What employers should know about immigration reform

Controversy has exploded over President Obama’s Nov. 20 announcement regarding immigration-related executive actions. As of this writing, the U.S. House of Representatives was considering legislation to block the president’s proposed actions and the White House was threatening a veto. Politics aside, businesses and affected individuals should understand the practical implications of the president’s announcement.

The president’s plan is focused on people who already are in the United States but do not have status to remain here lawfully. To a lesser extent, the plan is intended to make administrative changes for individuals who have entered or are seeking to enter the United States through formal, lawful immigration processes.

Since June 2012, the Department of Homeland Security has used its discretion to determine whether certain people who came to the United States as minor children were born on or after June 15, 1981, had resided continuously in the United States since June 15, 2007, and met other guidelines could defer removal actions for two years. Even though such persons weren’t lawfully present in the United States, they could receive employment authorization, live and work here without being referred to Immigration and Customs Enforcement for removal proceedings during that two-year period. This period could be extended by renewal, if there isn’t a change to their deferral conditions (such as lengthy departure from the United States or conviction for certain crimes). This is known as the Deferred Action for Childhood Arrivals program.

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The president’s planned action would alter DACA in a few ways:

It would remove the upper age restriction, allowing persons born prior to June 15, 1981, to apply;

It would require continuous residence in the United States since Jan. 1, 2010, instead of the prior June 15, 2007, residency date; and

It would extend the period of deferred action and employment authorization for those accepted into DACA from two to three years. The three-year period would apply to pending applications and those received after the president’s announcement, and the U.S. Citizenship and Immigration Services division says it is “exploring means to extend previously issued two-year work authorization renewals to the new three-year period.”

The president’s plan also would extend deferrals to eligible parents of people who are U.S. citizens or lawful permanent residents under a program called Deferred Action for Parental Accountability.  If these parents do not have status to remain lawfully in the United States, the president’s plan would allow them to apply for DAPA if they meet certain requirements:

They must have resided in the United States continuously since Jan. 1, 2010;

They must be the parents of a U.S. citizen or lawful permanent resident born on or before Nov. 20, 2014 (the date of the president’s announcement); and

They must not be an “enforcement priority for removal” as set forth in the DHS memo regarding “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.”  Under that memo, the highest priority for removal is for people who are “threats to national security, border security, and public safety.” The second priority is for persons who are “misdemeanants and new immigration violators,” and the third is for “other immigration violations.”

Employers and people whose applications for DACA or DAPA are accepted should be aware of this information to support and maintain proper I-9 form records. People for whom applications for DACA or DAPA have been accepted and who are authorized to work will be issued an Employment Authorization Document. When hiring these people, employers must fill out the proper information on the I-9 form, including the employee’s employment authorization expiration date and USCIS/Alien Registration Number; the EAD issued by USCIS is acceptable for the I-9 form.

Employers are responsible for maintaining current I-9 records. If an employee’s EAD has expired and the employee has not presented a new EAD with updated expiration information, the employee may no longer be authorized to work in the United States. Employees should provide updated EAD documents to their employers to maintain their employment eligibility. Employers who participate in E-Verify should verify the information on an I-9 whenever a completely new I-9 is filled out, either by a new employee or by an existing employee whose information in Section 1 of the I-9 has changed.

Deferred employees who otherwise lack lawful status to remain in the U.S. and employers’ human-resources personnel should take steps to study these programs thoroughly. Additional details about DACA and DAPA, DHS priorities for removal, the I-9 Form and E-Verify can be found on the website for U.S. Citizenship and Immigration Services at uscis.gov and on the DHS website at dhs.gov.

Daniel W. Jones, an attorney for Coan, Payton & Payne LLC at the Greeley office, can be reached at djones@cp2law.com or 970-339-3500.