by Elaine Young
President Barack Obama recently announced a new immigration enforcement policy that opens new doors to thousands of immigrant youths. An estimated 800,000 young people have graduated from American high schools but aren’t authorized to work in the United States because they are here unlawfully. The new policy gives them a degree of legal protection from deportation and will authorize employment.
Requirements for “deferred action” status
Under the policy, the U.S. Department of Homeland Security (DHS) will not initiate deportation proceedings against any undocumented youth who meets all of the following five criteria:
- He came to the United States before age 16.
- He has resided in the United States continuously for at least five years preceding the enactment of the new policy and was present in the United States on June 15, 2012.
- He is enrolled in school, has completed high school, or is a military veteran in good standing.
- He is no older than 30.
- He hasn’t been convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses and doesn’t otherwise pose a threat to national security or public safety.
Eligible youth will receive “deferred action” status in two-year increments. The DHS hasn’t announced the specific process, but it is expected to do so by mid-August.
Despite the temporary and limited nature of the new policy, there are real consequences for employers that already employ or seek to employ individuals who fall under the new guidelines. Among the major benefits of deferred action is likely the ability to travel in and out of the United States. More notably, “deferred action” status allows those who can demonstrate “economic necessity” to work. We expect applications for employment authorization to follow the same processes currently used by other individuals receiving deferred action.
Verification process remains the same
All U.S. employers still are required to examine and verify each employee’s eligibility to be lawfully employed in the United States. An employment authorization document (EAD) that contains a photograph constitutes acceptable evidence to establish employment eligibility on Form I-9. Other foreign workers already use EADs, so employers may already be familiar with them.
Employers should be aware of existing federal rules prohibiting discrimination in the work eligibility verification process. To avoid discrimination claims, employers should go to whatever lengths necessary to treat individuals applying with EADs under the new policy equally with regard to applications, interviews, I-9s, and E-Verify. Prospective employees may choose from among the legally acceptable forms of documentation to establish identity and work eligibility. Employers participating in E-Verify should remember that special documentation standards apply to registered E-Verify users.
Remember that work authorizations under the new policy are temporary. “Deferred action” status is valid for two years. Employers should remind affected employees of the impending expiration of their EAD 90 days before expiration and must reverify the employee’s authorization. New deferred action for childhood arrivals clarified
USCIS weighs in
During the first week of August, the U.S. Citizenship and Immigration Services (USCIS) announced more information about the type of evidence it will accept as proof that the applicant came to the United States before the age of 16, continuously resided here for five years beginning June 15, 2007, and was physically present in the United States on June 15, 2012. The agency has said that documentation sufficient to demonstrate those criteria includes financial records, medical records, school records, military records, and employment records. Interestingly, the USCIS has included employment records as acceptable evidence, even though undocumented individuals are not authorized to work in the United States.
Employers should exercise caution if current or former employees ask for evidence of employment in the deferred action application process. Also, be aware that undocumented workers may give the USCIS evidence already in their possession, like job offer letters or copies of paychecks that bear the company’s name. Employers may receive requests from employees to produce simple affidavits confirming employment, which the USCIS says it will accept to cover any gaps in an applicant’s documentation of physical presence. An employer may not even be aware that the employee requesting the evidence is undocumented.
The DHS oversees both the USCIS and U.S. Immigration and Customs Enforcement (ICE), which is tasked with imposing sanctions on employers for unauthorized employees. It is important to remember that the DHS has not relaxed its rules or policies on employment eligibility and workforce compliance enforcement in light of the new deferred action policy. The USCIS has said that information individuals provide it in the deferred action process generally will be protected from disclosure to ICE for the purpose of immigration enforcement proceedings like deportation, but it has not said that the information will be protected from disclosure to ICE for the purpose of enforcing prohibitions against employers for employing undocumented workers.
Potential for liability unclear
One caution is important to keep in mind, especially for employers that currently employ or may have employed undocumented youth in the past. Applicants for “deferred action” status must demonstrate that they have resided continuously in the United States since June 15, 2007. The DHS has stated that sufficient documentation will include financial, medical, school, military, and employment records. Therefore, youth seeking “deferred action” status may ask their employers to provide evidence of employment, even though the employment unauthorized.
The last time the U.S. government provided similar benefits to undocumented immigrants, federal sanctions for employment of unauthorized workers were not in effect. While it is possible that the DHS may exempt certain employers from sanctions, stay tuned, and seek legal counsel before providing evidence of employment.
For more information, visit the DHS website for the latest news and updates on this process at www.uscis.gov/childhoodarrivals.
Elaine Young is shareholder with Kirton McConkie in Salt Lake City, Utah. She has significant experience handling the immigration, tax, and benefits aspects of cross-border employment in the firm’s International section. She can be contacted at eyoung@kmclaw.com.