HR Legalist

Illegal Immigrants and DACA: What Is It and Why Is It Important?

In our blog post on November 17, 2014,  we summarized the substance of the White House announcement laying out a number of executive actions that President Obama is taking to address the fact that nearly twelve million illegal immigrants currently reside in the United States.  Among those actions is an expansion of the DACA program.  But, what is DACA and why is it important for employers?

DACA stands for “Deferred Action for Childhood Arrivals”; and it is a program which was initiated by the Obama administration in August 2012 to provide some relief for the several million young men and women who were brought to this country illegally at a very young age, most often with their parents.  The decision to violate U.S. immigration laws was their parents’ and not their own.   The Obama administration enacted the DACA program to offer “deferred action” to these young people.  In the context of immigration enforcement, “deferred action” refers to a discretionary grant by the Department of Homeland Security or the Justice Department to suspend removal (deportation) proceedings for a period of time, usually for some humanitarian purpose.  The “action” being deferred is removal from the country.  For instance, former clients, a married couple, both illegal immigrants from Central America, had a son (a U.S. citizen) who suffered from a severe congenital liver disorder.  We helped them petition the Department of Homeland Security for a grant of deferred action so that they could remain in this country while their son received medical attention.  The petition was granted and the couple was provided with two kinds of relief: the U.S. government agreed not to initiate removal proceedings and also granted work authorization for a period of time, in this case for one year, renewable annually with proof of continued eligibility. However, deferred action is not a visa and does not bestow any kind of legal immigration status.  At any time the government reserves the right to initiate – or continue – removal proceedings.  Moreover, deferred action will not be granted to an individual who has a criminal background or otherwise poses a threat to the security of the United States.

Until the DACA program was announced, “deferred action” was usually granted on an ad hoc basis, and most often for some humanitarian purpose, such as the example above of the couple from Central America. When President Obama enacted the DACA program, the administration extended deferred action on a systematic level to all persons who meet the following qualifications:

1. Were  under the age of 31 as of June 15, 2012;
2. Came to the United States before the age of 16;
3. Have continuously resided in the United States since June 15, 2007, up to the present time; 
4. Were physically present in the United States on June 15, 2012, and at the time of making a request for consideration of deferred action with USCIS;
5. Had no lawful immigration status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The DACA program allows qualified applicants to receive work authorization for an initial period of two years, which can be renewed every two years.  Along with work authorization comes the eligibility to apply for a social security number and, in most states, a driver’s license.  Having  work authorization and a social security number allows DACA recipients to join the workforce, pay into the social security system, pay taxes, and, live more fully as contributing members of society.  Thus far, more than 580,000 people have been granted DACA benefits since August 2012.

On November 20, 2014, President Obama announced that the administration would be extending DACA benefits to a broader set of applicants; and, on February 18, 2015, USCIS will begin accepting applications under the expanded DACA program, which extends the deferred action period and employment authorization to three years from two years, and provides DACA benefits if an individual:

1. Entered the United States before the age of 16;
2. Has lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
3. Is of any age (removes the requirement to have been born since June 15, 1981); and
4. Meets all the other DACA guidelines in items 5-7 above. 

It is anticipated that 300,000 additional people will qualify for this program and will join the workforce.  This fact alone should answer the question posed in this article’s title:  Why is DACA important for employers?  Nearly one million new workers have sought or will seek employment because of this program.  Moreover, thousands who have been working illegally, but now have valid work authorization as a result of DACA, will be presenting valid “Employment Authorization Documents” (EAD) and social security numbers for I-9 purposes.  It is imperative that your HR staff be trained to recognize a valid EAD.  And if you haven’t done so already, now is the time to undertake the following important steps:

• Consult  the DACA guidelines provided by USCIS.
• Conduct an internal I-9 audit to ensure you are compliant with documentation regulations. 
• Familiarize yourself with what an EAD looks like, so that, when an employee or potential employee presents one, you will not reject it simply because it isn’t a “green card,” passport, or driver’s license.  USCIS has provided a helpful set of images of I-9 documents here.
• Recall that a social security number is required for employment, but it is illegal to demand a social security card as a required document for purposes of the I-9.  These two parts of the hiring process should be kept separate.

Employers in the hospitality, grounds keeping and maintenance, agriculture, meat packing, and construction businesses should pay particular attention to the new, expanded DACA program.  These industries have historically employed more than 75% of the illegal immigrants in the U.S. who may have presented false documentation in the past.  An employee may present new, valid documentation as a result of receiving DACA benefits.  Additionally, new DACA recipients may seek employment for the first time.  The expansion of the DACA program will pose many thorny legal issues for employers related to I-9 compliance.  Employers should review the USCIS guidelines and consult with an attorney in advance in order to be prepared.  In the coming weeks and months, additional measures announced by President Obama aimed at improving the nation’s immigration system will be implemented.  Log on and stay tuned to HRLegalist for insights about how any such measures will affect employers.