DACA Program Raises Questions For Employers In The I-9 Process

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

Companies must balance countervailing mandates under immigration law: verifying employment eligibility while not discriminating unlawfully. With the recent implementation of the Deferred Action for Childhood Arrivals (DACA) program, which gives work authorization to those who establish that they were in the United States without authorization, implementation questions are sure to arise. Below is some guidance on handling both responsibilities.

Employers must verify the employment eligibility of every new employee hired after November 6, 1986, using Form I-9. Violations of this law can trigger potentially large civil fines—and even criminal penalties and injunctions—for pattern or practice violations. Liability may also arise from the failure to properly complete and retain I-9 forms (referred to as "paperwork" violations).

To avoid discrimination against applicants based on a perception that they look or sound foreign, the Immigration Reform and Control Act of 1986 (IRCA) requires that the I-9 verification procedure take place after hiring, and it incorporates provisions against discrimination based on citizenship status or national origin.

The Immigration and Nationality Act of 1986, 8 U.S.C. §1324b, contains an anti-discrimination provision, §274B, prohibiting: citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; national origin discrimination in hiring, firing, or recruitment or referral for a fee; document abuse (unfair documentary practices during the employment eligibility verification process, which occurs via Form I-9); and retaliation or intimidation.

U.S. citizens, lawful permanent residents, temporary residents, asylees, and refugees are protected from citizenship status discrimination. The national origin provisions prohibit employers from treating individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign."

The unfair documentary practices provision relates to verifying the employment eligibility of employees. Under this provision, employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.

So, employers must balance these two countervailing requirements. If they fail in their I-9 compliance efforts, the U.S. Department of Homeland Security might institute civil and criminal sanctions against them. Alternatively, if they go too far to ensure work authorization, the U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) might pursue significant civil sanctions.

Also, corporate leaders should be aware of the link between workplace compliance liability and corporate disclosure obligations related to the Form I-9. Companies are increasingly being forced to put shareholders and potential investors on notice of I-9 compliance deficiencies in U.S. Securities and Exchange Commission filings.

Intersection of DACA and Existing Law

Companies may face questions regarding the intersection of DACA and existing law in a variety of ways.

First, what should a manager do if a current employee specifically asks for the employer's help in applying for the DACA benefit? In this case, the employer might conclude that the employee currently is unauthorized to work and terminate him or her. However, in some cases the employee might have lawful status or work authorization via some other path. Managers should elevate all such cases to legal counsel for review before taking an employment action.

Second, what should a manager do if an employee asks for a letter confirming proof of employment for use in a DACA application? This scenario differs from an employee asking for a proof of employment letter for an unspecified purpose, which would not present an employment authorization issue. However, if the employee specifies that the purpose of the letter would be for their DACA application, the approach in the first situation applies.

A third fact pattern involves an employee who has been working with a company and presents work authorization obtained through DACA. If the employee was dishonest in the hiring process (i.e., gave a false name, date of birth, or Social Security number or was not authorized to work at the time) and the company's honesty policy is to fire such individuals, then the company likely will have to consider discharging the employee, even though he or she has proof of work authorization now.

What if the company does not want to lose the worker? The legal department can consider an alternative possibility: terminate the employee and rehire him or her. This is acceptable as long as the company does so uniformly and this decision does not represent disparate treatment to the detriment of others terminated under the honesty policy for other types of violations. In the rehire scenario, the employer would have to complete a new I-9 and use the DACA employment authorization card.

Another potential encounter would involve a new hire who presents work authorization obtained under DACA that is valid for only two years of employment. DACA is an executive branch creation, which means that the current administration must order renewal of the benefit every two years. Some employers prefer not to employ someone who may not be eligible for employment beyond the two-year period without the employer's sponsorship for some other form of work authorization.

Employers are permitted to ask job applicants whether they will require sponsorship for an immigration benefit now or in the future. Employers can take into account the temporary nature of the work authorization when deciding among candidates as long as they do not use the temporary nature of the individual's work authorization as a pretext for discrimination on the basis of national origin.

With an estimated 940,000 individuals eligible to apply for this authorization, employers should work with legal counsel to address one or more of the possible scenarios in their companies' workforces.

Note: This article was published in the February/March 2013 issue of the Immigration eAuthority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!