On June 15, President Obama, frustrated by congressional inaction on immigration reform, announced that his administration would exercise executive power to make Deferred Action for Childhood Arrivals (DACA) available to as many as 1.3 million young people. The new policy met with fierce opposition: An attendee at that Rose Garden press conference interrupted the president to express his outrage, and shortly thereafter, in Arizona v. United States, Justice Scalia harshly criticized the president’s action. Gov. Romney implied — while campaigning — that he might terminate the policy. Eligible DACA candidates were reluctant to apply for fear the DACA was soon to be retracted.
Then, President Obama won the election with 71 percent of the Hispanic vote, and suddenly, many of those who initially objected to the president’s immigration policies are jumping on the immigration reform bandwagon. Even the casual observer can recognize a sea change in the attitude toward immigration reform when conservative talk show host Sean Hannity declares that “[immigration reform] is a position that I’ve evolved on.” This “evolution” in the political environment on immigration is likely to ensure stability for the DACA program and result in an increase in DACA applications. U.S. employers will have to address how DACA affects them.
The DACA Program
The Department of Homeland Security (DHS) does not acknowledge DACA as a formal “program” of relief. Instead, it describes it as an exercise of discretion to not deport individuals who were under the age of 31, as of June 15, and fit the following criteria:
1. Came to the United States before reaching their 16th birthday;
2. Have been continuously residing in the United States since June 15, 2007, up to the present time;
3. Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of Deferred Action;
4. Entered without inspection before June 15, 2012, or lawful immigration status expired before June 15, 2012;
5. Are currently in school, have graduated or obtained a Certificate of Completion from high school, have obtained a General Education Development (GED) certificate or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
6. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Those granted Deferred Action are eligible to obtain employment authorization and, under limited circumstances, permission to travel in and out of the United States.
Impact on Employers
An employer should assess the DACA program from two perspectives: As a good corporate citizen, what should our approach to DACA be? And what actual impact does the program have on our employee population?
Even before DACA was announced, there was considerable support for the “Dream Act” which would provide permanent status for young people who were brought into the United States illegally by their parents, grew up in the United States and clearly had the potential to make a significant contribution as full participants in society. Congress failed to pass the Dream Act, but the DACA policy implements its themes. Now, after the election, we would expect that there will be even more support for DACA, if for no other reason than the fact that it could provide a basis for an orderly transition into formal legal status, should a new version of the Dream Act pass in Congress. This should incline many employers to embrace the policies that drive DACA as good for the country and good for business.
However, the phenomenon of young employees coming out to apply for DACA raises strategic and legal complications for employers seeking to maintain a legal workforce.
• Knowledge of Current Unauth-orized Status
When an employer has knowledge that one of its employees does not have authorization to work, it has an obligation to terminate or suspend the employment of that individual, pursuant to the Immigration Reform and Control Act of 1986 (IRCA). This obligation extends to situations where the employer, while not certain of the employee’s status, has “constructive knowledge” that the employee is not authorized to work. Thus, if an employee??requests a letter of employment to confirm his or her presence in the United States, and makes the employer aware that the purpose of the letter is to qualify for DACA, that employer now has constructive knowledge, if not actual knowledge, that the employee is not authorized to work in the U.S.
However, a simple request for an employment confirmation letter, without further elaboration as to the reason for the request, does not necessarily create “constructive knowledge,” since an employee may have many legitimate reasons for soliciting the letter. Accordingly, an employer may implement a standardized procedure for providing employment confirmation letters, where it is not specifically informed that the letter will be used by the employee to support a DACA application. In this manner, the employer can attempt to do the impossible: comply with its obligations under IRCA, while still preserving the legal rights of its employees.
United States Citizenship and Immigration Services (USCIS) has confirmed that when businesses provide employment verification letters to DACA applicants, this information would not be shared with other enforcement authorities “unless there is evidence of egregious violations of criminal statutes or widespread abuses.”??DHS spokespersons have assured the public that the agency is not interested in investigating applications unless there is a “widespread pattern and practice of unlawful hiring.” Businesses quoted in the press, have not been reassured by these government statements.
• Knowledge of Former Unauthorized Status
Another consequence of DACA is that an employee may present her employer with an Employment Authorization Document issued pursuant to the DACA program, requesting that her records be updated. By doing so, the employee may de facto be confirming??that documentation previously presented at the time of hiring was false and that, until now, she was not authorized to work in the United States.
It is well established under U.S. immigration law that an employer may continue the employment of such an individual after updating records and correcting past filings, as she is now legally authorized to work. However, if the company has an “honesty” policy, it may need to terminate this employee to avoid a claim of discrimination by other employees who were terminated based upon the “honesty” policy. In addition, the DOJ’s Civil Rights Division warns that it will investigate whether an employer’s “policy” is consistently applied to employees who make false representations on their applications for employment, without regard to citizenship status or perceived national origin, in order to ensure that this is not merely a pretext for citizenship status discrimination.
Even in the absence of an honesty policy, presentation of this new DACA-based Employment Authorization Document to the employer raises a series of difficult practical questions regarding the treatment of the employment verification (I-9), tax and Social Security records. Should this employee be treated as a brand new hire who previously never existed? Or must the employer affirmatively correct all formal documents and filings?
There are pundits who would argue that it is appropriate to treat the employee as a new hire and execute a new I-9 and W-4. Although this avoids a lot of difficult administrative and paperwork issues, such as retroactively amending tax, corporate, and Social Security records, and in practice is often the approach that employers have taken, it is hard to see the legal justification for doing so. Whatever errors in the corporate record are now revealed, this is not truly a new hire.
• New Employees Who Present a DACA Employment Authorization Document
DACA beneficiaries are granted Deferred Action status for a period of two years and may, if the DACA policy remains in place, request renewal. This status and the employment authorization is purely at the discretion of DHS.
Many companies will not be deterred from hiring DACA participants, even though their continued ability to work in the United States, in the long-term, is uncertain. They will conclude that the continuation of DACA and the passage of some form of the Dream Act, will eventually resolve this problem. They might also feel a special responsibility as corporate citizens to support the transition of these young people into the legal workforce.
However, there are many companies that do have a concern as to the contingency of the status, and may already have a general policy of not hiring any individuals whose authorization to work in the United States is temporary and may not be renewed. Would such a policy subject the employer to a charge of discrimination? Under IRCA, there are non-U.S. citizens who are in a “protected status” with regard to hiring and firing, but individuals granted “deferred action” (which, many argue, is not a “status” at all) are certainly not within that protected group. Furthermore, the DOJ has confirmed that an employer can take into account the “temporary” nature of the work authorization in determining whether to hire such an individual, provided that the policy is applied consistently and in a nondiscriminatory manner.
Immigration reform is now back in play, and we might even see the government begin to tackle comprehensive immigration reform, addressing all issues of concern with regard to immigration policy. However, even the most optimistic do not foresee any serious reform activity until sometime next year, and actual implementation would be further down the road. For now, employers must deal with DACA and be sensitive to the fact that the evolving politics of immigration policy will continue to affect their ability to maintain a legal employee population. •