On June 15, 2012, the Obama administration announced that it would begin exercising prosecutorial discretion and defer deportation proceedings for certain undocumented immigrants. In a memorandum to several immigration and customs enforcement agencies, Secretary of Homeland Security Janet Napolitano described how “the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against young people who were brought to this county as children and know only this country as home.”

The administration further announced that the United States Citizenship and Immigration Services (USCIS) would begin “accept[ing] applications to determine whether these individuals qualify for work authorization during this period of deferred action.” On August 15, 2012, USCIS began accepting applications for deferred action and work authorization.

To qualify for deferred action, an individual must have come to the United States when he or she was under sixteen years of age; lived in this country for the previous five years; received a high school diploma or GED, or been honorably discharged from the military; not been convicted of certain crimes; and be 30 years old or younger. As with all other employees, employers will need to verify that individuals eligible for deferred action may lawfully work in the United States.

Employment Verification Process

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify that every new hire is eligible to work in the United States. To do so, new hires and employers must complete USCIS Form I-9, Employment Eligibility Verification. An employee beginning a new job must complete Section 1 of the form by providing basic information such as that individual’s name, address, and date of birth.

Employers may not request documentation for employment verification purposes until after hire. The employer must complete Section 2 of the Form I-9 within three days of a newly-hired employee starting work. The employer does so by “examining evidence of identity and employment authorization.”

The Form I-9 specifically lists the documents that employees may provide to prove employment eligibility. An employee may submit a single, original document that proves both identity and eligibility to work (e.g., a passport). Alternatively, an employee may provide a document establishing identity (e.g., a driver’s license or school identification card) and a document proving that he or she is authorized to work (e.g., a birth certificate or employment authorization card issued by the DHS).

An employer may not require an employee to present specific documents to prove employment eligibility (i.e., as long as the document(s) presented are listed on the Form I-9, the employer must accept them). In addition, an employer may not refuse to hire an employee because his or her proof of employment eligibility has an expiration date. The employer must examine the employee’s documentation, and accept it if the documents appear on their face to be genuine and to relate to the newly-hired employee.

Federal law prohibits discrimination against prospective employees based on citizenship and national origin. Employers should apply the same standards for employment eligibility verification to all employees.

Verifying Employment Eligibility for Childhood Arrivals

Immigrants eligible for deferred action who wish to work legally must submit a Form I 765, Application for Employment Authorization, to the USCIS. If the USCIS determines an applicant is eligible for employment, the agency will issue an Employment Authorization Document (EAD), Form I-766.

The EAD äóñ which includes a photograph and resembles a state-issued identification card or driver’s license äóñ is sufficient to prove both identity and eligibly to work. Where an employee presents an EAD as proof of employment eligibility, the employer may not request any additional documentation.

The EAD temporarily authorizes its holder to work in the United States and includes an expiration date. Upon the EAD’s expiration, the employer must re-verify the employee’s eligibility to work. The employee must present a new EAD or other document proving employment authorization. If the employee cannot do so, the employer cannot continue to employ him or her.

Tips for Employers

The new deferred action initiative will have no impact on most employers’ operations. Employers with procedures in place for properly verifying employment eligibility and completing Forms I-9 must ensure policies and procedures allow the EAD to be proof of employment eligibility.

In addition to complying with employment eligibility verification requirements, employers should ensure that they apply their policies and procedures consistently, only request documentation after hire, and refrain from factoring citizenship or national origin into hiring decisions. Further, an employer should not inquire as to whether an employee obtained an EAD due to deferred action.

Some employers may face situations in which current employees provide newly obtained EADs and admit to previously submitting false documentation to prove employment eligibility. Under these circumstances, an employer may accept the new documentation, no questions asked. On the other hand, an employer may wish to take adverse action against the employee for application fraud. Prior to taking any such action, an employer should consult with legal counsel to assess potential legal exposure.

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