What to do when an employee requests employment verification for DACA purposes?
On August 15, 2012, the Department of Homeland Security (DHS) began accepting applications for Deferred Action for Childhood Arrivals (DACA) for individuals who came to the United States as children. DACA recipients are eligible for work authorization and deferred action from removal for two years, which can be renewed.
Although a huge benefit for those individuals, there are potential issues that employers should be aware of. When Employers complete a form I-9, the employer attests that the employer has examined the documents presented by the employee, and that to the best of the employer’s knowledge the employee is authorized to work in the U.S. Individuals that are granted DACA are authorized to work only after receiving an Employment Authorization Document, (EAD) Form I-766. In other words, an individual who has merely applied for DACA, and who has not yet received the EAD, would not yet be authorized to work.
Employers should exercise caution when dealing with individuals who state that they are applying for DACA, as it would more than likely mean that they are currently not authorized to work. Although many people have filed for DACA, only 29 DACA cases have been completed by DHS as of September 13, 2012 (last posting by DHS). However, factual situations can vary widely, and because of the many technical details that are involved in work authorization issues, employers are advised to contact a qualified immigration attorney.
Employers must also be weary of current employees that disclose facts or circumstances that would give the employer constructive knowledge that the employee is not actually authorized to work. Constructive knowledge may include situations where an employer has information available to it that would indicate that the individual is not authorized to work. Again, if an employer knows that an employee has applied for DACA, but has not yet received the EAD, the employer should contact a qualified immigration attorney to determine if the employer may have constructive knowledge that the employee is not authorized to work. Employers who continue to employ a worker without authorization face civil and, in some cases, criminal liability.
Even more challenging is that all work authorized individuals, including DACA recipients, are protected from document abuse. Employers cannot specify which documents they will accept from an employee. Specifically, employers cannot demand to see a DACA recipient’s EAD. This was also affirmed in a letter dated September 10, 2012, from the Department of Justice, Office of Special Counsel. That letter also states that employers may not use the two year temporary nature of DACA recipient’s employment authorization as a pretext for discrimination on the basis of national origin.
The potential issues regarding DACA, employment authorization, and discriminatory issues can be complex. The attorneys at the Harry Gee & Associates are well qualified to provide expert advice to employers with regard to their responsibilities and to advise of the risks and potential consequences so that employers can make the best and most informed decision.
 http://www.uscis.gov/childhoodarrivals To be eligible an individual must 1) Have come to the U.S. under the age of sixteen; 2) Have continuously resided in the U.S. for at least 5 years preceding June 15, 2012 and are present in the U.S. on June 15, 2012; 3) Currently be in school, have graduated from high school, have obtained a GED, or are honorably discharged veterans of the Coast Guard or Armed Forces of the U.S.; 4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and 5) Not be above the age of thirty.
 8 CFR §274a.1(l)(1).
 INA §274B(a)(6).