Companies have long since been the backbone of America’s economy by providing jobs to citizens and creating revenue. These companies collectively employ millions of individuals each year. As established by the Immigration Reform and Control Act of 1986, the federal government may use employment within the United States as a checks and balances tool to verify work eligibility and identity of employment applicants. It has never been more important for companies to be Form I-9 compliant and understand the importance of DACA guidelines for employers.
WHAT IS DACA?
DACA is an immigration acronym for the term Deferred Action for Childhood Arrivals. In 2012, America’s Homeland Security Department declared that some individuals who entered the United States as children and met all applicable guidelines could request to be considered for deferred action for two years, which would then be subject to renewal.
Deferred action is categorized as a discretionary determination to defer the removal of an individual. An individual who receives deferred action is generally authorized by the Department of Homeland Security to be lawfully present in the United States of America for the duration of the period that deferred action is in effect.
Depending on current law, it is possible for an individual’s removal from the country to be deferred due to DACA, which could possibly allow him/her to be authorized to work by the United States Citizenship and Immigration Services if the individual can establish that he/she has a valid economic necessity for employment.
Form I-9 and DACA Guidelines for Employers
To thoroughly understand the DACA guidelines for employers, a general understanding of the Form I-9 is required. The Form I-9 is a legal document that was established by the Immigration Reform and Control Act of 1986 to accurately verify the employment eligibility and identity of individuals wanting to work in the U.S.
The Form I-9 consists of three main sections that are to be completed in part by the employee and in part by the employer.
- Section One: This first part of the Form I-9 is mainly the employee’s responsibility. This section requires the employee to complete it by the employee’s first day of employment and be truthful in the information provided. In this section of the Form I-9, the employer is responsible for ensuring the employee completes the information requested correctly.
- Section Two: This second part of the Form I-9 must be completed by employers within three days of an employee’s first day of work. The employee is required to provide acceptable Form I-9 documents that the employer will then examine for apparent authenticity and vouch for if found acceptable for work eligibility.
- Section Three: The last part of the form deals primarily with rehires and reverification. Section three is generally completed if an employee’s name changes, work authorization has expired, or if the employee is rehired within three years of the date listed on the Form I-9.
The Form I-9 plays a large role in understanding DACA guidelines for employers. A potential employee that has been granted employment authorization under the DACA program must have valid documentation of such, which may include an employment authorization document (EAD). The EAD may be presented as part of the individual’s documentation required for Form I-9 compliancy.
Employers must take note that the DACA EAD is usually included as an approved List A document for the Form I-9, and for that reason, employers may not request any additional documentation or put an individual through additional inquiries as it may be viewed as discrimination, which is against federal law.
If a DACA EAD is set to expire soon, an employer is responsible for re-verifying the employee’s eligibility to work in the U.S. as it pertains to section three of the Form I-9. It is worth noting that programs like E-Verify should only be used to check a DACA individual’s work eligibility status if there has been a change in the individual’s name or other similar stipulation as listed in section three of the Form I-9.
Why Employers Should Be Form I-9 Compliant
Whether it is an error on the Form I-9 or a misstep in adhering to DACA guidelines for employers, there are consequences for those companies who have compliance violations.
There are two main categories of violations, criminal and civil. Criminal violations tend to be related to an intentional pattern of recruiting, hiring, and referring unauthorized aliens for a fee. Civil violations tend to deal with document abuse, continuing to employ an unauthorized alien, discriminating against an employment authorized individual, and more.
The consequences for these penalties are assigned on a case by case basis and may range from a small fine to a substantial fine, loss of workforce, and possibly the loss of a business license.
Considerations to Help Employers Stay I-9 Compliant
Being found non-compliant can be a costly mistake for a company and its bottom line. For this reason, a company’s I-9 compliance status and adherence to DACA guidelines can be key for its success. There are several things a company should consider in order to stay within the letter of the law.
- Stay current on immigration laws. Over the years, different administrations have implemented, amended, or done away with various aspects of government programs. Historically speaking, change has been a constant. The dynamic status of controversial issues such as immigration require employers to have a thorough understanding of current law, including DACA guidelines for employers, in order to stay Form I-9 compliant.
- Utilize Form I-9 software. This software is typically created to be user friendly and provide helpful prompts and notifications that can alert employers of missing fields and some errors. This type of program is also useful in tracking documents and retention expirations as they relate to the Form I-9. For companies that prefer to stay ahead of the game when it comes to being I-9 compliant, this type of software may also include a centralized reporting feature that allows management to view a detailed snapshot of the company’s I-9 compliance at any time, rather than waiting for the results of an official audit.
I9 & E-Verify Software(2)