Top Three Strategies for Managing I-9 Obligations in the Wake of DACA Termination

One of the biggest mistakes in the HR compliance world is thinking that the I-9 is always just a “one and done” type of form that can be safely stored (and forgotten) once your new hire has been brought onboard. The reality is much more nuanced since employers under the law must reverify certain employees who have temporary work authorization in the US.

Reverification has been on the minds of a lot of employers these days, particularly in the light of the elimination of the Deferred Action for Childhood Arrivals (DACA) program. Implemented in 2012 by President Obama, DACA provides both temporary protection from deportation and work authorization to certain undocumented youth who came to this country when they were children. DACA beneficiaries (of which there are estimated to be almost 800,000) were provided with an employment authorization document (EAD), which is an acceptable List A document for I-9 purposes and subject to reverification.

The DACA program has been on the chopping block ever since President Trump took office, and its termination (announced earlier last month) is being implemented in a phased approach. The DHS stopped accepting initial applications for DACA as of September 5, 2017 and will only consider renewals which were received by the agency on or before October 5, 2017 for individuals whose benefits will expire between September 5, 2017 and March 5, 2018.

With the DACA program ending, many employers are struggling to find the right approach to ensure compliance with their I-9 obligations, while also being mindful of the potential impact on their workforce and operations. In an effort to demystify this issue (a bit), I’m providing a list of our top 3 employer strategies which are based on discussions we’ve had with some of our clients and trusted attorney partners. As always though, employers should carefully discuss these issues with their own counsel before proceeding with any form of action.

(1) Follow your usual reverification procedure

The number one question being asked by employers today is what additional steps they should take in order to plan and prepare for the upcoming demise of DACA (and all of those beneficiaries who are currently working pursuant to its provisions). It’s not often that we have an entire category of employment eligibility being eliminated, so it’s certainly understandable that HR and compliance managers will want some tracking method to ensure compliance with the law.

Fortunately, most employers already have the means to carefully track and monitor DACA expirations through their usual reverification process (whereby an HR or compliance team will report on all I-9s with upcoming expirations). This is especially true in light of the fact that individuals who currently have DACA will be allowed to retain both DACA and their work authorizations (EADs) until they expire.

The rules relating to reverification can be confusing (and convoluted), but in a nutshell employers must reverify I-9s where the employee has provided an employment expiration date in section 1 or has provided an employment authorization document in section 2 with an upcoming expiration. In addition, employers should never reverify a US citizen, a non-citizen national, a lawful permanent resident who presented a green card (even a conditional one), or any List B documents. Detailed rules relating to reverification can be found online in the M-274 Handbook for employers.

If you haven’t yet set up a reverification tracking plan, here are some general pointers to consider:

  • Make sure you clearly define who should be subject to reverification (following the rules outlined above)
  • Implement a reminder system to alert you of upcoming expirations which are occurring 90 to 120 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation
  • Decide who will be responsible for actually performing the reverification and reviewing the original documents
  • If you’re using a well-designed electronic I-9 system, you can implement programmable email reminders (using the same time windows outlined above) and generate reverification reports on a regular basis to ensure that no one falls through the cracks

(2) Assess the Potential Impact with Caution

The second-most asked question concerns whether employers should proactively review their I-9 files and supporting documents to determine which employees are in fact DACA beneficiaries (for planning or targeted reverification purposes). There appears to be a split of opinion amongst immigration attorneys on this topic, with some advising that a cautious but proactive review can be helpful while others counseling against this process entirely.

Why the concern, you may ask? As we’ve discussed in the past, employers must make sure that their various I-9 and E-Verify activities comply with the anti-discrimination provisions of the law, which (among other things) prohibit unfair documentary practices (formerly known as “document abuse”) during the I-9 and E-Verify process. It’s important to note this prohibition applies to all work-authorized individuals (including DACA beneficiaries).

A classic example of an unfair documentary practice is treating a group of individuals differently when verifying employment eligibility – usually by requesting that they produce more or different documents or present a very specific document. While performing an internal assessment of your DACA employees may not rise to this level, some attorneys feel that it’s a slippery slope, which could lead an employer to engage in a prohibited practice – such as improperly terminating an employee (whose status does not yet expire) or prematurely requiring documents for reverification.

Other attorneys feel that assessing your potential DACA problem (through a limited I-9 review) is sound business advice, as long as you make sure that the proper controls and processes are in place (to avoid the slippery slope). Employers wishing to pursue this path (under the advice of counsel) should first consider whether they have sufficient documentation already on file to discover DACA employees.

