• 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the employer already has used Section 3, or if the version of the form the employer used for a previous verification is no longer valid, the DACA guidance says to complete Section 3 of a new Form I-9, using the most current version, and attach it to the previously completed Form I-9.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).
