USCIS publishes new I-9 guidance for employees with extended DACA work authorization
Today, the United States Citizenship and Immigration Services (USCIS) issued new I-9 guidance that will impact how employers document (and keep track of) work authorization for certain employees working pursuant to the Deferred Action for Childhood Arrivals (DACA) program.
In a nutshell, employers can now accept an unexpired DACA-based EAD that was issued on or after July 28, 2020, along with an I-797 Extension Notice issued by USCIS that shows a one-year extension of DACA. The employer will then use the extended date (from the I-797) for work authorization purposes.
Before we dive into the guidance in more detail, let’s do a quick review of why the USCIS is implementing this new “exception” to the I-9 rules.
The Rise and Fall, and Rise Again of DACA
(the relatively brief edition)
Implemented in 2012, DACA is an Obama-era executive action which provides both temporary protection from deportation and work authorization to certain undocumented youth who came to the US when they were children. For a detailed write-up of DACA, check out this site here.
Throughout his term in office, President Trump has repeatedly attempted to terminate and/or drastically diminish the DACA program. For example, on September 5, 2017, the Trump administration issued a memo announcing that DACA would be phased out over a six-month period. A variety of lawsuits were filed, and as a result, three U.S. district courts issued nationwide injunctions allowing people who had previously received DACA to continue renewing it while the litigation continued.
The Trump administration sought review of these cases in the US Supreme Court, which ultimately decided that DHS’s termination of DACA did not comply with federal law. As a result, the Supreme Court upheld a lower court decision that vacated the September 5, 2017 memorandum, thereby restoring DACA to its original 2012 state.
However, rather than fully re-instating the program, DHS, through its Acting Secretary of Homeland Security Chad Wolf, issued a new memorandum which called for a full review of the DACA program and several significant changes. Of particular note, the July 28, 2020 memo instructed USCIS to reject initial DACA requests from applicants who have never received DACA and to effectively shorten DACA renewal and work authorization period from two years to one year.
More recently, a U.S. district court found that Mr. Wolf was not lawfully serving as the Secretary of Homeland Security and thus had no lawful authority to issue the so-called Wolf Memo mentioned above. On December 4, 2020, the court then issued an order vacating the Wolf Memo in its entirety, and on December 11, ordered DHS to perform several steps, including mailing individualized notices to all relevant individuals informing them that their current period of deferred action and employment authorization document (EAD) have been extended from one year to two.
Following those court orders, USCIS issued an update on their website on December 9, in which they announced they are accepting new DACA applications as well as renewal requests. In addition, USCIS noted that they are automatically extending one-year grants of protection and work authorization that were issued under the Wolf-memo restrictions – which leads us back to our announcement today.
I-9 Process for Employees with Extended Work Authorization under DACA
DACA beneficiaries (of which there are estimated to be almost 700,000) are provided with an employment authorization document (EAD), which is an acceptable List A document for Form I-9 purposes and subject to reverification. And as described above, there may be situations when a new or existing employee (working pursuant to DACA) receives a one-year extension of their work authorization in compliance with the court’s order re-instating the DACA program.
For I-9 purposes, these employees may choose to present their unexpired Form I-766, Employment Authorization Document (EAD) with Category code of C33 that was issued on or after July 28, 2020, along with an I-797 Extension Notice issued by USCIS that shows a one-year extension of their deferred action and work authorization under DACA.
For newly hired employees, USCIS instructs the employee to enter the end validity date from the I-797 notice in the “Authorized to Work Until” field in Section 1 of the Form I-9.
In Section 2 of the Form I-9, the employer or employer representative must enter the end validity date from the I-797 notice in the Expiration Date field in Section 2, and enter DACA Ext. in the Additional Information field.
Finally, the USCIS notes that employers may reverify a current employee before reverification is required if they present the unexpired DACA EAD with the I-797 extension. Employers are instructed to enter the end validity date from the I-797 notice as the Expiration Date in Section 3, and enter DACA Ext. in the Additional Information field in Section 2 (on the same page above).
Today’s USCIS announcement did not specifically address how E-Verify participating employers should handle the submissions to E-Verify for these extended DACA EADs. However, as a general rule, employers must always use the information from the Form I-9 when creating a case in the E-Verify system. Therefore, it stands to reason that E-Verify participating employers must also ensure to use the extended EAD date (from the I-797) when creating a case in the E-Verify system as well.
For employers using the E-Verify web interface, this means you’ll need to enter the extended date in the Expiration Date field.
Employers using electronic I-9 systems (with built-in E-Verify integrations) won’t have to worry about this as the system should automatically transmit the correct expiration date from the electronic I-9.