Constangy partner Penni Bradshaw is a member of the U.S. Chamber of Commerce's Immigration Subcommittee. We are forwarding to you communication from the Chamber's Labor Relations Committee so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.
AUGUST 15, 2012 - DHS Deferred Action for Childhood Arrivals (DACA) Announcement; Issues Employers May Need to Consider
Today, DHS announced that it will begin accepting applications for Deferred Action for Childhood Arrivals (DACA). This is the Administration's effort to provide temporary benefits to individuals who were brought without lawful status to the United States as minors (who would benefit from the so called "DREAM Act," which has never passed Congress). We wanted to alert you because there are several worksite enforcement-related aspects of DACA.
In particular, employers should keep the following questions in mind when dealing with this new policy:
If an employer learns from an employee that she has filed for DACA, does the employer now have constructive knowledge that the employee is unauthorized and must terminate employment?
- Even if an employee had presented documents to the employer that were facially valid, once granted DACA status and employment authorization documents, does the employee need to be fired for violating the employer's honesty policy governing the accuracy of information provided by employees to an employer (if applicable)?
- What if an employee does not have a formal employment contract with an employer and instead has a letter from the employer, does a written employment confirmation letter create a lead for an ICE worksite investigation?
- If an entity has retained a DACA applicant as an independent contractor in the past and that applicant requests documents for past services, will providing documentation expose the employer to enforcement actions?
- Will employers who submit letters on behalf of DACA beneficiaries be the subject of targeted I-9 audits?
Worksite enforcement-related issues have been raised with DHS by the Chamber, as well as others, but the high level policy decisions needed to provide certainty for the business community have not yet been made, as the above listed questions have not as of yet been answered.
These worksite enforcement-related questions may have more significance than previously expected because:
- Recent analysis made public last week by the Migration Policy Institute suggested there are likely 1.26 million potential DACA beneficiaries currently in the United States without authorization age 15 to 31 of which about 58% are currently working;
- Many DACA applicants will only qualify by providing circumstantial evidence, and if many applicants are working they may seek assistance from or documentation from employers and DHS may encourage applicants to provide employment information.
As background, individuals may be DACA eligible if they:
- Came to the United States before their 16th birthday;
- Were under age 31 and had no valid immigration status on June 15, 2012;
- Have continuously resided in the United States between June 15, 2007 and the present;
- Are enrolled in school on the date of the request, graduated from high school, obtained a GED, or were honorably discharged from the Armed Forces;
- Have not been convicted of a felony, a "significant" misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
According to DHS, information provided in a DACA application relating to the beneficiary, including information relating to requesters' family members or guardians, will not be used for immigration enforcement proceedings, unless the individual meets the existing criteria for referral to ICE or issuance of a Notice to Appear in immigration court. However, DHS has not clarified whether employer information submitted by the DACA beneficiary will be kept confidential.
We will continue to update the Labor Relations Committee on the impact of this issue as additional information is released.
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