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I-9 E-Verify Immigration Compliance

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  1. Effects of Temination of DACA on Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), media focus has been on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients.

    Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely).

    But before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018.

    As an example, DACA employee Jose has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD (if the renewal is filed by October 5, 2017). Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate. Thus, employers must be observant of the EAD’s expiration date.

    How does an employer even know whether the EAD is through DACA, TPS, or withholding of removal? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19.

    Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. However, if an employer chose to discharge a DACA recipient based on his DACA status, it is very unlikely that the discharge would be unlawful under the anti-discrimination provisions of the Immigration and Nationality Act.

    Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4000, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties.

    For the answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, available on Amazon at http://www.amazon.com/dp/0997083379.
  2. DACA Recipients not protected from Citizenship Discrimination

    By Bruce E. Buchanan, Siskind Susser PC

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    The Office of the Chief Administrative Hearing Officer, through an Administrative Law Judge (ALJ), issued a decision in Gonzalez-Hernandez v. Arizona Family Health Partnership, 11 OCAHO no.1254 (July 2015), finding that the employer did not discriminate against the Complainant, Brian Gonzalez-Hernandez, because a DACA recipient is not a protected individual for citizenship status discrimination. Further, there was no document abuse.

    Gonzalez-Hernandez, a DACA recipient with an Employment Authorization Document (EAD), applied for a position as a healthcare navigator. The job required extensive travel throughout Arizona. Thus, the job description required a valid Arizona Driver’s license. Arizona Family Health Partnership (AFHP) offered Gonzalez-Hernandez the job and requested him to provide proof of an Arizona driver’s license. Gonzalez-Hernandez stated he only had a California driving permit.

    Thereafter, AFHP rescinded their offer of employment due to the lack of an Arizona driver’s license, but stated that once Gonzalez-Hernandez obtained such a driver’s license, he would be eligible for the position. AFHP cited the state law which requires anyone who works in Arizona for at least seven months in a year must obtain an Arizona driver’s license. At this point, Gonzalez-Hernandez notified AFHP that he was a DACA recipient, and under Arizona state law, was unable to obtain an Arizona driver’s license.

    After AFHP hired someone else, Gonzalez-Hernandez filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging discrimination and document abuse. Thereafter, the OSC provided a letter to Gonzalez-Hernandez giving him the right to pursue an action before OCAHO. Gonzalez-Hernandez filed such an action.

    The ALJ found Gonzalez-Hernandez was not protected by the statute – a protected individual is a citizen or national of the United States, a permanent resident, refugee, asylee, or temporary resident agricultural worker. A DACA recipient does not fit into any of these categories; thus, this allegation was dismissed. The ALJ also dismissed the document abuse allegation for several reasons – Gonzalez-Hernandez was never asked to complete an I-9 form. AFHP’s request for a driver’s license was not to determine work authorization, and the request was for a legitimate, non-discriminatory reason – the job required an Arizona driver’s license.
    Takeaways

    Citizenship discrimination is limited to only those protected individuals and a DACA recipient is not protected. Furthermore, in order to establish document abuse, an employer must request an employee to complete an I-9 form.

    Updated 08-19-2015 at 11:54 AM by BBuchanan

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