The Law @ Work

Questions Surround New ‘Deferred Action for Childhood Arrivals’ Program

President Obama recently announced a new action program that will defer deportation of certain undocumented immigrants who have been brought to the United States before reaching adulthood.  Under the program, youths who arrived in the country before the age of 16 and who match certain other criteria may request consideration of Deferred Action for Childhood Arrivals (DACA) for a period of two years, subject to renewal.  These criteria are the same as those previously proposed under the DREAM Act, which Congress failed to pass in 2010.

This announcement has implications for employers because the program offers these young people an opportunity to become eligible for employment authorization.  As a result, there are a number of questions that employers may need to face when dealing with current and prospective employees who have been granted DACA status:

  • If the employer learns that an employee has filed for DACA, does the employer now have knowledge that the employee is unauthorized?  If so, must the employer terminate employment or reject the candidate?
  • If the employer learns that a current employee who presented facially valid documents has now been granted DACA status, should the employee be disciplined for violating a policy that prohibits providing false or misleading information to the employer?
  • Are employers prohibited from discriminating against DACA grantees who were previously rejected because of illegal status?
  • Will employers who submit employment verification letters on behalf of DACA beneficiaries be the subject of targeted I-9 audits?  What other documentation might expose employers to enforcement actions?

Unfortunately, the Department of Homeland Security has not yet addressed these questions, which leaves employers without any meaningful guidance on how to address these issues.  The U.S. Citizenship and Immigration Services began accepting DACA applications last week, so employers should anticipate seeing these new workers enter the job market soon.  We will keep you posted on any new developments, but in the meantime, if you have questions regarding a current or prospective employee who has filed for or been granted DACA status, feel free to contact any of the attorneys at Skoler, Abbott & Presser, P.C. for assistance.

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