President Obama’s recent executive actions on immigration have opened the doors to potentially millions of workers, at the same time as they have made things much more legally complicated for employers. Both sides may now need legal help understanding how these actions affect their rights and responsibilities.
In particular, employers need to be very careful because there are a lot of uncertainties about how to legally treat workers who may be affected by the changes.
First, here’s some quick background: Back in 2012, President Obama put in place a program known as “Deferred Action for Childhood Arrivals,” or DACA. This program allowed certain young, undocumented immigrants to receive temporary permission to stay and work in America.
Under DACA, undocumented workers who were born after June 15, 1981 and were under 16 when they came to the U.S. could stay and work here as long as they had a high school diploma or G.E.D. or were working toward one, or were serving in or had been honorably discharged from the military. They also needed a clean criminal record.
This past fall, President Obama announced an expansion of DACA as well as a new program called “Deferred Action for Parental Accountability,” or DAPA. These changes are expected to expand protection to as many as five million more people.
Under DAPA, the government will no longer seek to deport undocumented immigrants who have been in the U.S. for at least five years and are parents of U.S. citizens or permanent residents. Instead, these people will be able to stay and obtain a work permit that will be valid for three years (and may be renewed).
The process is still being worked out, so it’s not entirely clear exactly how people will go about applying for DAPA, what the procedure will be, and how long it will take.
It’s important to know that there’s an older federal law on the books called the Immigration Reform and Control Act, or IRCA. This law prohibits employers from knowingly hiring illegal immigrants.
In theory, there’s a conflict here. Under DACA and DAPA, the government is choosing not to deport certain people and even to give them a work permit, yet under IRCA, it’s illegal for an employer to hire them.
In practice, it’s hard to imagine that the government would go after an employer who hired someone with a work permit. The real problem is if an employer hires someone who is in the process of applying for a permit under DACA or DAPA. What if the person’s application is rejected?
Federal law also says that employers who discover that a current employee is undocumented are required to fire the person. So what happens when workers who are applying for DAPA protection ask their employer for documentation to prove their work history? At that point, the employer will be on notice that the employee is, at least for the time being, undocumented. Does the employer have to fire the person?
The answer is unclear. Again, it seems unlikely that the government would object if the employer kept the person on the payroll, but it’s probably technically illegal to do so.
Also, some companies have an “honesty policy” that says employees cannot lie to the company, and if they do, they will be terminated. Must a company fire an employee who steps forward as DAPA-eligible, since this means they lied about their immigration status when they were first hired?
An employer could choose to “forgive” such an employee, but if another worker is later fired for violating the honesty policy, he or she could claim that the policy was being applied in an unequal and discriminatory manner.
Of course, it’s also still illegal for businesses to “profile” their workers and try to guess who might be undocumented.
Because the law is unclear and the rules are rapidly developing, it’s a good idea to consult your employment attorney with any questions.