DACA Guidance for Employers – Clarification or Confusion?

USCIS provided an updated Deferred Action for Childhood Arrivals (DACA) Guidance for Employers yesterday, November 19th. While we applaud USCIS for making the effort in communicating with employers on issues related to I-9, the guidance raises a number of important questions due to its inconsistency with previously issued I-9 and E-Verify practice guidelines.

GUIDANCE FOR EMPLOYERS OF NEWLY HIRED EMPLOYEES

The guidance indicated in this section of the PDF instructs employers to follow the standard rules as applied in any ordinary case where a new employee has been hired. An employment authorization document (EAD), if presented constitutes a valid List A Document demonstrating both identity and work documentation. So far, so good, right? Sure.

GUIDANCE FOR EMPLOYERS OF EXISTING EMPLOYEES

Whether the guidance presumes the original Form I-9 was either completed, or completed correctly for the existing employee is unclear. If an employer receives updated I-9 information from an existing employee, according to the recent guidance, employers should either complete a new Form I-9 or complete Section 3 of an existing Form I-9 depending on various factors. If Section 1 information has changed in the previously completed Form I-9, such as the employee’s name, DOB, attestation or previously provided social security number, a new form I-9 should be completed. Notably, this instruction is not consistent with previous I-9 instructions that did not require an employer to complete a new I-9 if the name, birthdate, attestation or social security number had changed. (Keep in mind the social security number is optional if the employer is not enrolled in E-Verify). The guidance continues to instruct employers, if the information in Section 1 has not changed, to complete Section 3 instead. The employer should re-verify the employee’s work authorization document in Section 3.

GUIDANCE ON WHEN TO USE E-VERIFY

According to this latest guidance, when an employer is completing a new Form I-9 for a (new or existing) employee, the employer should initiate a new case in E-Verify for the same employee. While it makes sense to initiate an E-Verify case for a newly hired employee, again, the USCIS’ instruction deviates from prior guidance. Previously, USCIS guidance was such that only re-hirescompleting a new Form I-9 should be submitted to E-verify. In essence, prior guidance instructed employers that existing employees should only be verified once, at the time of initial hire (except for limited circumstances with FAR employers).

THE CONFUSION FOR EMPLOYERS

The USCIS’ latest DACA guidance appears to be creating two separate standards for “regular” employees and “DACA” employees. You can imagine the cause for concern by some employers who are careful to stay as far away as possible from claims of discrimination. It’s unclear if this guidance makes it any easier for employers to follow the law by promoting a policy that can be universally enforced amongst to its workforce.

  • In the past, a name change alone would not have warranted the requirement for a new Form I-9 to be created (let alone completion of Section 3). Updating an I-9 Form as a result of a name change was always left to the employer’s discretion.
  • USCIS refers to “existing employees” but fails to define in legal terms what constitutes an existing employee? Does an employee who was terminated for the sole purpose of being rehired count as an existing employee?
  • Running new cases for the same employees in E-Verify may potentially trigger tentative non-confirmations in the system, leading to further administrative and work delays.

Employers have expressed concerns in the past that the changing I-9 (and E-Verify) environment by way of website updates causes great concern. There is no one source of instruction for employers, particularly in cases where USCIS may make corrections or updates in the future without advance warning, or when guidance contradicts prior instructions. Yesterday’s Guidance via PDF, which omits a date, may be another symptom of DHS (and USCIS’) habit of releasing guidance to the public by way of website rather than the more traditionally required methods codified under the law, the Administrative Procedure Act of 1946. In the interest of uniformity, we hope the USCIS will consider providing a more comprehensive means of guidance that comports with past and present I-9 and E-Verify guidance.

In the meantime, we encourage employers who may be affected by DACA issues to consult with their qualified employment or immigration counsel to determine the appropriate policy for their organization.