Guidance on I-9/Employment Verification for DACA Applicants

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.     According to recent USCIS figures, there have been approximately 420,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

• Must be under the age of 31 as of June 15, 2012;
• Must have arrived in the United States before the age of 16;
• Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
• Must have entered the United States without inspection or have expired status as of June 15, 2012;
• Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
• Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.