Employers carry the responsibility of keeping current with good employment practices as dictated by the federal government. Proper Form I-9 compliance for DACA recipients and non-DACA recipients alike is the key to keeping a company compliant and free from expensive and potentially damaging violations.
What does DACA stand for?
DACA is an acronym relating to immigration that stands for Deferred Action for Childhood Arrivals. The term was largely coined when the United States’ Department of Homeland Security stipulated in 2012 that some individuals entering the country as children that met all guidelines set forth by the government could in fact ask to be considered for something called deferred action.
Deferred action is often defined as the discretionary determination to defer the action of removing an individual from the country. Individuals granted deferred action are typically viewed as lawfully present for as long as his or her deferred action is in effect in the eyes of the Department of Homeland Security.
In most cases, the status of deferred action usually lasts two years. However, individuals can request a renewed status at the end of that time period. These renewals are generally reviewed on a case by case basis.
Depending on current law, an individual granted deferred action by the American government due to DACA may be considered eligible to work by the United States Citizenship and Immigration Services department (USCIS). This usually applies only if he or she is able to prove an economic necessity for employment.
Form I-9 Compliance for DACA Recipients
It is not uncommon for an employer to learn of an employee’s DACA status during his or her first week of employment when the Form I-9 is completed. The Form I-9 is a federal document that came into existence courtesy of the 1986 Immigration Reform and Control Act. This legal document assists the federal government in verifying the identity and employment eligibility of individuals hoping to work in the United States.
There are three main parts to the Form I-9. The first section asks the employee to provide required personal identity information in full by the first day on the job. The second section of the form must be completed by employers within three days of the employee’s first day of work. It mandates that the employee provide acceptable Form I-9 documentation which the employer will then examine for authenticity and work eligibility. The final section of the form requires employers to update the I-9 should a change occur that affects reverification of work eligibility or a rehire.
Form I-9 compliance for DACA recipients generally comes into play for section two of the form. Individuals who have been granted eligibility to work in the United States are issued valid documentation of such in the form of an employment authorization document (EAD). This document is usually valid as a List A document for section two of the Form I-9.
DACA Considerations for Employers
By following the guidelines set forth by the Form I-9, employers are well on their way to staying I-9 compliant. However, there are several additional considerations that employers may want to take into account for I-9 compliance for DACA recipients.
- Understand the DACA EAD’s Role for the Form I-9. Employers should recognize that the DACA EAD is usually considered an approved List A document for section two of the Form I-9. If this is the case, it is crucial that employers do not put a DACA recipient through additional inquiries or request additional documentation. Such actions could be observed as discriminatory, and discrimination of this type is prohibited by federal law.
- Know reverification of work eligibility is required for DACA EADs that are set to expire soon. As stated in section three of the Form I-9, employers must re-verify an employee’s eligibility to work in the United States if there is a change in the employee’s eligibility status.
- Enlist the help of I-9 compliance software. With the time and knowledge required to stay on top of the Form I-9 process, many companies are increasingly turning to I-9 compliance software to streamline the process. This type of software can be invaluable to companies by providing helpful prompts and timely notifications for missing form fields, common errors, document retention, document expirations, and more. One of the most sought-after features of this type of software is its ability to provide users with a general picture of the company’s I-9 compliance for DACA recipients and non-DACA recipients without waiting for an official audit.
Why I-9 Compliance for DACA Recipients is Important
I-9 compliance for DACA recipients is important because it is the law. Employers who are found not to be Form I-9 compliant during an official audit can be subject to some serious consequences. Instances of non-compliance are assigned on a case by case, or employee by employee basis. For each violation that is found, a fine may issued, and fines can add up quickly.
Civil violations can be cited if there is evidence of continued employment of an unauthorized alien, document abuse, or discrimination against an employment authorized individual. Criminal violations often deal with a purposeful pattern of hiring, recruiting, and referring unauthorized aliens for a fee.
While some violations may result in only minimal fines, multiple violations can result in numerous fines that can substantially affect a company’s profit margin. In addition, some more serious violations can even result in the loss of workforce or of a business license.
I9 & E-Verify Software(2)