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Not Child's Play: DACA and the WorkplaceElise A. Healy offers a brief summary of the Deferred Action for Childhood Arrivals program's requirements, the government's guidance to employers in relation to DACA beneficiaries and some key issues relating to I-9 compliance for people in this group.
In June 2012, President Barack Obama's administration announced a form of temporary relief from deportation for some (not all) of the many young people brought unlawfully to the United States as children. The program is called Deferred Action for Childhood Arrivals (DACA).
Texas general counsel can expect to see DACA beneficiaries applying for jobs soon; some already have. What follows is a brief summary of the DACA program's requirements, the government's guidance to employers in relation to DACA beneficiaries and some key issues relating to I-9 compliance for people in this group.
Deferred action occurs when the government exercises its prosecutorial discretion to defer removing an individual. Historically, such discretionary reprieves were quite rare. However, on June 15, 2012, U.S. Department of Homeland Security Secretary Janet Napolitano announced that certain people who came to the United States as children and who meet several key guidelines may request consideration of deferred action for a period of two years.
Approved DACA applicants are eligible for Employment Authorization Documents (EAD), renewable every two years. To qualify for DACA benefits, applicants must prove they:
were under age 31 as of June 15, 2012;
came to the United States before their sixteenth birthday;
have continuously resided in the United States from June 15, 2007, to the present;
were physically present in the United States on June 15, 2012, as well as at the time of making their DACA request;
entered the United States without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or are honorably discharged veterans of the U.S. Coast Guard or Armed Forces; and
have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The EAD issued to successful DACA applicants establishes both identity and employment authorization for purposes of completing Form I-9. As always, employers must accept any unexpired EAD card if it reasonably appears to be genuine and to relate to the individual presenting it.
Form I-9 Issues
In-house counsel should prepare for many questions from the human resources department regarding the DACA program. Some of these questions will center on what to do regarding current employees who participate in the DACA program.
If an existing employee provides updated EAD information after receiving DACA employment authorization, the employer must decide whether to update that employee's existing Form I-9 or complete a new Form I-9. According to recent U.S. Citizenship and Immigration Services DACA guidance, if the employee's name, birth date, attestation, or Social Security number has changed, the employer should complete a new Form I-9, write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form I-9.
If an employee presents a new EAD but none of the information in Section 1 of the Form I-9 has changed, DACA guidance says the employer should simply record the document title, document number and expiration date, and sign and date Section 3 of Form I-9. If the employer already has used Section 3, or if the version of the form the employer used for a previous verification is no longer valid, the DACA guidance says to complete Section 3 of a new Form I-9, using the most current version, and attach it to the previously completed Form I-9.
If an employer must complete a new Form I-9 because an employee's Section 1 information has changed, the DACA guidance advises employers to verify the new Form I-9 information through E-Verify, which allows employment-eligibility verification via the Internet. Otherwise, the employer should not conduct a new E-Verify check.
Unfortunately, the DACA guidance provided by USCIS conflicts with existing USCIS policies and instructions, making the legal department's job more difficult.
There are three key areas of discrepancy: when to complete a new Form I-9 for an existing employee, how to correct a Form I-9 and when to use E-Verify. For example, the DACA guidance states that a new Form I-9 should be completed if an employee's name changes. However, USCIS' "Handbook for Employers" (Form M-274) states that employers "are not required to update Form I-9 when an employee changes his or her name."
Further, the DACA guidance directs employers to complete a new Form I-9 if an employee's Social Security number changes. This conflicts with long-standing USCIS policy that the Social Security number field on the Form I-9 is optional.
In addition, errors or updates to Form I-9 data historically have been corrected by drawing a line through the incorrect information, entering the correct information, and initialing and dating the correction, rather than completing a new Form I-9. USCIS' I-9 Central website indicates that new Forms I-9 should only be used to correct "multiple recording errors" or in the event of major errors (e.g., entire sections left blank, or Section 2 completed based on unacceptable documents).
Finally, the DACA guidance states that an employer that completes a new Form I-9 for an existing employee based on new DACA work authorization should re-verify the new information through E-Verify. This directly conflicts with the rules outlined in the E-Verify Memorandum of Understanding and the E-Verify User Manual for Employers. According to these policy documents, employers enrolled in E-Verify may only verify the I-9 information of newly hired employees.
The immigration bar has asked for clarification of these inconsistencies, which should be forthcoming soon. Until then, general counsel should make sure their companies follow the policies set forth in the Handbook for Employers (M-274), the USCIS website, I-9 Central and the E-Verify User Manual.
Elise A. Healy is board certified in immigration and naturalization law by the Texas Board of Legal Specialization and has practiced immigration law for over 20 years. She is a founding shareholder in Spencer Crain Cubbage & Healy in Dallas.