I-9 NEWS: DACA AND DAPA EXPANSIONS IMPACT EMPLOYERS

In November 2014, President Obama announced the expansion of two similar immigration acts: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA). Each act has been modified to allow more people to benefit from their protections. DAPA has implications for all employers while DACA continues to impact hiring managers who seek younger employees. The DACA expansion went into effect 90 days after the President's announcement, while DAPA will be expanded 180 days following his executive action decision.

Candidates may qualify for DACA if:

• They entered the US prior to their 16th birthday
• Have lived in the country continuously since June 15, 2007
• Were under the age of 31 as of June 15, 2012
• Have not been convicted of a felony, significant misdemeanor or three or more other misdemeanors
• Do not otherwise pose a threat to national security or public safety.

Candidates may qualify for DAPA if:

• They have lived in the United States continuously since Jan. 1, 2010
• Have no lawful status on Nov. 20, 2014
• Were physically present in the United States on Nov. 20, 2014
• At the time of making a request for consideration of DAPA, had on Nov. 20, 2014, a child of any age or marital status, who is a US citizen or lawful permanent resident
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors
• Do not otherwise pose a threat to national security
• Are not an enforcement priority for removal

This legislation allows qualifying individuals to lawfully work in the US. As a result, a number of people not previously eligible for employment may soon possess the authorization necessary to secure work. For workers who may have used fraudulent documents to obtain a job, they may now be protected under DACA or DAPA. Hiring managers who must deal with such employees, should take special steps to avoid extra attention or an I-9 audit.

If an employee admits he or she was ineligible to work in the US when hired, but now has proper documentation, the initial reaction might be to terminate. Note: As long as the original documents employers used during onboarding appear to be reasonably genuine and relate to the person presenting them, the employer is deemed to have exercised diligence and in compliance with completion of the Form I-9.

When an employee comes forward to tell an employer that he or she was not eligible to work in the US at the time of hire, it is within the discretion of the employer to decide how the company updates the employment status. A company may elect to terminate the employee or update the employee’s Form I-9 with the valid work authorization, noting and initialing the changes. Aurico recommends using an electronic Form I-9 storage system, when this option has been selected, to automatically denote changes and protect against omissions or mistakes.

When an employee comes forward to update his or her employment status due to newly discovered work authorization through the recent executive action, the employer must update the Form I-9 and ensure HR is using E-Verify, the background check program designed by the federal government. It is important to perform both actions because any deficiency may point to poor hiring practices and failure to detect fraudulent documents.