FORETHOUGHT - Whyte Hirschboeck Dudek SC

DEFERRED ACTION FOR
CHILDHOOD ARRIVALS: WHAT
EMPLOYERS NEED TO KNOW
Written by
Tiffany L. Hutchens
The Obama administration’s deferred
action for childhood arrivals (DACA)
program could grant a path for more
than 1 million unauthorized immigrants
to legally join the workforce. However,
employers who know that an employee
is applying for DACA relief may be at risk
of violating federal immigration law. These
risks may be mitigated by formalizing the
employment verification letter request
process. This will limit an employer’s
knowledge that an employee is currently
unauthorized and applying for DACA relief.
What is DACA
DACA provides temporary relief from
possible deportation and allows successful
applicants to obtain employment
authorization. DACA applicants, by their
very nature, are not legally authorized to
work in the United States. Immigrants who
came to the United States as children and
meet the following requirements may be
eligible for DACA relief:
1. Came to the United States before
turning 16 years of age;
2. Demonstrate at least five years
of continuous presence as of
June 15, 2012;
3. Are under 31 years of age;
4. Are enrolled in school, have either
graduated from high school, passed a
GED test, or served honorably in the
armed forces of the United States; and
5. Do not have any serious criminal history.
Applicants are required to prove these five
elements with supporting documentation.
Employment verification letters or paystubs
may be requested by applicants to
demonstrate the second element—that
they have been in the United States for five
continuous years prior to June 15, 2012.
What are an Employer’s Risks
Federal immigration law prohibits
employers from knowingly hiring someone
who is not authorized to work. Civil and
criminal liability may attach to an employer
who knowingly employs unauthorized
workers. An employer’s “knowledge” may
be actual or constructive, and in the DACA
context, it will attach when an employee
asks an employer about how to apply
for the DACA program or requests proof
of employment for DACA purposes. It is
important to note that not every request
for an employment verification letter
implicates immigration law. There are
many reasons why someone may need
to verify employment with an employer,
and a simple request for confirmation of
employment dates with no mention of the
DACA program should not raise a red flag
for employers. Furthermore, employers
should not rush to judgment regarding
an individual’s immigration status if talk
of DACA is heard around the workplace.
However, if an individual specifically
requests employment verification for
DACA purposes, an employer is deemed
to have knowledge that the individual is
not work authorized.
While many employers may be compelled
to help an employee gain temporary
relief from deportation and lawfully join
the workforce, the knowledge gained
regarding an employee’s illegal status
exposes the employer to potential liability
for the employment of unauthorized
workers. Employers who know that a
current employee is applying for DACA
relief because he or she is not authorized
to work in the United States will have
to fire the employee or face liability for
violating immigration laws.
HUMAN RESOURCES 23