AUTHORS: Davis Bae and Peter Nohle
On November 19th, The USCIS electronically released Guidance for employers on the Deferred Action for Childhood Arrivals (DACA) Program. http://www.uscis.gov/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood%20Arrivals/DACA-Fact-Sheet-I-9_Guidance-for-employers.pdf . In this Guidance, USCIS instructs employers to follow standard new hire procedures for DACA Applicants; however the guidance provided for “existing Employees” is inconsistent with previous guidelines. Under the most recent DACA guidance, if an employer receives updated I-9 information from an existing employee, the employer should either complete a new Form I-9 or complete Section 3 of an existing Form I-9 depending on whether information changes in Section 1.
Specifically, if the employee’s information in Section 1 has not changed, the guidance instructs employers to simply complete Section 3 and re-verify the employee’s work authorization documentation. If, however, the employee’s identifying information in Section 1 has changed, the guidance states that the employee and employer should complete a new Form I-9. This includes information such as the employee’s name, birth date, and social security number (if provided). This instruction to complete a new I-9 is not consistent with previous I-9 compliance guidance where changes to an employee’s name, birth date, attestation or social security number did not require completion of a new Form I-9.
The USCIS guidance is also inconsistent for employers who utilize E-Verify. Under this new guidance, when an employer is completing a new Form I-9 for a (new or existing) employee, the employer should initiate a new case in E-Verify for the same employee. Previous USCIS and ICE guidance was that only employees who have been re-hired should have their information resubmitted to E-verify.
The Office of Special Counsel, which prosecutes claims of discriminatory immigration practices, generally advises employers to avoid claims of discrimination by applying I-9 policies consistently amongst all employees. This DACA Guidance potentially opens employers to claims of discriminatory practice by creating different rules for individuals who can claim relief under DACA from the rules that apply to other employees.
Employers should be aware that their decisions relating to treatment of DACA beneficiaries may implicate aspects of employee relations well beyond immigration issues. For example, it is not hard to imagine a situation where an employee covered by the DACA advises his current employer that he originally lied about his identity on an employment application, but is now legal to work due to DACA relief. Employers in this situation must grapple with what level of disciplinary action against the employee is appropriate due to the admission of misrepresentation, and will need to consider how this decision may affect future enforcement of policies on honesty in the workplace. Other employees who are considered for discipline based on honesty-related issues may point to employer’s treatment of the DACA employee and hold an expectation of consistent treatment.
Although the recent election results clear up the question of whether the DACA Program will continue, this recent guidance from USCIS highlights the difficulty for employers in implementing policy regarding DACA beneficiaries. Approximately 12,000,000 people are in the United States without authorized status. As legislative discussions continue to address immigration reform, employers are advised not only to stay abreast of changes to immigration law and policy but should also seek counsel on the complex practical issues new policies like DACA can create, such as those explored here.