring that job applicants who are DACA recipients are not subjected to unfair documentary practices in the employment eligibility verification process. Communicating and enforcing a uniform company policy would help eliminate any potential employer sanctions (civil and criminal penalties and fees).

DACA FOR EXISTING EMPLOYEES

Employers may need to address certain issues when their employees are DACA recipients. Due diligence in the area of I-9 verification and understanding of when actual or constructive knowledge may be triggered could be vital to resolving these issues.

Form I-9 Compliance

The latest guidance from the USCIS requires greater due diligence among employers in the realm of I-9 compliance for existing employees. When a DACA recipient who is an existing employee presents an unexpired EAD Card, the employer must decide whether to complete Section 3 of the existing Form I-9 for the employee or a completely new Form I-9.

If the employee's name, date of birth, citizenship attestation or social security number in Section 1 of the existing Form I-9 has changed, then the employer should complete a new Form I-9 with the original hire date in Section 2 and attach the new Form I-9 to the existing Form I-9. Alternatively, if no biographic information has changed in Section 1 of the existing Form I-9 for the employee at the time the EAD Card is presented, then the employer need only conduct re-verification in Section 3 of the existing Form I-9.

This new guidance contradicts long-standing practice of I-9 verification in which a change in name, date of birth, citizenship attestation or social security number does not require re-verification in Section 3 of an existing Form I-9 or completion of a new Form I-9. Since this new policy applies only to DACA recipients, it behooves employers to conduct due diligence by properly identifying an EAD Card issued through the DACA initiative and by training its I-9 preparers to recognize the distinction between completion of Section 3 of an existing Form I-9 or a new Form I-9.

Actual & Constructive Knowledge

Immigration regulations define actual and constructive knowledge with the latter being "knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition." This standard is applicable to the hiring and continued employment of DACA recipients and requires employers to take action to avoid unauthorized employment when facts and circumstances become known to the employer about an existing employee.

An existing employee may decide to apply for DACA and request employment verification from the employer to establish eligibility. The employer may have gained sufficient actual or constructive knowledge of an employee's possible lack of employment authorization. This could potentially cause the company to be subject to employer sanctions for the knowing hiring or continued employment of an unauthorized worker. The employer should notify immigration counsel and follow reasonable measures based on the attorney's advice.

Moreover, employers should refrain from assisting a current employee with his DACA application until an immigration attorney has been consulted about the legal ramifications. Assisting DACA applicants may implicate civil liability on an employer for actual or constructive knowledge of an employee's lack of authorized employment.

Furthermore, if an existing employee is granted deferred action under DACA and the employer becomes aware of such a fact, the employer should speak with immigration counsel in order to determine if there is any potential exposure for the past hiring and continued employment of a worker who may not have had valid employment authorization.

In all of these scenarios, employers should refrain from any adverse employment action against the employee prior to seeking immigration advice and following a uniform company policy that encompasses the proper and non-discriminatory handling of reasonable measures and actions. An immigration attorney can help in drafting such a policy and in advising on the consequences of unauthorized employment.

DACA INFORMATION SHARING POLICY

The confidentiality provisions of the DACA initiative allow USCIS to share information from a DACA application for purposes other than removal with national security and law enforcement agencies, including U.S. Immigration and Customs Enforcement (ICE). These other purposes include assistance with a DACA application, identification or prevention of fraudulent claims, national security, or for the investigation or prosecution of a criminal offense.

This information sharing policy may affect businesses in the context of employment verification. USCIS has emphasized that documentation verifying a DACA applicant's employment will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations of criminal statutes or widespread abuses. DHS has also stated that it seeks to focus its enforcement on public safety threats and that it would investigate the existence of a widespread pattern and practice of unlawful hiring or abusive employers who are violating other criminal laws.

A tricky dilemma has now arisen for employers in the DACA context since employment verification is a standard business practice. Employers may resist issuing employment verification letters or other such documentation for fear of civil or criminal prosecution. However, a request for employment verification without actual or constructive knowledge of incriminating information does not necessarily constitute liability. Much depends on what reason or information is shared by an employee when making a request for an employment verification letter or documentation. To counter this uncertainty, employers are encouraged to institute an employee policy on employment verification that clearly communicates that no reason is required from the employee when making such a request. In any event, it becomes prudent for an employer to consult with an immigration attorney prior to providing a DACA applicant with employment verification.

Despite insufficient guidance from DHS, employers can work in partnership with immigration attorneys to address hiring and employment issues related to DACA job applicants and employees. By doing so, employers will prosper from an educated and motivated workforce that stands to benefit companies in the years to come.


[Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012.]

[U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals, Guidance for Employers, AILA InfoNet Doc. No. 12111944.]

[U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals Process, AILA InfoNet Doc. No. 12080365.]

[U.S. Citizenship and Immigration Services, Frequently Asked Questions, FAQs Updated January 18, 2013, AILA InfoNet Doc. No. 12080365.]

[Seema Nanda, Deputy Special Counsel, U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices - NYA, AILA InfoNet Doc. No. 12100222.]

[Social Security Administration, Social Security Number - Deferred Action for Childhood Arrivals, AILA InfoNet Doc. No. 12091248.]

[American Immigration Lawyers Association, AILA Verification and Documentation Liaison Committee, Practice Advisory: Counseling Employers on DACA Issues (updated September 21, 2012), AILA InfoNet Doc. No. 12090749.]

[Legal Action Center Practice Advisory, Deferred Action for Childhood Arrivals (October 25, 2012).]

[State Driver's License Requirements, AILA InfoNet Doc. No. 12090547.]

[Immigration Policy Center, Deferred Action for Childhood Arrivals: A Q & A Guide (Updated), August 13, 2012.]

[Migration Policy Institute, As Many as 1.76 Million Unauthorized Immigrant Youth Could Gain Relief from Deportation under Deferred Action for Childhood Arrivals Initiative, MPI Updates Estimates as DHS Offers More Details on Eligibility Criteria, August 7, 2012.]