On November 20, 2014, President Obama announced a series of executive actions he would take to crack down on illegal immigration at the border, prioritize deportation of “felons not families,” and allow certain undocumented immigrants to temporarily remain in the U.S. without fear of deportation if they could both pass a criminal background check and pay taxes. For supporters this was music to their ears, to detractors this was a bridge too far. As a practical matter for employers, there are still more questions than answers. There is more guidance expected in the coming months as agencies work to implement the President’s Order.
The President’s announcement boils down to five initiatives that will affect immigration policy. The initiatives are:
- Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three;
- Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks;
- Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens;
- Modernizing, improving, and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs; and
- Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee.
The new DACA expansion will also result in newly authorized employees’ requests to update their employment records with new identity and work authorization documents, including new Social Security Numbers. This may be the first actual notice to an employer that the person has not been previously eligible to work in the United States, although the employer has a Form I-9 on file with notation of documents that it considered reasonable on their face to establish identity and employment eligibility. With this new knowledge employers may consider taking adverse action against the offending employee on the basis of an honesty policy or statement in an employment application or employee handbook. However, employers should consult employment legal counsel to discuss potential exposure to damages and civil money penalties under state and federal anti-discrimination laws prior to taking employment action based on any employer honesty-only policy.
While none of the preceding initiatives has been implemented yet, persons that believe they fall within the announced parameters may self-disclose their status now claiming they are permitted to remain in the U.S. and work. Many of these individuals may ask their employers for letters of support to establish their presence in the U.S. In some cases, the employer or its agents will overhear employees discussing the process and draw conclusions about employees’ immigration status. In either event, employers should be very careful not to jump to conclusions or make decisions based on such information, particularly where it contradicts what appeared to be reasonable and legitimate authorization documentation presented at the time of hire. Serious consequences may accrue to the unwary employer that now has knowledge of the employee’s unlawful immigration status.
In those situations where an employee obtains new authorization documents, the employer should have the employee complete a new Form I-9. The employer must again review the identity and employment eligibility documents and certify them by completing Section 2 of Form I-9. An employer enrolled in E-Verify should also process the new I-9 through the E-Verify system. The new I-9 should be attached to the original I-9 and kept on file according to the retention requirement. The employer should also have a new W-4 form completed by the employee if a new Social Security Card and number is issued.
Over the next several months, various federal agencies will take necessary action to implement the President’s executive actions including U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and, Social Security Administration (SSA). Employers should consult each agency’s website for additional information or instructions on how to handle and administer new employee documentation requests.