New ‘undocumented worker’ program causes legal issues

A new government program that allows certain undocumented immigrants to receive temporary work authorizations is creating legal issues for both workers and employers.

The program is called “Deferred Action for Childhood Arrivals,” or DACA. It allows undocumented workers who were born after June 15, 1981 and were under 16 when they arrived in the U.S. to receive authorization to stay and work here.

Applicants must (1) have a high school diploma or G.E.D., (2) be currently enrolled in high school or an equivalency program, or (3) be serving in or honorably discharged from the military. They must also have a clean criminal history (although they can have minor traffic violations on their record, or an arrest for driving without a license).

The program could be a good opportunity for such workers and for employers who want to hire them, but it does come with risks.

First, employers are still required by federal immigration law to terminate known undocumented workers. This creates a tricky situation when workers who are filing for DACA start asking their employers provide documentation so they can prove their employment history. If employees disclose that they are filing for DACA, the employer in theory is required to terminate them, and can’t rehire them until they officially receive work authorization.

At the same time, employers are not allowed to engage in “profiling” to determine who might be undocumented; if they do, they could be sued for discrimination. So employers need to be careful not to be too proactive and assume that workers are applying for DACA.

Once a current employee receives DACA authorization and presents it to the employer, other issues can arise. For instance, now the employer knows that when the worker was first hired, the worker misrepresented his or her immigration status on an I-9 form.

As long as the prior documents appeared to be genuine and the employer had no reason to suspect that the worker was unauthorized, the employer can simply correct the information on the I-9 form and keep the employee.

On the other hand, what if the company has a policy that punishes or terminates employees for providing false information on an employment application? If the company allows a DACA employee to get away with a misrepresentation, but later punishes another employee for lying, it could potentially be charged with discrimination.

If you have any questions about this program or about undocumented employment in general, we’d be happy to assist you.

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