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Davis Brown Employment and Labor Law Blog

New Immigration Benefits, Including Employment Authorization, For Some Unauthorized Immigrant Workers - July 24, 2012

The Department of Homeland Security recently announced a new program for young people in the United States who did not enter legally or later lost their immigration status.  This program will allow people between the ages of 15 and 30, who were came to the United States when they were children (younger than 16 years of age), have been in the United States for the past five years, have a clean record, and are in school or have graduated from high school, to obtain "deferred action" on their deportation and a work permit.  This new policy is often being referred to as "Deferred Action for Young Immigrants."  

It is important to note that Deferred Action is not a legal status, nor will it lead - by itself - to U.S. residency or citizenship.  But those young people who qualify for Deferred Action will have authorization to live and work in the U.S., will be able to get valid social security numbers, and should be able to obtain valid driver's licenses in Iowa.

What does this mean for employers?  This may be very good news!  Most of these young immigrants are well-educated, talented, and hard working.  Many have been held back until now only by their lack of legal status.  If you are looking for quality new employees, this may be your answer.  

Additionally, giving these young people legal authority to work may help the U.S. economy.  Estimates of the number of young people who will benefit from this program range from 800,000 to 1.4 million people.  Walter Ewing of the American Immigration Council notes in a recent article:  "Beneficiaries of [this new policy] will have access to greater educational opportunities and better jobs, which in turn means more taxable income..  [This] translates into more tax revenue for federal, state, and local governments, as well as more disposable income to be spent in U.S. businesses."  

But beware:  Current employees may, to your surprise, benefit from this policy as well.  It is probably not news to you that some unauthorized immigrants have come up with ways to present seemingly real work authorization.  One of the things young people who will be eligible for Deferred Action will need is evidence that they have been present in the United States for the past five years.  They may approach you, their employer, and ask for a letter to show that they have been employed by you (and thus present in the U.S. while they have been working for you).  Unfortunately, if an employee would approach you with such a request, it puts you in a difficult position.

Of course, an employee who requests proof of employment is not necessarily unauthorized, and you should offer such proof to any employee in the manner your current policies dictate.  But if an employee reveals to you that he or she has been working with fraudulent documents, you should not continue to employ that person.  Employers can be punished and fined for knowingly employing unauthorized workers.  If you did not know your employee was not authorized to work in the past, then you would not have been "knowingly" employing him or her.  But once you know, you cannot continue to employ that person.  

Depending on your company policies, you could re-hire that person once he or she presents proof of authority to work (the "EAD" or "employment authorization document") through Deferred Action or otherwise.  

If you employ any non-citizen workers (and even if you don't), you probably have noticed how difficult it is to sort through the immigration documentation of your workers.  With the new Deferred Action policy, you will have yet a new group of immigrants, eligible to work, with newly-issued documentation that may not always be easy to understand.  We can help you sort through documents presented, as well as review your I-9s and hiring policies for compliance with U.S. immigration laws.

Remember that U.S. law prohibits employers from discrimination against individuals based on their citizenship or immigration status, so while dealing with immigration documentation can be confusing, you should not rule out potential employees based on their immigration status.  We can also assist you in putting policies and practices in place to balance these sometimes competing demands while accessing the talents of the young people who take advantage of the Deferred Action program.