Workplace Compliance: I-9 Guidance for Employers of DACA Recipients

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On June 15, 2012, President Barack Obama issued an executive order called Deferred Action for Childhood Arrivals (DACA).  Since 2012, DACA has allowed nearly 800,000 eligible noncitizens who were brought to the U.S. as children to apply for two years’ protection from deportation/removal, as well as employment authorization.  While the future of DACA is still under review with President Donald Trump’s Administration, it is important that employers remain up-to-date with employment verification requirements.

Under the Immigration and Nationality Act (INA), employers are required to verify the identity and employment authorization status of all employees hired after November 6, 1986.  Employers use Form I-9 (Employment Eligibility Verification) to document that an employee is authorized to work in the U.S.  They must complete and retain a Form I-9 for each person they hire.

DACA recipients are issued an Employment Authorization Document (EAD).  The EAD establishes both identity and employment authorization under “List A” of the Form I-9.  As a result, if a DACA recipient presents an unexpired EAD that appears to be genuine, the employer should accept it.  The employer may not request that the applicant provide additional proof that the applicant’s case has been deferred or that the applicant is authorized to work.

Once an employee is hired and has completed the I-9 process, employers are allowed to conduct reverification of employment eligibility only in certain circumstances such as when an EAD is about to expire or already has expired.  At the end of the two-year period, DACA recipients can apply to renew deferred action and their EADs.  The employer should remind the employee to file an application to renew his or her work authorization well in advance (180 to 120 days) of the expiration date.

If the EAD has expired, employers must reverify the Form I-9 to ensure that the employee is still authorized to work.  If updated or new documentation is provided, the employer should review the employee’s previously completed Form I-9 and determine whether to complete a new Form I-9 or only to complete Section 3 of the previously completed Form I-9.  If the updated documentation reveals that the employee previously provided false I-9 identification showing that he/she was unauthorized to work, the I-9 rules do not require termination of employment.  Such employment may be terminated only if doing so is in compliance with an existing written honesty policy implemented indiscriminately and consistently through the entire company. The employer should consult an attorney before taking any further action.

Finally, the INA prohibits employers from discriminating in the Form I-9 process against work-authorized individuals based on their national origin or, under certain cases, their citizenship or immigration status.  The complexity of these issues require employers to be diligent as certain actions can result in violations of the INA, Title VII of the Civil Rights Act of 1964 (Title VII), and labor laws.  Therefore, employers should consult with their attorney if they have any questions.

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