Employers Proceed With Caution In Spite of USCIS DACA Advice?

On September 11, 2012, I wrote about an interesting non-development in the immigration world: the absence of employer guidance from USCIS regarding the Deferred Action for Childhood Arrivals (DACA) process. In the article, 5 Issues Every Employer Must Know About DACA, I highlighted a fairly substantive recording offered by ImmigrationWorks USA on September 7, 2012 that addressed employer concerns about the DACA process.

Through much of the hype about DACA, we’ve yet to read or hear specific guidance from USCIS on the impact of an employer’s role in employing an individual unauthorized to work, in the context of DACA. Three days later, I was proven wrong. [I can’t help but feel that the government was reading our blog!] On September 14, 2012, USCIS released the following statement on itsDACA FAQ page.

New – Q4. If I provide my employee with information regarding his or her employment to support a request for consideration of deferred action for childhood arrivals, will that information be used for immigration enforcement purposes against me and/or my company? A4. You may, as you determine appropriate, provide individuals requesting deferred action for childhood arrivals with documentation which verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes pursuant to INA section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses.

The guidance seemed to raise more questions than it answered so I polled a couple of experts to get their interpretations of this guidance.

INTERPLAY BETWEEN AGENCIES

The guidance reads fairly innocuously but given that ICE and USCIS are completely separate agencies, how closely is ICE bound to the guidance USCIS issued? (See the org chart below or click here for a detailed chart.)

 

I asked veteran I-9 Expert Wendy Padilla-Madden, Counsel at Balch & Bingham, LLP of Birmingham, Alabama, her interpretation of the inter-agency relationship. “I do not believe ICE would be bound by it, although they are sister agencies. However, if they do not get the information from USCIS they would not have any actionable data to act on.” That’s a good point! Aside from random audits, ICE investigates reasonable complaints if there were enough evidence to support it.

Christian Zeller, Partner at Maney Gordon, P.A. in Tampa, Florida, would advise even more caution in how employers proceed. “I am not persuaded by USCIS’ guidance and will not tell an employer client that the DACA prosecutorial discretion extends to the employer’s employment eligibility verification obligations.”

For the past few years, ICE has reaffirmed the onus is on the employer to be in compliance. This means obeying all the laws outlined in the Immigration and Nationality Act, along with the various related laws. The fact that the September 14th FAQ reserves action when “there is evidence of egregious violations of criminal statutes or widespread abuses” indicates ICE is not ready to sit by the sidelines (and neither is USCIS).

CONSTRUCTIVE AND ACTUAL KNOWLEDGE

There is also the issue of constructive and actual knowledge that an existing employee is not authorized to work in the U.S. In light of DACA, where does this leave the employer? Is actual or constructive knowledge automatically imputed to the employer?

On one hand, Mr. Zeller says yes. “Any employer faced with a DACA employment letter request will be vested with actual knowledge regarding this particular employee, and possibly constructive knowledge regarding other employees.” Maybe it’s better for an employer to just not ask why an employment verification letter is being requested.

On the other hand, Ms. Padilla-Madden says maybe. “Once an employee indicates he/she is a DACA candidate, the employer has at a minimum constructive knowledge that the employee lacks work authorization.” Termination may be inevitable in order to protect the employer.

On the issue of termination, Mr. Zeller agrees. “An employer finding himself/herself in such an immigration violation quandary must take corrective action immediately to (1) cure the violation and (2) facilitate the running of the statute.”

THE TAKEAWAY?

For many of our readers, relying on guidance issued by the government on a webpage can be tenuous. Sometimes, you’ll return to the same webpage to find out the information previously relied upon has been removed, or revised entirely, or the webpage has been deleted altogether. What then?

The best advice you can take is to consult with knowledgeable counsel who can assess your specific situation and help create an action plan. At minimum, Ms. Padilla-Madden cautions, employers must “be consistent in how they treat all employees and how they apply all policies related to employment verification.”

Mr. Zeller, whose immigration practice also includes removal defense and preparation of DACA requests on behalf of individuals, recommends that DACA applicants find other means of documenting their cases. In fact, he “advises individuals against providing employment verification as documentation. There are many ways to find alternate documents.” You can read more on our sister blog, Case Management Guru, about alternate DACA documentation.

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