Employers should not provide employment verification letters specifically to support a deferred action request by employees, so-called DREAMers, seeking protection from deportation.
That’s the advice from Kimberly Clarke, an attorney hired by the National Council of Agricultural Employers to advise them on the matter.
In June, the Obama administration said it would no longer deport undocumented workers who had come to this country as children, had broken no laws, but do not have citizen or resident status that makes them eligible to work.
Applying for this deferred status, however, implies admission of their illegal status and lack of work authorization. An employer who provides verification of employment risks admitting violation of federal and possibly state and local laws against knowingly employing unauthorized workers, Clarke said.
The Department of Homeland Security has issued guidance indicating that employment verification information will not be shared with Immigration and Customs Enforcement for enforcement purposes, but this “safety net” is not a safe harbor for employers, Clarke said. The so-called DREAM Act (acronym for Development, Relief, and Education of Alien Minors) is proposed legislation, but not a law and does not a bind future administration.
“The application process may lead DREAMers to request information from employers resulting in potential obligations and liability for employers,” she said.
“While employers cannot prevent employees from using employment verification information already in their possession such as pay stubs or other payroll records, employers should not provide employment verification letters specifically to support a deferred action request,” she wrote in her opinion.
“In addition, employees that disclose that they are unauthorized and will be applying for deferred action should be placed on unpaid leave until they obtain work authorization. If the employee continues to work after disclosing unauthorized status, the employer is knowingly employing an unauthorized employee.
“Employers should not risk providing documentation that could potentially make them the target of a Form I-9 audit or other liability,” she said.