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5 Issues Every Employer Must Know About DACA

By now, U.S. employers have probably heard about the Deferred Action for Childhood Arrivals (DACA) process, which was announced on June 15, 2012 by U.S. Department of Homeland Security Secretary Janet Napolitano. We have actually written many updates and articles related to the substantive issues related to the DACA process on our sister blog, Case Management Guru. However, in the past three months, there has been virtually no discussion or guidance from the government (neither USCIS nor ICE) regarding what type of impact DACA may have on employers. Fortunately, this didn’t deter ImmigrationWorks USA (IW) from putting together a highly informative discussion on its potential effects on U.S. employers last Friday, September 7, 2012. The discussion was moderated by IW’s President, Tamar Jacoby and guest speakers included:

Dan Brown, Partner, Fragomen, Del Rey, Bernsen & Loewy
Leon Sequeira, Senior Counsel, Seyfarth Shaw
Greg Siskind, Founder, Siskind Susser
Anthony Weigel, Attorney, Weigel Law Office

(You may recognize some of the speakers as having blogged for us in the past.)  You can accessFriday’s recording and the complete library of past recordings online.  [The link to Friday’s recording will take a few moments to download.] Some employers may be wondering how DACA even affects them, if they “don’t hire foreign workers.” The reality is that the U.S. workforce is as diverse as ever. Unless U.S. employers have specific legal or contractual obligations permitting them to hire only U.S. citizens (or Legal Permanent Residents) for certain positions, their workforce is more likely than not comprised of foreign workers. This is what made the IW discussion that much more impactful. Below are a few highlights of the issues discussed during the roughly 65-minute recording.  We encourage our readers to listen to the recording to get a clearer picture on how their organizations should approach these issues.

1. Dealing with Employee Requests for Employment Letters for DACA

From the outset, the attorney speakers had concerns about how employers would navigate the issue of “knowingly hiring” unauthorized workers if an existing employee asks an employer to issue a letter verifying the employee’s work history with that employer.

There are many reasons why employees would seek an employment verification letter (e.g.: housing rental application, mortgage application, other loan applications, etc.) but the trickier issue is what happens if an employee actually states that the request for the letter is in support of a DACA request?  Should employers fire the employee?  Should they tell the employee in advance that the employee should not inform them as to the reason for the letter?

One of the listeners pointed out that the presumption that all DACA applicants currently working are doing so unlawfully is not correct.  Some potential DACA applicants may be working with valid USCIS authorization as a result of another form of immigration benefit.  DACA may merely be another, optional, process available to such an employee.

2. Dealing With Existing Employees Who Receive an EAD as a Result of DACA

Another issue involving “knowingly hiring” unauthorized workers occurs when an existing employee presents the employer with a new EAD card based on a grant of DACA, and informs the employer they are “now authorized to work.”

The major risk is the issue of actual knowledge. Once an existing employee informs the employer that they are not authorized to work, the employer has actual knowledge of the prior, unauthorized employment. Should employers fire that employee?  Can they fire and rehire them with the new EAD?

If the employer had previously acted reasonably in hiring that employee based on what initially appeared to be genuine identity and employment documents, what risks does an employer face for having “knowingly hired” an unauthorized worker? Did the the employer act in good faith?

What happens if the employer elects to continue employing that worker? Is a new Form I-9 needed or is a reverification enough? What should you do with the prior, completed Form I-9?

3. Dealing With New Employees Who Present an EAD as a Result of DACA

Assuming a new employee seeks employment and presents an EAD as a result of having been granted DACA, can you hire them? Should you hire them? Would it invoke issues of discriminatory hiring practices based on national origin or citizenship status if you don’t hire them?

4. Dealing with Independent Contractors with an EAD as a Result of DACA

An interesting discussion topic came up regarding independent contractors. One of the speakers astutely noted that this is where the assistance of an employment attorney, not just an immigration attorney, can be very helpful.

Does it matter if the independent contractor engaged to perform specific duties is authorized to work via an EAD that was issued as a result of a grant of DACA? The issues really revolve around whether the independent contractor truly qualifies as one or whether he/she may be construed as an employee. Employment attorneys will like review the job duties, the ability to control the work of the contractor, who supplies the materials, and much more.

5. I-9 Audit Implications for U.S. Employers

Finally, the biggest concern for many employers is how DACA applicants may (or may not) trigger ICE to conduct audits of an employer’s workplace.

If an employee has submitted documents in support of his/her DACA request that includes documentation of having been employed by a certain organization, will it trigger an I-9 audit of that organization?

So far, there has not been any policy guidance on how the information would be used against employers. Only time will tell….

The guest speakers delved into each of the issues above in great detail. This is one recording you’ll definitely want to make time to listen. We work hard to bring you the latest information on I-9 and E-Verify. Please subscribe to the I-9 and E-Verify Blog to get immediate updates.

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ImmigrationWorks USA is a national federation of employers working to advance better immigration law by linking major corporations, national trade associations and 25 state-based coalitions of small to medium-sized business owners. You can follow them on Twitter@ImmigWorksUSA and @TamarJacoby.

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