Obama ‘Deferred Action’ Initiative Proves Problematic for Employers

Supporters of DREAM Act, DACA citizenship program could face off after election

By Theresa Minton-Eversole Nov 2, 2012

With the U.S. presidential election days away, attention remains focused on unresolved immigration issues that could resurface in Congress shortly after Nov. 6.

To date, Congress has failed repeatedly to pass bipartisan legislation—referred to as the Development, Relief, and Education for Alien Minors, or DREAM Act—which would qualify certain undocumented youths for a six-year conditional path to citizenship that requires completion of a college degree or two years of military service. Consequently, on June 15, 2012, the Obama administration announced its decision to implement the Deferred Action for Childhood Arrivals (DACA) initiative for unauthorized youth brought to this country as children. The DACA initiative offers a two-year, renewable reprieve from deportation to unauthorized immigrants who:

  • Are under age 31 and entered the U.S. before age 16.
  • Have lived in the country continuously for at least five years.
  • Have not been convicted of a felony, “significant” misdemeanor or three other misdemeanors.
  • Are in school, or have graduated from high school, earned a GED or served in the military.

Within this population of potential beneficiaries are those who are:

  • Between age 15 and 30, in high school or have a high school diploma, and are eligible for deferred action immediately.
  • Between age 5 and 14 and will be eligible in the future if the deferred action initiative remains in place.
  • Between age 15 and 30, are not in high school and don’t have a high school diploma. Members of this group might be eligible for deferred action if they get a GED or serve in the military.

Employers’ Nightmare

There are roughly 1.7 million illegal immigrants in the United States who are, or may become, eligible for the DACA initiative. Those workers who are DACA-eligible already are posing a quandary for U.S. employers, said Lynn Shotwell, executive director for the American Council on International Personnel (ACIP).

“Employees who are eligible for deferred action status may now apply for legal work authorization. The problem arises when employees come to the employer and say, ‘Actually, the documentation I gave you before was false; but look, here’s my new employment authorization,’ ” said Shotwell in a Sept. 27, 2012, webcast titled “Employment Verification: New Policies and Processes You Need to Know.”

Now, the employer knows these employees presented fraudulent documents and must determine whether to fire them for making a false statement on their original application, and whether they are eligible for rehire, she explained. The issue for employers is to act consistently in these situations, Shotwell added; if employers don’t, they might be at increased risk for a disparate impact claim based on national origin.

Attorneys Dan Brown and Bonnie Gibson, both partners with the law firm Fragomen, Del Rey, Bernsen & Loewy LLP, said during the same webcast that no matter what the outcome of the election or prospects for passage of pending DREAM Act legislation, employers must not knowingly hire or continue to employ a foreign national not authorized for employment. With the tightening of compliance enforcement by U.S. Immigration and Customs Enforcement (ICE), they advised employers to be even more diligent with their employment verification document retention practices.

“Employers need to verify and maintain proof of work authorization for ‘every current employee’ hired after Nov. 7, 1986,” said Gibson. “Once an employee is terminated, the Form I-9 must be maintained for the longer of three years from date of hire, or for one year from the date of termination.”

“ICE has modified its worksite enforcement strategy, with the number of I-9 audits dramatically increasing [in 2011 and 2012],” said Brown. “Bottom line is that employers need to be extra vigilant in their focus on I-9 compliance,” because the chances for a compliance audit are increasing.

DACA Implications

How should employers handle the implications of DACA?

Brown and Gibson went over the documentation that DACA-eligible workers may present to employers to prove their work eligibility.

“What employers are most likely to see are the I-766, or the employment authorization card, or a List A document,” said Gibson. “While we anticipate DACA-recipients will have Social Security cards, they should be restricted and not acceptable for work authorization without additional proof. Some states will issue driver’s licenses to undocumented workers; some won’t. It’s conceivable that they might have a List B or List C document, but most are likely to have the employment authorization card.”

Remember, employers are prohibited from asking for additional documents beyond what is legally required as long as the presented document appears reasonably genuine and relates to the employee.

What about correcting inaccurate or incorrect employment records?

Official records should be corrected when necessary to reflect identification changes, such as new names, Social Security numbers, etc., said Gibson. “Also, fill out a new I-9, but don’t get rid of old employment records or I-9s through a termination-rehire process. ICE hates when employers try to hide a person’s former employment.” Just add the new, updated form to the personnel record, she advised.

What if employees ask an employer for proof that they’ve been employed in the United States in order to apply for DACA?

“Employers are not obligated by any federal requirement to support employees’ requests for proof of employment,” Gibson said. “But some states require some records to be turned over. The key is to treat all requests equally and consistently.”

Because of the tremendous amount of uncertainty, “please sit down with your employment and immigration counsel before deciding how to handle DACA-eligible employees and job applicants,” Gibson advised.

Visit the USCIS website for more information about DACA.

Post-Election Prospects

The DACA program is set to expire in two years, and the Obama administration has stated that it is amenable to an extension. Republican presidential nominee Mitt Romney said that Congress should address this issue, adding that he would not revoke the status of those granted deferred action. It is not clear whether his administration would approve new requests. Over 200,000 applications have been filed, but only a small number of these have been adjudicated.

Meanwhile, it is extremely unlikely that either of the DREAM Act bills introduced in this Congress will be considered during the “lame duck” session following the election. On March 19, Rep. Chaka Fattah (D-Pa.) reintroduced the Dream Act legislation titled American Dream Accounts Act of 2012 (H.R. 4207), which has been referred to the House Subcommittee on Higher Education and Workforce Training. A related bill (S. 2194) was introduced by Sen. Christopher A. Coons (D-Del.) on March 15 and was referred to the Senate Subcommittee on Health, Labor, Education and Pensions. President Obama has said that he intends to make comprehensive immigration reform, including the DREAM Act, a high priority if he is re-elected.

ACIP will host a post-election webcast for its members on Nov. 8 to address what the 2012 election may mean for the future of U.S. immigration policy. To participate in the webcast, ACIP members may register here.

Theresa Minton-Eversole is an online editor/manager for SHRM.

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