Employers and DACA: Day DREAMing

Immigration reform efforts continue to make news in the US, but implementation challenges regarding a recent administrative order could turn dreams of an inclusive workplace into nightmares for both employees and employers.

x-Day-dreaming_at_work_means_nightmares_later^_Try_harder_today_For_the_U_S_A_-_NARA_-_535090.jpgThe State of US Immigration Reform in 2012

The November election results have given pro-immigration reform groups new hope for achieving their goals.  The reelection of President Obama offered a particular boost, with DREAM Act supporters hoping the administration would expand current immigration reform efforts.  Last week, 600 would-be DREAMers coalesced in Kansas City, Missouri to expand their support to include not just the DREAM Act but also extensive immigration reform.

One such effort is the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program. 

DACA in Focus

DACA is an administrative order that would allow individuals who meet certain requirements to obtain employment authorization and “deferred action” from immigration law enforcement (i.e., deferred removal/deportation proceedings) regarding their status. 

DACA is something of a consolation prize for the Obama Administration, which had backed the DREAM Act until the Senate blocked it in 2010. (Some border-state Republicans have answered DREAMers with their own inspirationally-named legislation, the Achieve Act.)

In his June 2012 remarks regarding immigration, President Obama reiterated that DACA is not an amnesty or immunity program.  Therefore, the DACA application itself does not confer legal status, nor does the granting of work authorization by USCIS

Successful DACA applicants must show proof of continuous US residence and a clean criminal record, among other eligibility requirements. The DACA application process appears to be straightforward for those applicants still in school.  However, veterans and those out of high school may require additional documentation to show continuous US residence, such as documentation from a current or previous employer.

But what is an employer to do when asked to furnish a trusted worker with documentation for a work permit?  An employee’s request for documentation becomes an admission that he or she has no current work authorization and, essentially, has made misrepresentations in either an employment application or while completing new hire paperwork. Aside from such conduct being a breach of federal law, it could also run afoul of any number of internal work rules.

Due Care Needed in DACA

Interestingly, USCIS has specifically contemplated that employers may be asked for documentation that would show an individual’s US presence. USCIS Form I-821D, which includes instructions for DACA applications, lists pay stubs, W-2 forms, employer letters and tax returns as possible documents to establish residence. However, employers should be cautious in communicating with employees regarding any specific DACA applications. In addition, employers may wish to avoid disseminating information regarding DACA directly to the workforce. 

Without due care on the part of both employees and employers during the DACA application process, employees may become subject to immediate discharge, leaving employers subject to civil penalties (even taking into account enforcement agencies’ prosecutorial discretion).

Under these challenging circumstances, and with no small measure of irony, the DACA application process may transform productive workers into unemployed day dreamers.

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