Three programs initiated by President Barack Obama could give more than 5 million undocumented immigrants the opportunity to obtain temporary work permits and stay in the United States without fear of being deported.
But employers need to take care that they don’t end up in trouble with immigration authorities themselves.
The Deferred Action for Childhood Arrivals (DACA) program, created by executive action in June 2012, allows people between 15 and 30 years old who entered the United States at under 16 to apply for a renewable two-year work permit.
Applicants must have been in the country continuously since June of 2007, have been enrolled in school or a GED program, and have no criminal convictions or gang affiliation.
It’s estimated that 1.2 million people could qualify, of which 600,000 have obtained work permits, immigration attorney Thomas Roach of Roach and Bishop, LLP, in Pasco, Washington, estimated during a recent webinar presented by the Washington Farm Labor Association.
A revised program, sometimes referred to as DACA 2.0, which the President announced last November, reduced the residency requirement by three years and eliminated the upper age limit of 30 for applicants, potentially expanding access to another 300,000 people.
The third program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), offers temporary deferred deportation for people who have been in the United States since January 1, 2010, and have children who are U.S. citizens. This could apply to more than 4 million undocumented immigrants, Roach estimates.
The original DACA program is still in effect, but DACA 2.0 and DAPA have been challenged in court. A suit filed by Arizona’s Maricopa County Sheriff Joe Arpaio was dismissed, but representatives of 17 states filed a similar case in a federal district court in Brownsville, Texas. The judge temporarily suspended the programs while the case is being litigated.
At issue is not whether the president overstepped his powers but whether it was a violation of administrative procedures. An appeals court hearing was scheduled for April 17 to decide whether to lift the injunction to allow the programs to continue in the meantime.
If they do resume, employers should brace themselves for a flood of requests from employees wanting documentation, Roach said. Applicants to any of the three programs have to prove that they have lived continuously in the United States for the required periods of time, and one of the best ways to do that is to provide pay-check stubs.
The problem arises if a worker says they need the information to apply for DACA or DAPA, because that means that the employer is now knowingly employing an undocumented worker.
“Once you have actual knowledge that your employee is unauthorized to work, you’re in trouble,” Roach warned.
There are many other reasons an employee might ask for their employment history documents, such as to apply for a loan, so if the employee doesn’t give a reason for needing them, the employer should be safe.
For an employer to get into trouble with U.S. Immigration and Customs Enforcement, a series of events needs to happen, Roach said. First, ICE has to audit your I-9 (employment eligibility) forms, which doesn’t happen very often.
Second, they have to find employees who are using false documents. Third, you have to know or should have known they were using false documents. And, fourth, ICE has to know you knew or should have known.
Roach said, in his experience, ICE is more interested in getting the undocumented employee off the job than in pursuing the employer, but employers need to be cautious.
When an employee qualifies for DACA, he or she receives an employment authorization document (work permit) and a valid social security number and card.
On the social security card, it will state that it is only valid with a work permit for, usually, two years, although some three-year permits have been issued.
When the employee presents these documents, the employer knows that the employee previously lied about their eligibility for employment when they were hired. Roach said that might be grounds for firing the worker, but employers should treat people consistently and resist the temptation to fire only those workers they are looking for an excuse to get rid of.
“If you fire some and not others, that’s the kind of stuff where you can get into trouble with the Department of Justice,” he warned.
Roach stressed that DACA/DAPA does not give the immigrant any legal status like citizens, permanent residents (green card holders), or people visiting under student or tourist visas or guest worker programs. They just have a temporary deferment from deportation.
“It doesn’t give you any rights,” he said.
When an employee presents a work permit obtained through DACA or DAPA, the employer needs to fill out a new I-9 form and staple it to the old one (which should be kept in case of audit).
Take care not to require more documentation for the new I-9 form than necessary, bearing in mind that the new social security card is only valid with a work permit.
Note when the permit expires, because as soon as it expires—unless it’s renewed in the meantime—you will be knowingly employing a person not authorized to work.
It’s important that workers apply for renewals well ahead of the expiration date because it can take time, Roach said. “If a person turns into a pumpkin and he does not have a new work permit, he’s out of luck.”
Many applicants are worried that if the program ends, they could be targeted for deportation based on the information they gave in their applications. For sure, employers would have to let them go since they would know they’re undocumented.
“What’s going to happen two years from now when Obama is not president and Ted Cruz is president?” Roach wondered. “Is Ted—or whoever—going to renew the program? More likely than not, if a Republican gets elected, they won’t renew the program, so it’s going to be very interesting to see what happens.”
It’s unlikely, however, that the next president (no matter how conservative or how opposed to immigration they say they are) will find it practical to deport all five million people who qualify for the program, Roach said.
“Five million people is equivalent to the entire population (every man, woman, and child) in Oregon plus Idaho,” he pointed out. “What’s the chance of rounding up that many people? It’s impossible. And who would do the work? Plus, probably a more important thing, is that 60 to 70 percent of the American public want legalization of the people who are here undocumented—just the public opinion associated with this. If the government seriously wanted to round up and throw out all those people, there’s all sorts of old white people, like me, who would be lying down in front of the buses, or chaining themselves to the buses. I can’t imagine it would happen but, theoretically, it could happen.”
Roach said his company has handled more than 350 DACA/DAPA applications over the past three years, which is the most of any law firm in the state. They are still receiving applications because people want to get their paperwork in order so they can be at the front of the queue when the programs resume.
“When there’s 4 million people wanting to do this at the same time, it’s going to be absolute chaos,” he said. “If it doesn’t go forward, we still have their file, so we’re ready for the next wave. You can’t throw 12 million people out of the country, so sooner or later there’s going to be another legalization plan.” •