The Form I-9 (by itself) will not provide conclusive information as to whether a given employee is in fact a DACA beneficiary (since the form does not request and employers are not permitted to ask for an employee’s specific immigration status). At best, you will likely only be able to determine if the employee is an alien authorized to work (with a future expiration date) who presented an I-766 employment authorization document (EAD) to demonstrate eligibility to work in the US.

Since a lot of work-authorized individuals may present EADs (based on a variety of factors), you’ll need to review a copy of the EAD presented during the I-9 process in order to determine whether it was issued pursuant to DACA. Employers participating in E-Verify will likely have these on file (since copying/retaining an EAD is required under the program rules), but other employers may not routinely copy and retain documents (since not strictly required under the law).

Assuming you do have copies of your EADs, your next step will be to review the copy in order to look for the very specific “category code” which corresponds to the applicant’s basis for eligibility under the law. There are dozens of potential category codes, but the one that is designated specifically for DACA beneficiaries is C33 (as illustrated in our EAD sample image below):

Depending upon the size of your employee population, this review process may be a daunting task (and not particularly worth the effort, especially if you already have a robust reverification plan in place). However, if you’re using a well-designed electronic I-9 and E-Verify system, you may be able to significantly reduce this review and analysis through the use of a targeted report which queries specific data points that can be used to determine potential eligibility.

Here is a sample report to generate for active employees:

Fields to include

  • Employee Name
  • Section 2 List A Document Name
  • Date of Birth
  • I-9 Expiration Date
  • Location and Business Unit

Once generated, employers can then download the report to Excel and filter the results to only show records where the Section 2 List A Document Name is an EAD and the date of birth is after June 15, 1981 (since those born prior would not have been eligible under the original program rules requiring the applicant to be under the age of 31 as of June 15, 2012). The resulting list will likely be small (and thus manageable), and your next step will then be to review the EAD provided (if copied/retained) in the system following the instructions outlined above in order to determine if the employee is in fact a DACA beneficiary.

It’s important to note that the reporting steps described above will not work if you are merely scanning/indexing your I-9 forms (without all of the underlying data) or using a basic system that lacks reporting functionality.

Your last step in this assessment process will be to prepare a list of all affected employees (based on the document review and/or data analysis steps above) which includes the individual’s work authorization expiration date and perhaps the specific business unit, department, or location where he/she is working. Having this list in hand, you can then have a better sense of those individuals who are vulnerable to DACA’s demise and for whom reverification may be a tricky affair (as described in our last point below).

(3) Remember the Rules for Reviewing Documents

As mentioned above, certain DACA beneficiaries will be able to renew their EADs beyond its current expiration date if (a) their EADs expire between September 5, 2017 and March 5, 2018, and (b) their renewal application is received by USCIS on or before October 5, 2017.

While you may be tempted to approach your eligible DACA employees to inquire about whether they have renewed, the better approach is to treat them exactly as you would in any reverification process by providing them with the list of acceptable documents and having them choose the document to present.  Under the law, employers are prohibited from requiring the employee to present a particular document (such as a renewed EAD), and from a practical perspective, it’s possible the DACA beneficiary may in fact have a new basis for continuing work authorization (perhaps through marriage to a US citizen).

In addition, employers should keep in mind that DACA based EADs are not subject to the 180-day automatic extension rule that was implemented earlier this year (whereby certain beneficiaries can continue working while their timely filed EAD application is pending). Therefore, you should not accept an application receipt notice for an EAD in this particular scenario.

Lastly, if an employee is unable to present you with evidence of continuing work authorization (in accordance with the I-9 rules), employers will need to terminate employment immediately or risk a potential violation of knowingly hiring or continuing to employee an individual who is not authorized to work in the US.

Conclusion

The I-9 rules regarding DACA-based employees can be complex, requiring employers to balance a variety of competing concerns including enforcement, business continuity, and (for many) a sense of fairness/compassion to the employees who will be impacted in the coming months. As with all things I-9 and immigration related, HR and compliance managers should remain vigilant in their compliance efforts through a comprehensive and coordinated effort involving advanced planning, communication, and continual efforts to stay informed of changes in the law. The DACA chapter is by no means over, and we may very well see a permanent legislative fix as the clock winds down on this relatively short-lived program.

In the meantime, if you have any questions or comments on this blog (including DACA reverification planning or electronic I-9 systems), please feel free to contact us here. You can also subscribe directly to this blog (and receive instant email notifications) by entering your email address in the following form.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.